Exhibit 4.32
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OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (AMENDED AND RESTATED)
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DISCOVERY ZONE, INC.
(Mortgagor),
to
▇▇▇▇▇▇▇▇'▇ CORPORATION
(Mortgagee)
Dated as of July 29, 1997
DOCUMENT PREPARED BY AND
AFTER RECORDING RETURN TO:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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[COLUMBUS, OHIO PROPERTY]
OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (AMENDED AND RESTATED) (as the same may from
time to time be extended, renewed or modified, this "Mortgage"), made as of
the 29th day of July, 1997, by DISCOVERY ZONE, INC., a Delaware corporation
("Mortgagor"), having its principal place of business at One Corporate
Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as
successor by merger to LEAPS & BOUNDS, INC., to ▇▇▇▇▇▇▇▇'▇ CORPORATION a
Delaware corporation ("Mortgagee"), having an address at ▇▇▇ ▇▇▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
A. WHEREAS, prior to Mortgagor's several predecessors in interest
filing their voluntary petitions for relief under chapter 11, title 11,
United States Code (the "Bankruptcy Code"), Mortgagor's predecessors in
interest with respect to the Mortgaged Property (as hereinafter defined),
Leaps & Bounds, Inc. ("LBI") had provided Mortgagee with a First Mortgage on
the Mortgaged Property, dated as of August 30, 1994 (the "Original
Mortgage,") and identified by the recording information set forth on Schedule
A hereto, to secure certain obligations owed to Mortgagee under the Agreement
and Plan of Merger among Mortgagee, Mortgagor, Discovery Zone, Inc., a
Delaware corporation ("Old DZI") and Discovery Zone International, Inc.
("DZII"), a Delaware corporation, dated as of August 30, 1994 (the "Merger
Agreement"); and
B. WHEREAS, pursuant to Section 11.2(a)(iii) of the Merger
Agreement, Old DZI agreed to defend, indemnify and hold Mortgagee and its
affiliates harmless in respect of all expenses, losses, costs, deficiencies,
liabilities and damages (including related and reasonable counsel fees and
expenses, and compensatory and demonstrable consequential damages) incurred
or suffered by Mortgagee as a direct result of, inter alia, any breach by Old
DZI or LBI of the leases or subleases relating to certain properties that
result in any payment by Mortgagee in connection with any guarantee by
Mortgagee of such leases and pursuant to Section 10.3(f) of the Merger
Agreement it was agreed that certain security would be provided to secure the
obligations under Section 11.2(a)(iii) of the Merger Agreement, including
without limitation, a first priority security interest in the Land and
Improvements (the "Agreement to Indemnify"); and
C. WHEREAS, following the filing of their respective prayers for
relief under the Bankruptcy Code, Mortgagor's predecessors in interest, Old
DZI, their affiliated debtors, including DZII and LBI (the "Debtors"), and
Mortgagee entered into the Stipulation and Order Between Debtors and
▇▇▇▇▇▇▇▇'▇ Corporation Providing For The Resolution, Settlement And
Compromise of Disputes And For Rent Deferrals And Allowance of Certain Claims
(the "Stipulation and Order") that was entered by the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") on
November 18, 1996, which was not appealed or otherwise challenged, became a
final order, remains in full force and effect and to which Mortgagor is
bound, Section 7 of which is captioned "CONTINUING SECURITY" and provides, in
pertinent part, that the valid and enforceable first priority security
interest on the
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Land and Improvements and certain other collateral shall secure the
performance and payment of all of the obligations of Mortgagor to Mortgagee
under the Notes (as hereinafter defined), any obligations of Mortgagee that
may arise in connection with the Assumption Locations whether pursuant to any
guaranty, lease, sublease or otherwise, any obligations of Mortgagor that may
arise in the event of a Liquidation, and any continuing obligations of
Mortgagor relating to the Rejection Location(s) and the Prior Rejection
Locations (as such terms are defined therein); and
D. WHEREAS, pursuant to the Stipulation and Order and 11 U.S.C.
Section 365, the Debtors, as predecessors in interest to Mortgagor, assumed
the subleases relating to certain properties (the "Assumed Properties") which
subleases (the "Assumed Property Subleases") expressly incorporate the
Agreement to Indemnify as it relates to any current or future obligations of
Mortgagee relating to the Assumed Properties; and
E. WHEREAS, pursuant to the Stipulation and Order and the Plan (as
hereinafter defined), this Mortgage hereby amends and restates the Original
Mortgage in its entirety in accordance with the terms and provisions set
forth herein; and
F. WHEREAS, this Mortgage, together with certain other Deeds of
Trust, Mortgages or similar encumbrances, are intended to and do secure the
obligations of Mortgagor and its predecessors in interest and the other
Debtors, to Mortgagee under all of the Stipulation and Order, the Agreement
to Indemnify, the Secured Rent Deferral Notes (as hereinafter defined) and
the Secured Rejection Note (as hereinafter defined); and
G. WHEREAS, pursuant to the plan of reorganization for Old DZI and
its affiliated debtors confirmed by the Bankruptcy Court by order entered
July 18, 1997 (the "Plan"), and as required by the terms of the Stipulation
and Order, Mortgagor, as the reorganized successor of the Debtors, is
obligated to issue to Mortgagee Secured Rent Deferral Notes in the aggregate
original principal amount of $266,466.24, which amount is subject to increase
each month in accordance with the terms thereof (the "Secured Rent Deferral
Notes") and Secured Rejection Note in the aggregate original principal amount
of $4,416,237.90 (the "Secured Rejection Note", and, together with the
Secured Rent Deferral Notes, the "Notes"); and
H. WHEREAS, pursuant to the Plan, all of the Debtors and their
reorganized successors have merged into Mortgagor, and simultaneously with
such merger, all property of LBI and the other Debtors, including the
Mortgaged Property (as hereinafter defined) has been revested in Mortgagor,
as the successor entity of the Debtors; and
I. WHEREAS, in accordance with the foregoing, Mortgagor is the fee
simple owner of the real estate described in Exhibit A attached hereto (the
"Land");
NOW THEREFORE, with reference to the foregoing recitals and for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,
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Mortgagor and Mortgagee hereby agree that the Original Mortgage is hereby
amended and restated in its entirety as follows:
For the purpose of securing the payment and performance of all of
the obligations (the "Obligations") of Mortgagor to Mortgagee, including
without limitation, any and all obligations of Mortgagor, as successor in
interest to Old DZI, DZII, LBI and their affiliated debtors, under this
Mortgage, the Agreement to Indemnify (including, without limitation, any
contingent obligations thereunder), the Stipulation and Order (including,
without limitation, the obligations described in Section 7 thereof which is
referred to in paragraph C of the recitals above), the Plan and the Notes
(including any and all subsequent advances made pursuant to the terms of the
Notes), and all other documents evidencing or securing any such obligations
(collectively, the "Relevant Documents"), Mortgagor by these presents does
hereby mortgage, give, grant, bargain, sell, alienate, enfeoff, convey,
confirm, warrant, pledge, assign and hypothecate unto Mortgagee, the Land and
the buildings, structures and improvements of every nature whatsoever now or
hereafter located thereon to the extent owned by Mortgagor (including, but
not limited to, all gas and electric fixtures, radiators, heaters, docks and
docking facilities, engines and machinery, boilers, elevators and motors,
plumbing, heating and air conditioning fixtures, carpeting and other floor
coverings, water heaters, awnings and storm sashes which are or shall be
attached to the Land or said buildings, structures or improvements) (the
"Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor
now owned, or hereafter acquired, in and to the following property, rights,
interest and estates relating to the Land and the Improvements, together with
Mortgagor's interest in the following property, rights, interests and estates
hereinafter described (the Land, Improvements, and the following property,
rights, interests and estates being hereinafter collectively referred to 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, construction and
equipment warranties, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments and appurtenances of any nature
whatsoever, in any way belonging, relating to or pertaining to the Land 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 Land, to the center line thereof and
all the estates, rights, titles, interests, dower and rights of dower,
curtesy and rights of curtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of Mortgagor of, in and to the Land
and the Improvements and every part and parcel thereof, with the
appurtenances thereto, and in and to any streets, ways, alleys, passages,
strips or gores of land adjoining the Land or any part thereof;
(b) all fixtures, attachments and other articles attached to the
Land or the Improvements constituting realty or real property now or
hereafter owned by Mortgagor or in which Mortgagor has or shall acquire an
interest, now or hereafter located on, attached to or
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contained in or used or usable in connection with the Mortgaged Property, and
including, without limitation, all building or construction materials
intended for construction, reconstruction, alteration or repair of or
installation on or in the Mortgaged Property, of every kind and nature
whatsoever now owned or hereafter acquired by Mortgagor, and all proceeds
thereof, as well as all additions to, appurtenances, substitutions for,
replacements of or accessions to any of the items recited as aforesaid and
all attachments, components, parts (including spare parts) and accessories,
whether installed thereon or affixed thereto, now or hereafter owned by
Mortgagor and used or intended to be used in connection with, or with the
operation of, the Mortgaged Property, to the extent constituting real
property, but not including play equipment or other similar-type
entertainment equipment relating to the operation of the "Discovery Zone"
facility on the Mortgaged Property unless removal of such equipment would
cause structural damage to the Land or the Improvements (collectively, the
"Fixtures");
(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 (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) to the extent assignable (and to the extent relating to the
general occupancy and use of the Mortgaged Property as opposed to the
operation of the "Discovery Zone" entertainment facility on the Mortgaged
Property), leases, subleases (including sub-subleases), lettings, licenses,
concessions, occupancy agreements and other agreements which grant a
possessory interest in, or the right to use or occupy, all or any part of the
Mortgaged Property now or hereafter entered into, and all amendments,
extensions, renewals and guarantees thereof, and all security therefor
(collectively, the "Leases") and all rents, issues, profits, revenues
(including all oil and gas or other mineral royalties and bonuses) and
deposits (including, without limitation, security deposits) under the Leases
(including, without limitation, from the rental of any office space, retail
space or other space, halls, stores, and offices, and security deposits
therefor, exhibit or sales space of every kind, license, lease, sublease,
fees and rentals, letters of credit or cash instruments securing or
evidencing obligations under Leases, service charges, vending machine sales
and proceeds, if any, from business interruption or other loss of income
insurance) (collectively, the "Rents") and 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 Obligations;
(e) subject to the rights of Mortgagor hereunder, all proceeds of
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);
(f) all refundable, returnable or reimbursable fees deposits or
other funds or evidences of credit or indebtedness deposited by or on behalf
of Mortgagor with any
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governmental authorities, boards, corporations, providers of utility
services, public or private, including specifically, but without limitation,
all refundable, returnable or reimbursable tap fees, utility deposits and
development costs in connection with the Mortgaged Property, and all of the
records and books of account now or hereafter maintained by or on behalf of
Mortgagor in connection with the operation of the Mortgaged Property
(collectively, "Security Accounts");
(g) all proceeds (as defined in the Uniform Commercial Code) of
the Mortgaged Property which, in any event, shall include, without
limitation, (i) cash, instruments and other property received, receivable or
otherwise distributed in exchange for any or all of the Mortgaged Property,
(ii) the collection or other disposition of, or realization upon, any item or
portion of the Mortgaged Property (including, without limitation, all claims
of Mortgagor against third parties for loss of, damage to, destruction of, or
for proceeds payable under policies of insurance in respect of, the Mortgaged
Property now existing or hereafter arising), (iii) any and all proceeds of
any insurance, indemnity, warranty or guaranty payable to Mortgagor from time
to time with respect to damage or loss of or to any of the Mortgaged
Property, (iv) any and all payments (in any form whatsoever) made or due and
payable to Mortgagor from time to time in connection with the requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Mortgaged Property by any Governmental Authority (or any person acting under
color of Governmental Authority), and (v) any and all real estate tax refunds
payable to Mortgagor with respect to the Mortgaged Property, and refunds or
reimbursements payable with respect to bonds, escrow accounts, or other sums
payable in connection with the use, development or ownership of the Mortgaged
Property, but excluding any proceeds obtained, earned or arising directly
from the operation of the "Discovery Zone" entertainment facility operated by
Mortgagor on the Mortgaged Property as opposed to the general occupancy and
use of the Mortgaged Property (collectively, the "Proceeds");
(h) to the extent permitted under applicable law, all licenses,
permits (other than proprietary permits of Mortgagor relating to the ordinary
operation of a "Discovery Zone" entertainment facility as opposed to the
general use and occupancy of the Mortgaged Property), variances and
certificates used in connection with the ownership, operation, use or
occupancy of the Mortgaged Property (including, without limitation, business
licenses, state health department licenses, food service licenses, liquor
licenses, licenses to conduct business and all such other permits, licenses
and rights, obtained from any Governmental Authority or private Person
concerning ownership, operation, use or occupancy of the Mortgaged Property)
(collectively, "Permits");
(i) all plans, specifications, shop drawings and other technical
descriptions prepared for construction, repair or alteration of the
Improvements (including diskettes containing any such data), and all
amendments and modifications thereof; and
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(j) any escrows and escrow accounts established hereunder to
secure the Obligations of Mortgagor, including, without limitation, the
Proceeds Escrow Account described in Section 6(b) hereof; and
(k) any and all replacements and renewals of or additions and
substitutions to any of the foregoing and all proceeds of any of the
foregoing.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the use and benefit of Mortgagee, and its successor and
assigns, forever, and Mortgagor does hereby bind itself, its successors and
assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged Property
unto Mortgagee and its successors and assigns;
AND, TO PROTECT THE SECURITY OF THIS MORTGAGE, Mortgagor represents
and warrants to and covenants and agrees with Mortgagee as follows:
1. Defined Terms. The following terms, when used herein, shall
have the meanings set forth below:
"Environmental Laws" means any and all present and future federal,
state or local laws, statutes, ordinances or regulations, any judicial or
administrative orders, decrees or judgments thereunder, and any permits,
approvals, licenses, registrations, filings and authorizations, in each case
as now or hereafter in effect, relating to the protection of the environment,
the impact of Hazardous Substances or the generation, disposal or remediation
thereof on human health or safety, or the Release or threatened Release of
Hazardous Substances or otherwise relating to the Use of Hazardous
Substances. For purposes of this definition, (A) "Hazardous Substances" means
collectively, (i) any petroleum or petroleum products or waste oils,
explosives, radioactive materials, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls ("PCBs"), and lead-based paint, (ii)
any chemicals or other materials or substances which are now or hereafter
become defined as or included in the definitions of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any
Environmental Law and (iii) any other chemical or any other material or
substance, exposure to which is now or hereafter prohibited, limited or
regulated under any Environmental Law; (B) "Use" means, with respect to any
Hazardous Substance, the generation, manufacture, processing, distribution,
handling, use, treatment, recycling or storage of such Hazardous Substance or
transportation of such Hazardous Substance; and (C) "Release" means any
release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment (including, without limitation, the movement of Hazardous
Substances through ambient air, soil, surface water, ground water, wetlands,
land or subsurface strata).
"Governmental Authority" means any national or federal government,
any state, regional, local or other political subdivision thereof with
jurisdiction and any Person
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with jurisdiction exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (including without
limitation any court).
"Impositions" means all taxes (including, without limitation, all
real estate, ad valorem, sales (including those imposed on lease rentals),
use, single business, gross receipts, value added, intangible transaction
privilege, privilege or license or similar taxes), assessments (including,
without limitation, all assessments for public improvements or benefits,
whether or not commenced or completed within the term of this Mortgage),
ground rents, water, sewer or other rents and charges, excises, levies, fees
(including, without limitation, license, permit, inspection, authorization
and similar fees), and all 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 Mortgaged Property), in each
case whether general or special, ordinary or extraordinary, foreseen or
unforeseen, of every character in respect of the Mortgaged Property, which at
any time prior to, during or in respect of the term hereof may be assessed or
imposed on or in respect of or be a lien upon (i) Mortgagor (including,
without limitation, all income, franchise, single business or other taxes
imposed on Mortgagor for the privilege of doing business in the jurisdiction
in which the Mortgaged Property is located), (ii) the Mortgaged Property, or
any part thereof or any revenues therefrom or any estate, right, title or
interest therein, or (iii) any occupancy, operation, use or possession of, or
sales from, or activity conducted on, or in connection with the Mortgaged
Property by Mortgagor or the leasing or use of the Mortgaged Property or any
part thereof by Mortgagor.
"Legal Requirements" means (i) all governmental statutes, laws,
rules, orders, regulations, ordinances, judgments, decrees and injunctions of
Governmental Authorities (including, without limitation, Environmental Laws)
affecting either the Borrower or any Property or any part thereof or the
construction, ownership, use, alteration or operation thereof, or any part
thereof (whether now or hereafter enacted and in force), (ii) all permits,
licenses and authorizations and regulations relating thereto, and (iii) all
covenants, conditions and restrictions contained in any instruments at any
time in force (whether or not involving Governmental Authorities) affecting
the Mortgaged Property or any part thereof which, in the case of this clause
(iii), require repairs, modifications or alterations in or to the Mortgaged
Property or any part thereof, or in any material way limit or restrict the
existing use and enjoyment thereof.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, estate, trust, unincorporated
association, any federal, state, county or municipal government or any
bureau, department or agency thereof and any fiduciary acting in such
capacity on behalf of any of the foregoing.
"Uniform Commercial Code" means the Uniform Commercial Code, as
adopted, enacted and amended from time to time by the state or states where
any of the Mortgaged Property is located.
2. Payment of Obligations and Incorporation of Covenants,
Conditions and Agreements. Mortgagor will pay the Obligations at the time
and in the manner provided in the
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Relevant Documents and in this Mortgage. All the representations,
warranties, covenants, conditions and agreements of Mortgagor contained in
the Relevant Documents are hereby made a part of this Mortgage to the same
extent and with the same force as if fully set forth herein. If there shall
be any inconsistencies between the terms, covenants, conditions and
provisions set forth in this Mortgage and the terms, covenants, conditions
and provisions set forth in the Relevant Documents, then the terms,
covenants, conditions and provisions of the Relevant Documents shall prevail.
3. Warranty of Title/Organization. Mortgagor warrants that
Mortgagor has good, marketable and insurable fee simple title to Land and the
Improvements and has good title to the remainder of the Mortgaged Property
and has the full power, authority and right to execute, deliver and perform
its obligations under this Mortgage and to encumber, mortgage, give, grant,
bargain, sell, alienate, enfeoff, convey, confirm, warrant, pledge, assign
and hypothecate the Mortgaged Property and that Mortgagor possesses an
unencumbered fee estate in the Land and the Improvements and that it owns the
Mortgaged Property free and clear of all liens, encumbrances and charges
whatsoever except for (x) those exceptions to title which are existing on the
date hereof and approved by Mortgagee and (y) those exceptions of title that
are permitted under the other terms and conditions of this Mortgage
(collectively, the "Permitted Encumbrances") and that this Mortgage is and
will remain a valid and enforceable first lien on and security interest in
the Mortgaged Property, subject only to the Permitted Encumbrances.
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. Mortgagor is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. Mortgagor is
qualified to do business and in good standing in the State in which the
Mortgaged Property is located, and to the extent that Mortgagor is not so
qualified or in good standing in such State, Mortgagor shall promptly qualify
to do business and become in good standing in such State and shall promptly
present evidence of such qualification to do business and good standing to
Mortgagee, and shall in any event take such steps as are necessary to insure
the enforceability of the Notes and this Mortgage.
4. Taxes. Mortgagor hereby warrants, covenants and agrees to pay
before any penalty attaches all real property taxes, general and special, and
all other taxes and assessments of any kind or nature whatsoever, against the
Mortgaged Property when due and shall, upon written request, furnish to
Mortgagee duplicate receipts therefor, Mortgagor may, in good faith and with
reasonable diligence, contest the validity or amount of any such taxes or
assessments provided that such contest shall have the effect of preventing
the collection of the tax or assessment so contested and the sale or
forfeiture of said Mortgaged Property or any part thereof, or any interest
therein, to satisfy the same.
5. Indemnification. Mortgagor shall indemnify, defend and hold
harmless Mortgagee from and against all of the following (collectively, and
individually referred to as a "Loss"): claims, demands, causes of action,
judgments, costs, expenses, liabilities, losses and damages (including
consequential and punitive damages), reasonable attorneys' fees and
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expenses and court costs, disbursements and court costs, and all risk of
damage to property and injury to persons in or upon the Mortgaged Property,
arising from: (i) Mortgagor's use of the Property or from the conduct of its
business in or about the Mortgaged Property; (ii) Mortgagor's default or
breach of any term under this Mortgage; and (iii) Mortgagor's violation or
failure to comply with any Legal Requirements, including Environmental Laws;
provided that Mortgagor shall not be liable for Loss arising from Mortgagee's
negligence or willful misconduct or from Mortgagee's breach of any of its
obligations hereunder.
6. Transfer or Encumbrance of the Mortgaged Property. (a) Except
as may otherwise be permitted hereunder or pursuant to the Relevant
Documents, Mortgagor shall not sell, convey, alienate, mortgage, encumber,
pledge or otherwise transfer the Mortgaged Property or any part thereof or
any of its interest therein. Mortgagee shall not be required to demonstrate
any actual impairment of its security or any increased risk of default
hereunder in order to declare the Obligations immediately due and payable
upon Mortgagor's conveyance, alienation, mortgage, encumbrance, pledge or
transfer of the Mortgaged Property in violation of this Mortgage or any other
Relevant Document. This provision shall apply to every sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged
Property that is not permitted pursuant to the Relevant Documents, 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.
(b) Notwithstanding Section 6(a), Mortgagor shall have the right to
sell the Mortgaged Property at any time to a third party bona fide purchaser
after consultation with Mortgagee and upon the prior written consent of
Mortgagee to such sale and the sales price (such consent not to be
unreasonably withheld), provided that the net proceeds of such sale of the
Mortgaged Property (after payment of transfer taxes and reasonable brokerage
commissions, if any, and other reasonable closing costs) shall be applied
towards repayment of the Obligations, including, without limitation,
repayment of the Secured Rejection Note (including prepayment of any amounts
not yet due and payable) and payment of the Principal Amounts (as defined in
the Rent Deferral Notes) then outstanding under the Rent Deferral Notes, in
the order and manner set forth in the Notes. After the Secured Rejection
Note and all Principal Amounts outstanding under the Notes have been repaid
in full, any remaining net proceeds (including proceeds from any sale or
other disposition of the Mortgaged Property pursuant to Section 24 hereof)
not applied towards repayment of the Obligations shall be deposited into an
escrow account designated by Mortgagee for Mortgagor's account and as
security for the performance by Mortgagor of its Obligations to Mortgagee
under the Relevant Documents (the "Proceeds Escrow Account") which escrow
account shall be administered by Mortgagee, or, at Mortgagee's discretion and
in accordance with Mortgagee's instructions, may be administered by an escrow
agent (an "Escrow Agent") selected by Mortgagee (whose reasonable fees shall
be paid by Mortgagor). Mortgagor may also from time to time deposit
additional funds into the Proceeds Escrow Account as further security for the
Obligations. At Mortgagee's request, Mortgagor agrees to enter into a
separate escrow agreement to further evidence the provisions of this Section
6(b), and in the event that Mortgagee chooses an Escrow Agent to administer
the Proceeds Escrow Account, Mortgagor agrees to execute an escrow agreement
in form and substance reasonably satisfactory to Mortgagee (including
provisions consistent with the
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provisions of this Section 6(b)) to evidence the duties and responsibilities
of such Escrow Agent. Mortgagee or, if applicable, the Escrow Agent at the
direction of Mortgagee, shall invest the funds in the Proceeds Escrow Account
in obligations of the U.S. Government or its agencies, interest in time
accounts or certificates of deposits, or other interest bearing account of
any bank or bank and trust company or in money market funds available to
Mortgagee. Mortgagor agrees, and shall agree under any escrow agreement
entered into pursuant to this Section 6(b), that the funds on deposit under
the escrow arrangement described herein shall not constitute property of the
estate (within the meaning of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy
Code) and that Mortgagor shall only have such rights to such funds as are
provided herein and in any escrow agreement entered into pursuant to this
Section. Funds in the Proceeds Escrow Account shall be disbursed (together
with accrued interest) from time to time to Mortgagee, at Mortgagee's
direction (upon seven (7) days prior notice to Mortgagor), to pay any
Obligations that may arise from time to time under the Agreement to
Indemnify, the Notes, the Stipulation and Order or the other Relevant
Documents. Notwithstanding the foregoing, after December 31, 2005, Mortgagor
shall be entitled to retain any net proceeds in excess of the Minimum Amount
set forth below from the sale of the Mortgaged Property, including amounts
previously deposited and remaining in the Proceeds Escrow Account (including
accrued interest thereon) which have not been applied towards payment of the
Obligations, provided that (i) no Obligations are then due and owing by
Mortgagor pursuant to the Agreement to Indemnify, the Stipulation and Order,
the Notes or otherwise, (ii) no default or Event of Default has occurred and
is continuing under any of the Relevant Documents; and (iii) the amount
remaining in the Proceeds Escrow Account is no less than the Minimum Amount
(as hereinafter defined). Except as otherwise set forth in the following
sentence, the "Minimum Amount" shall mean the product of (A) 1.5 times (B)
the sum of the gross rent (including additional rent and percentage rent
charges, if any), common area maintenance charges, taxes, insurance and other
charges computed on a gross basis (collectively, the "Base Charges") which
are due or shall become due under any Assumed Property Subleases still in
existence as of December 31, 2005 (the "Surviving Assumed Property
Subleases") from December 31, 2005 until the expiration of the terms of such
Assumed Property Subleases. Upon the expiration after December 31, 2005 of
any Surviving Assumed Property Sublease, Mortgagee shall re-calculate the
Minimum Amount based upon the product of 1.5 times the Base Charges of the
remaining Surviving Assumed Property Subleases as of the end of the term of
such Surviving Assumed Property Sublease (such Base Charges to be calculated
as the sum of the Base Charges from such date through the end of the
expiration dates of the remaining Surviving Assumed Property Subleases), and
provided that (i) no Obligations are then due and owing by Mortgagor pursuant
to the Agreement to Indemnify, the Notes, the Stipulation and Order or
otherwise and that (ii) no default or Event of Default has occurred and is
continuing under any of the Relevant Documents, Mortgagee shall, on the first
anniversary of the expiration of such expired Surviving Assumed Property
Sublease, release to Mortgagor, or cause the Escrow Agent to release to
Mortgagor, the excess of all funds in the Proceeds Escrow Account over the
re-calculated Minimum Amount. Any calculation of Base Charges under this
Section 6(b) shall be made by Mortgagee and, absent manifest error, shall be
conclusive and binding upon Mortgagor. Provided that (i) an amount equal to
at least the Minimum Amount is deposited or on deposit in the Proceeds Escrow
Account to secure the
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payment of the Obligations, (ii) no default or Event of Default has occurred
and is continuing under any of the Relevant Documents, (iii) the Notes have
been repaid in full and (iv) no Obligations are then due and owing by
Mortgagor pursuant to the Agreement to Indemnify, the Stipulation and Order
or otherwise, Mortgagor shall be entitled to receive a release of this
Mortgage from Mortgagee at any time after December 31, 2005. Provided that
no default or Event of Default has occurred or is continuing under any of the
Relevant Documents and that no amounts are then owing by Mortgagor or
outstanding pursuant to or under any of the Relevant Documents (and that an
amount equal to the Minimum Amount is at all times on deposit in the Proceeds
Escrow Account), interest earned on the amounts deposited in the Proceeds
Escrow Account after December 31, 2005 shall be distributed to Mortgagor on a
quarterly basis. All remaining amounts in the Proceeds Escrow Account which
have not been applied towards payment of the Obligations shall be released to
Mortgagor on the later of (A) December 31, 2014 provided, however, that no
Obligations are then due and owing by Mortgagor pursuant to the Agreement to
Indemnify, the Stipulation and Order or otherwise, and (B) the end of the
term of this Mortgage as set forth in Section 13(c) hereof. Mortgagor shall
pay any income taxes attributable to the interest or other income earned on
the Proceeds Escrow Account. Notwithstanding any release of this Mortgage
pursuant to this Section 6(b) or otherwise, the terms and provisions of this
Section 6(b) shall survive the release of this Mortgage.
7. Amendment to Legal Description. If it becomes evident that the
legal description attached to any Relevant Document is inaccurate or does not
fully describe all of the real property which is reasonably connected to the
Land, Mortgagor hereby agrees to an amendment of such legal description and
the legal description contained on the corresponding title policy so that
such error is corrected and to execute and cause to be recorded, if
applicable, such document as may be appropriate for such purpose.
8. Assignment of Leases and Rents. Mortgagor does hereby
absolutely and unconditionally assign to Mortgagee, Mortgagor's right, title
and interest in all current and future Leases and Rents, it being intended by
Mortgagor that this assignment constitutes a present, absolute assignment and
not an assignment for additional security only. Such assignment to Mortgagee
shall not be construed to bind Mortgagee to the performance of any of the
covenants, conditions or provisions contained in any such Lease or otherwise
impose any obligation upon Mortgagee. Mortgagee shall have no responsibility
on account of this assignment for the control, care, maintenance, management
or repair of the Mortgaged Property, for any dangerous or defective condition
of the Mortgaged Property, or for any negligence in the management, upkeep,
repair or control of the Mortgaged Property. Mortgagor agrees to execute and
deliver to Mortgagee such additional instruments, in form and substance
satisfactory to Mortgagee, as may hereafter be requested by Mortgagee to
further evidence and confirm such assignment. Nevertheless, subject to the
terms of this paragraph, Mortgagee grants to Mortgagor a revocable license to
collect all of the Rents and retain, use and enjoy the same and otherwise
exercise all rights of Mortgagor under any Lease, in each case, subject to
the terms hereof and of the Relevant Documents. Upon an Event of Default, the
license granted to Mortgagor herein shall immediately and automatically be
12
revoked, and Mortgagee shall immediately be entitled to possession of all
Rents, whether or not Mortgagee enters upon or takes control of the Mortgaged
Property, provided that if such Event of Default ceases to exist, the license
shall automatically be reinstated. In addition, during the continuation of
an Event of Default, Mortgagee may, either in person or by agent, without
bringing any action or proceeding, or by a receiver appointed by a court,
without the necessity of taking possession of the Mortgaged Property in its
own name, and in addition to and without limiting any of Mortgagee's rights
and remedies hereunder, under the Notes and any other Relevant Documents and
as otherwise available at law or in equity, (a) notify any lessee or other
person that the Leases have been assigned to Mortgagee and that all Rents are
to be paid directly to Mortgagee, whether or not Mortgagee has commenced or
completed foreclosure or taken possession of the Mortgaged Property; (b)
settle, compromise, release, extend the time of payment of, and make
allowances, adjustments and discounts of any Rents or other obligations in,
to and under the Leases; (c) demand, ▇▇▇ for or otherwise collect, receive,
and enforce payment of Rents, including those past-due and unpaid and other
rights under the Leases, prosecute any action or proceeding, and defend
against any claim with respect to the Rents and Leases; (d) enter upon, take
possession of and operate the Mortgaged Property; (e) lease all or any part
of the Mortgaged Property; and/or (f) perform any and all obligations of
Mortgagor under the Leases and exercise any and all rights of Mortgagor
therein contained to the full extent of Mortgagor's rights and obligations
thereunder, with or without the bringing of any action or the appointment of
a receiver and without need for any other authorization or other action by
Mortgagee or Mortgagor. At Mortgagee's request, Mortgagor shall deliver a
copy of this assignment to each tenant under a Lease and to each manager and
managing agent or operator of the Mortgaged Property. Mortgagor irrevocably
directs any tenant, manager, managing agent, or operator of the Property,
without any requirement for notice to or consent by Mortgagor, to comply with
all demands of Mortgagee under this Section 8 and to turn over to Mortgagee
on demand all Rents which it receives. Mortgagor hereby acknowledges and
agrees that payment of any Rents by a person to Mortgagee as hereinabove
provided shall constitute payment by such person, as fully and with the same
effect as if such Rents had been paid to Mortgagor. Mortgagee is hereby
granted and assigned by Mortgagor the right, at its option, upon revocation
of the license granted herein, to enter upon the Mortgaged Property in person
or by agent, without bringing any action or proceeding, or by court-appointed
receiver to collect the Rents. Any Rents collected after the revocation of
the license shall be applied towards the payment of the Obligations. Neither
the enforcement of any of the remedies under this Section 8 nor any other
remedies or security interests afforded to Mortgagee under the Relevant
Documents, at law or in equity shall cause Mortgagee to be deemed or
construed to be a Mortgagee in possession of the Mortgaged Property, to
obligate Mortgagee to lease the Mortgaged Property or attempt to do so, or to
take any action, incur any expense, or perform or discharge any obligation,
duty or liability whatsoever under any of the Leases or otherwise. Mortgagor
shall, and hereby agrees to indemnify Mortgagee for, and to hold Mortgagee
harmless from and against, any and all claims, liability, expenses, losses or
damages which may or might be asserted against or incurred by Mortgagee
solely by reason of Mortgagee's status as an assignee pursuant to the
assignment of Rents and Leases contained herein, but excluding any claim (a)
to the extent caused by Mortgagee's gross negligence or willful misconduct,
or (b) to the extent arising
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solely from Mortgagee's actions after Mortgagee has taken possession of the
Mortgaged Property. Should Mortgagee incur any such claim, liability,
expense, loss or damage, the amount thereof, including all actual expenses
and reasonable fees of attorneys, shall constitute Obligations secured
hereby, and Mortgagor shall reimburse Mortgagee therefor immediately upon
demand. Mortgagor agrees that all Leases shall be subject to the prior
written approval of Mortgagee, such approval not to be unreasonably withheld.
9. Maintenance of Mortgaged Property. Mortgagor shall cause the
Mortgaged Property to be maintained in a good and safe condition and repair
(subject to ordinary wear and tear), and shall otherwise operate and maintain
the Mortgaged Property in a manner consistent with the manner in which it
operates and maintains the other properties on which it operates similar
businesses ("Similar Properties"). Except as otherwise permitted by the
Relevant Documents, the Improvements, the Fixtures and the equipment located
on the Land or the Improvements shall not be removed, demolished or
materially altered (except for normal replacement of equipment) without the
consent of Mortgagee which shall not unreasonably be withheld or delayed.
Mortgagor shall comply with all laws, orders and ordinances affecting the
Mortgaged Property, or the use thereof. Except to the extent that Mortgagee
fails to turn over insurance proceeds, if any, received by Mortgagee pursuant
to Sections 10 and 11 with respect to the Mortgaged Property to Mortgagor,
Mortgagor shall promptly repair, replace or rebuild any part of the Mortgaged
Property that, following the date hereof, becomes damaged, worn or
dilapidated and Mortgagor shall complete and pay for any structure at any
time in the process of construction or repair on the Land. Notwithstanding
anything to the contrary contained herein, Mortgagor hereby confirms its
obligation to comply with all relevant Legal Requirements, including
Environmental Laws, with respect to the Mortgaged Property. Mortgagor shall
not initiate, join in, acquiesce in, or consent to any change in any private
restrictive covenant, zoning law or other public or private restriction,
limiting or defining the uses which may be made of the Mortgaged Property or
any part thereof, unless Mortgagor shall have received Mortgagee's prior
written consent, such consent not to be unreasonably withheld or delayed. 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 such nonconforming use to be discontinued or abandoned without the
express written consent of Mortgagee, such consent not to be unreasonably
withheld or delayed. Mortgagor shall not (i) change the use of the Land in
any material respect or (ii) permit or suffer to occur any waste on or to the
Mortgaged Property or to any portion thereof.
10. Insurance.
(a) Mortgagor shall maintain casualty, liability and other policies
of insurance relating to the Mortgaged Property in form and substance, and
with insurers and coverages, reasonably satisfactory to Mortgagee and
consistent with insurance that it maintains on Similar Properties. Mortgagor
shall keep the Mortgaged Property insured against loss by flood if the
Mortgaged Property is located in an area identified by the Secretary of
Housing and Urban Development as an area having a special flood hazards and
in which flood insurance has been made available under the National Flood
Insurance Act of 1968 (or any
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successor act thereto). All policies of insurance to be furnished hereunder
(i) shall have standard non-contributory Mortgagee clauses attached to all
policies in favor of Mortgagee, without contribution, under a standard New
York (or local equivalent) Mortgagee clause naming Mortgagee as the party to
which all payments made under such insurance policies in excess of $150,000
should be paid, (ii) shall contain an endorsement providing that neither
Mortgagor nor Mortgagee nor any other party shall be a co-insurer under said
policies and shall contain a provision requiring that the coverage evidenced
thereby shall not be terminated or materially modified without ten (10) days
prior written notice to Mortgagee, (iii) shall provide that no act or thing
done by Mortgagor shall invalidate the policy as against Mortgagee, and (iv)
with respect to property insurance policies, shall contain a waiver of
subrogation against Mortgagee. Mortgagor shall deliver certificates
evidencing additional and renewal policies, together with evidence of payment
of premiums thereon, to Mortgagee, and in the case of all insurance about to
expire, shall deliver renewal policies or certificates evidencing such
policies not less than ten (10) days prior to their respective dates of
expiration.
(b) Mortgagor shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
hereunder unless Mortgagee is included thereon under a standard,
non-contributory Mortgagee clause acceptable to Mortgagee. Mortgagor shall
promptly notify Mortgagee whenever any such separate insurance is taken out
and shall promptly deliver to Mortgagee the certificates evidencing the
policy or policies of such insurance.
(c) The insurance required by this Mortgage, at the option of
Mortgagor, may be effected by blanket and/or umbrella policies covering the
Mortgaged Property and other properties, provided, however, that in each
case, such insurance policies otherwise comply with the provisions of this
Mortgage and allocate to the Mortgaged Property, from time to time, the
coverage specified in this Mortgage without possibility of reduction or
co-insurance by reason of, or damage to, any other property named therein.
If the insurance required by this Mortgage shall be effected by any such
blanket or umbrella policies, Mortgagor shall furnish to Mortgagee
certificates with respect to, with schedules attached thereto showing the
amount of the insurance provided under such policies which is applicable to
the Mortgaged Property.
(d) If Mortgagor fails to maintain insurance in compliance with
this Section, Mortgagee may obtain such insurance and pay the premium
therefor and Mortgagor shall, on demand, reimburse Mortgagee for all expenses
incurred in connection therewith. Mortgagor shall deliver original
certificates to Mortgagee of all insurance policies maintained pursuant to
this Section 10. Each property insurance policy shall name Mortgagee as
Mortgagee, and loss payee with respect to all casualty coverage and each
liability policy shall name Mortgagee as an additional insured thereunder.
11. Casualty. (a) Mortgagor shall give Mortgagee prompt notice of
any loss or damage to the Mortgaged Property.
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(b) In case of loss or damage to the Mortgaged Property covered by
any of the insurance policies described in Section 10 above, Mortgagee (or,
after entry of decree of foreclosure, the purchaser at the foreclosure sale
or decree creditor, as the case may be) is hereby authorized at its option
either (i) to settle and adjust any claim under such insurance policies
without the consent of Mortgagor or (ii) to allow Mortgagor to settle and
adjust such claim (either jointly with Mortgagee or by Mortgagor alone, at
Mortgagee's discretion); provided that in either case Mortgagee shall, and is
hereby authorized to, collect and receipt for any such insurance proceeds.
Notwithstanding anything in the preceding sentence to the contrary, Mortgagee
agrees that it will allow Mortgagor to settle and adjust any claims under the
insurance policies which are in an amount less than $150,000, per incident of
loss, up to an aggregate amount of no greater than $300,000. The expenses
incurred by Mortgagee in the adjustment and collection of insurance proceeds
shall be included in the Obligations, and shall be reimbursed to Mortgagee
upon demand or may be deducted by Mortgagee from said insurance proceeds
prior to another application thereof. Interest on such amount shall accrue
at the Default Rate, beginning ten (10) days after Mortgagor receives notice
of a request for payment of such amount from Mortgagee, until such amount,
plus interest, is paid in full.
(c) Mortgagee shall permit Mortgagor to apply the proceeds of
insurance policies received in connection with any casualty to pay for the
cost of restoring, repairing, replacing or rebuilding the loss or damage to
the Mortgaged Property resulting from the casualty ("Restoration") if: (i)
there is no Event of Default hereunder at the time of such application; (ii)
restoration can, in the reasonable judgment of Mortgagee, be completed prior
to the maturity of the Obligations; and (iii) restoration can, in the
reasonable judgment of Mortgagee, be effected within two (2) years after the
date of such casualty and in such a manner so that the Mortgaged Property
will be of at least equal or greater value to the value than the Mortgaged
Property prior to such casualty. Otherwise, Mortgagee may elect in its sole
discretion to apply such proceeds either (x) towards payment of the
Obligations, notwithstanding the fact that the Obligations, or a portion
thereof, may not then be due and payable, or (y) to pay for the cost of
Restoration. In all events, disbursement of insurance proceeds by Mortgagee
(or at Mortgagee's election by a disbursing or escrow agent who shall be
selected by Mortgagee and whose fees shall be paid by Mortgagor), to pay the
cost of restoration shall require (i) evidence reasonably satisfactory to
Mortgagee of the estimated costs of Restoration, (ii) funds (or assurances
reasonably satisfactory to Mortgagee that such funds are available)
sufficient in addition to the proceeds of insurance to complete and fully pay
for Restoration; and (iii) such architect's certificates, waivers of lien,
contractor's sworn statements, title insurance endorsements, plats of surveys
and such other evidences of cost, payment and performance as Mortgagee may
reasonably require and approve. Except to the extent Mortgagee fails to turn
over insurance proceeds, if any, received by Mortgagee hereunder with respect
to such casualty to Mortgagor, Mortgagor hereby covenants to restore, repair,
replace or rebuild the Improvements, to be of at least equal value, and of
substantially the same character as prior to such loss or damage, all to be
effected in accordance with plans, specifications and procedures to be first
submitted to and reasonably approved by Mortgagee, and Mortgagor shall pay
all costs of such restoring, repairing, replacing or rebuilding.
16
12. Eminent Domain. Mortgagor warrants, covenants and agrees that
should the Mortgaged Property, or any part thereof or interest therein, be
taken or damaged by reason of any public improvement or condemnation
proceeding, or in any other manner, or should Mortgagor receive any notice of
other information regarding such proceeding, Mortgagor shall give written
notice thereof within five (5) business days to Mortgagee. Without
Mortgagee's prior consent, Mortgagor (1) shall not agree to any compensation
or award, and (2) shall not take any action or fail to take any action which
would cause the compensation to be determined. Mortgagee shall be entitled
to: (1) all compensation, awards and other payments or relief therefor, (2)
to commence, appear in and prosecute in its own name any action or
proceedings, and (3) to make any compromise or settlement in connection with
such taking or damage. Mortgagor authorizes Mortgagee to collect and receive
such awards and compensation, to give proper receipts and acquittances
therefor and in Mortgagee's discretion to apply the same toward the payment
of the Obligations, notwithstanding the fact that the Obligations, or a
portion thereof, may not then be due and payable, or to the restoration of
the Mortgaged Property in accordance with the provisions set forth in the
second-to-last sentence of Section 11(c) above. Mortgagor further agrees to
make, execute, and deliver to Mortgagee, at any time upon request, free and
clear of any encumbrance of any kind whatsoever, any and all further
assignments and other instruments deemed necessary by Mortgagee for the
purpose of validly and sufficiently assigning all compensations and awards
made to Mortgagor for any taking, either permanent or temporary, under any
such proceeding.
13. Release of Mortgage. Mortgagee agrees to promptly and
unconditionally release this Mortgage (subject to the provisions set forth
in Section 6(b)) as follows:
(a) in the event of a bona fide sale (other than a "sale
leaseback" or other similar financing transaction) of the Mortgaged
Property to a third party that is not affiliated with Mortgagor, provided
that each of the following conditions is satisfied: (i) neither Mortgagor
nor any of its respective affiliates continue to use or occupy the Mortgaged
Property or any part thereof; (ii) Mortgagor shall consult with Mortgagee
prior to such sale and shall obtain Mortgagee's prior written consent with
respect to such sale and the sales price (such consent not to be unreasonably
withheld); and (iii) all of the proceeds of such sale are applied towards
repayment of the Obligations or otherwise applied in compliance with the
provisions of Section 6(b) hereof.
(b) in the event that Mortgagee is paid in full for all amounts
owing (or what shall or may become owing under the Relevant Documents) to
Mortgagee by Mortgagor and any of its former affiliated debtors, including
the indefeasible payment and satisfaction in full of the Obligations.
(c) on December 31, 2014 (or on such earlier date as permitted
under and pursuant to the provisions of Section 6(b) hereof); provided,
however, that if on such date, any amount secured by this Mortgage has not
been indefeasibly paid in full, then this Mortgage shall be deemed amended to
extend the term hereof until such obligations are so paid.
17
14. Changes in the Laws Regarding Taxation. If any law is enacted
or adopted or amended after the date of this Mortgage which imposes a tax,
either directly or indirectly, on the Obligations or Mortgagee's interest in
the Mortgaged Property, Mortgagor will pay such tax, with interest and
penalties thereon, if any, provided, however, that Mortgagor shall not be
obligated to pay any tax which is imposed on the net income of Mortgagee or
franchise taxes or doing business taxes imposed on Mortgagee. In the event
that the payment of such tax or interest and penalties by Mortgagor would be
unlawful or taxable to Mortgagee or unenforceable or provide the basis for a
defense of usury, then in any such event, Mortgagee shall have the option, by
written notice of not less than ninety (90) days, to declare the Obligations
immediately due and payable.
15. No Credits on Account of the Obligations. (i) Mortgagor will
not claim or demand or be entitled to any credit or credits on account of the
Obligations for any part of the Impositions assessed against the Mortgaged
Property, or any part thereof, and (ii) no deduction shall otherwise be made
or claimed from the assessed value of the Mortgaged Property, or any part
hereof, for real estate tax purposes by reason of this Mortgage or the
Obligations if the effect of such deduction would impose on Mortgagee a tax,
either directly or indirectly, for which it otherwise would not have been
liable.
16. Documentary Stamps. 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 Notes 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.
17. 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 Relevant Documents. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under
the Notes or under any of the other Relevant Documents, or contracted for,
charged, taken, reserved, or received with respect to the Obligations, or if
Mortgagee's exercise of the option to accelerate the maturity of the Notes,
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 Notes and all other Obligations (or, if the Notes and all other
Obligations have been or would thereby be paid in full, refunded to
Mortgagor), and the provisions of the Notes and the other Relevant 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 Obligations shall, to the extent permitted
by applicable law, be amortized, prorated, allocated, and spread throughout
the full
18
stated term of the Obligations until payment in full so that the rate or
amount of interest on account of the Obligations does not exceed the maximum
rate of interest permitted by law from time to time in effect and applicable
to the Obligations for so long as the Obligations are outstanding.
18. Performance of Other Agreements. Mortgagor shall observe and
perform in all respects the terms to be observed or performed by Mortgagor
under any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
19. Right to Perform the Obligations. Subject to the terms of the
Relevant Documents, if any default exists, Mortgagee shall have the right,
but not the obligation, to cure such default in the name and on behalf of
Mortgagor. All sums advanced and expenses incurred at any time by Mortgagee
under this Section 19, or otherwise under this Mortgage or any of the other
Relevant Documents or applicable law (including, without limitation, the
costs and expenses of Mortgagee and its agents incurred in connection with
the preservation, collection and enforcement of this Mortgage or of the liens
created hereby), shall bear interest from the date that such sum is advanced
or expense incurred, to and including the date of reimbursement, computed at
the Default Rate (as defined in the Notes), and all such sums, together with
interest thereon, shall constitute additions to the Obligations and shall be
secured by this Mortgage and Mortgagor covenants and agrees to pay them to
the order of the Mortgagee promptly upon demand.
20. Further Acts, etc. 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, reasonably require, for the better assuring, conveying,
assigning, transferring, and confirming unto Mortgagee the property and
rights hereby mortgaged, given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, warranted, pledged, assigned and hypothecated
(including, without limitation, the assignment of leases and rents contained
in Section 8 hereof) 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. Mortgagor, on demand, will execute and deliver and, Mortgagor
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. Notwithstanding anything to the contrary contained herein,
Mortgagor shall not be obligated to execute, deliver, file or record any
additional documents which increase Mortgagor's obligations under this
Mortgage or the Relevant Documents. Mortgagor grants to Mortgagee an
irrevocable power of attorney coupled with an interest for the purpose of
exercising the rights provided for in Section 19 and this Section 20.
19
21. Recording of Mortgage, etc. Mortgagor forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time,
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, the
costs and fees of local counsel for Mortgagee, including, without limitation,
costs and fees for local counsel review of the Mortgage and Subordination
Agreement and the preparation of opinion letters in connection therewith, and
all expenses incident to the execution and acknowledgment of this Mortgage
(but not including fees of Mortgagee's New York counsel in connection with
the preparation of this Mortgage), any deed of trust or 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 deed of
trust or mortgage supplemental hereto, any security instrument with respect
to the Mortgaged Property or any instrument of further assurance (other than
income or franchise taxes imposed on Mortgagee), except where prohibited by
law so to do. 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.
Mortgagor shall pay all title costs and premiums in connection with the ALTA
lender's title insurance policy issued by Chicago Title Insurance Company for
the benefit of Mortgagee in connection with this Mortgage (including payment
for the cost of any property surveys ("Surveys") prepared in connection
therewith), which title insurance policy shall be in form and substance
satisfactory to Mortgagee containing such endorsements as Mortgagee may
reasonably request, including, without limitation, the deletion of any
creditor's rights exception and (to the extent available) a variable rate
endorsement; survey endorsement; comprehensive endorsement; first loss
endorsement; last dollar endorsement; tie-in endorsement; future advances
endorsement; access coverage; tax parcel coverage; contiguity (if applicable)
coverage; and such other endorsements as Mortgagee shall reasonably require.
In the event that any Survey with respect to the Mortgaged Property reveals
any encumbrances, restrictions, building code or zoning violations or other
matters which in Mortgagee's reasonable judgment, materially impair
Mortgagee's first priority lien in the Mortgaged Property, Mortgagor agrees
to cooperate with Mortgagee in performing any acts reasonably requested by
Mortgagee to cause such encumbrances, restrictions, violations or other
matters to be removed or remedied as appropriate.
22. Reporting Requirements. Mortgagor agrees to give prompt notice
to Mortgagee of the insolvency or bankruptcy filing of Mortgagor. In
addition, Mortgagor will give notice to Mortgagee in writing not later than
ten (10) days after: (i) the occurrence of any Event of Default with respect
to Mortgagor hereunder, or (ii) notice to Mortgagor of any action, litigation
or proceeding instituted to recover possession of the Mortgaged Property from
Mortgagor or for any other purpose affecting this Mortgage or of any other
action, litigation or proceeding instituted against Mortgagor or judgment
rendered against Mortgagor;
20
and such notice to Mortgagee shall include a true copy of any notice of
default, or if any action is then proceeding, copies of any pleadings and
papers received by Mortgagor.
23. Events of Default. The term "Event of Default" as used herein
shall mean the occurrence or happening, at any time and from time to time, of
one or more of the following events:
(a) a default or event of default under any of the Notes
(including, without limitation, any event of default described in Section 3
of any of the Notes), which remains uncured following the expiration of any
applicable cure periods;
(b) Mortgagor (i) shall fail to perform when due any payment
obligation under the terms of this Mortgage or the other Relevant Documents
within ten days after such amount becomes due, or (ii) shall be in violation
of any of the obligations or covenants contained herein or therein and such
default shall continued unremedied for a period of thirty (30) days, provided
that if such default is not readily susceptible of cure in such thirty (30)
day period, and provided that Mortgagor proceeds in a diligent manner to cure
such default, Mortgagor shall have such additional time to effect such cure
as shall be reasonably necessary to effect such cure;
(c) Failure by Mortgagor to maintain insurance and deliver evidence
thereof pursuant to Section 10; or
(d) a default under any other mortgage, deed of trust or other
security instrument covering the Mortgaged Property or a portion thereof
which remains uncured following the expiration of any applicable cure periods.
24. Remedies. (a) Upon the occurrence of any Event of Default,
Mortgagee may take such action permitted in law or at equity, without notice
or demand, as it deems advisable to protect and enforce its rights against
Mortgagor and in and to the Mortgaged Property, by Mortgagee itself or
otherwise, including, but not limited to, the following actions, each of
which may be pursued concurrently or otherwise, at such time and in such
order as Mortgagee may determine, in its sole discretion, without impairing
or otherwise affecting the other rights and remedies of Mortgagee:
(i) declare the entire principal amount of the indebtedness and
Obligations secured hereby with interest accrued thereon to be
immediately due and payable;
(ii) institute a proceeding or proceedings, judicial or nonjudicial,
by advertisement or otherwise, for the complete foreclosure of this
Mortgage in which case the Mortgaged Property or any interest therein
may be sold for cash or upon credit in one or more parcels or in
21
several interests or portions and in any order or manner in accordance
with the laws of the jurisdiction in which such Mortgaged Property is
located;
(iii) with or without entry, to the extent permitted, and pursuant
to the procedures provided by, applicable law, institute proceedings
for the foreclosure of this Mortgage for the Obligations then due and
payable subject to the continuing lien of this Mortgage, in accordance
with the laws of the jurisdiction in which such Mortgaged Property is
located, for the balance of the Obligations not then due;
(iv) sell for cash or upon credit the Mortgaged Property or any part
thereof and all estate, claim, demand, right, title and interest of
Mortgagor therein and rights of redemption thereof, pursuant to power
of sale or otherwise, at one or more sales, as an entirety or in
parcels, at such time and place, upon such terms and after such notice
thereof as may be required or permitted by the laws of the
jurisdiction in which such Mortgaged Property is located;
(v) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained
herein or in the other Relevant Documents;
(vi) recover judgment on the Notes either before, during or after any
proceedings for the enforcement of this Mortgage;
(vii) prior to, concurrently with, or subsequent to the institution
of foreclosure proceedings, apply for the appointment of a
trustee, receiver, liquidator or conservator of the Mortgaged
Property, as a matter of strict right, without notice and without
regard for the adequacy of the security for the Obligations or the
interest of the Mortgagor therein and without regard for the solvency
of the Mortgagor or of any person, firm or other entity liable for the
payment of the Obligations, and Mortgagor hereby consents to such
appointment;
(viii) prior to, concurrently with or subsequent to the institution
of foreclosure proceedings, enforce Mortgagee's interest in the Leases
and Rents and enter into or upon the Mortgaged Property and take
exclusive possession thereof, either personally or by its agents,
nominees or attorneys and dispossess Mortgagor and its agents and
servants therefrom, and thereupon Mortgagee may (whether or not a
receiver has been appointed) as attorney-in-fact or agent of
Mortgagor, or in its own name and under the powers herein granted, (A)
use, operate, manage, control, insure, maintain, repair, restore and
otherwise deal with all and every part of the Mortgaged Property and
conduct the business thereat; (B) complete any construction on the
Mortgaged Property in such manner and form as Mortgagee deems
advisable; (C) make alterations, additions, renewals, replacements and
improvements to or on the Mortgaged
22
Property; (D) exercise all rights and powers of Mortgagor with
respect to the Mortgaged Property, whether in the name of Mortgagor
or otherwise (including, without limitation, the right to make,
cancel, enforce or modify Leases, obtain and evict tenants, and
demand, ▇▇▇ for, collect and receive all earnings, revenues, rents,
issues, profits and other income of the Mortgaged Property and
every part thereof); and (E) apply the receipts from the Mortgaged
Property to the payment of the Obligations, after deducting
therefrom all reasonable expenses (including, without limitation,
reasonable attorneys' fees) incurred in connection with the aforesaid
operations and all amounts necessary to pay the taxes, assessments,
insurance and other charges in connection with the Mortgaged Property,
it being agreed that should Mortgagee incur any liability, loss or
damage in the defense of any claims or demands, the amount thereof,
including costs, expenses and reasonable attorneys' fees shall be
secured hereby, and Mortgagor shall reimburse Mortgagee therefor
immediately upon demand;
(ix) require Mortgagor to pay monthly in advance to Mortgagee, or any
receiver appointed to collect the Rents, the fair and reasonable
rental value for the use and occupation of any portion of the
Mortgaged Property occupied by Mortgagor and require Mortgagor to
vacate and surrender possession to Mortgagee of the Mortgaged Property
or to such receiver and, in default thereof, evict Mortgagor by
summary proceedings or otherwise; and
(x) pursue such other rights and remedies as may be available under
the Relevant Documents or otherwise at law or in equity or under the
Uniform Commercial Code including the right to establish a lock box
for all Rents and other receivables of Mortgagor relating to the
Mortgaged Property.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Mortgage shall continue as a lien on the remaining
portions of the Mortgaged Property.
The proceeds of any sale made under or by virtue of this Section 24,
together with any other sums which then may be held by Mortgagee under this
Mortgage, whether under the provisions of this Section or otherwise, shall be
applied by Mortgagee in the following order of priority: first, on account of
all reasonable costs and expenses incident to the foreclosure proceedings,
including all such items as are mentioned in this Section 24; second, all
other items which under the terms hereof constitute secured indebtedness,
which are any amounts due under this Mortgage, or under the other Relevant
Documents (including any amounts required to be escrowed pursuant to Section
6(b)); third, any surplus to Mortgagor, its successors or assigns, as their
rights may appear.
(b) Upon any sale made under or by virtue of this Section 24,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof
and in lieu of paying cash therefor may make settlement for the
23
purchase price by crediting upon the Obligations the net sales price after
deducting therefrom the expenses of the sale and costs of the action and any
other sums which Mortgagee is authorized to deduct under this Mortgage.
(c) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect in any manner or to any extent the lien of
this Mortgage upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Mortgagee hereunder, but such liens, rights,
powers and remedies of Mortgagee shall continue unimpaired as before.
(d) Mortgagee may adjourn, terminate or rescind any proceeding or
other action brought in connection with its exercise of the remedies provided
in this Section 24 at any time before the conclusion thereof, as determined
in Mortgagee's sole discretion and without prejudice to Mortgagee.
(e) Mortgagee may resort to any remedies and the security given by
this Mortgage or the other Relevant Documents in whole or in part, and in
such portions and in such order as determined by Mortgagee's sole discretion.
No such action shall in any way be considered a waiver of any rights,
benefits or remedies evidenced or provided by this Mortgage or the other
Relevant Documents. The failure of Mortgagee to exercise any right, remedy or
option provided in this Mortgage or the other Relevant Documents shall not be
deemed a waiver of such right, remedy or option or of any covenant or
obligation secured by this Mortgage or the other Relevant Documents. Subject
to the provisions of the Relevant Documents, no acceptance by Mortgagee of
any payment after the occurrence of any Event of Default and no payment by
Mortgagee of any obligation for which Mortgagor is liable hereunder shall be
deemed to waive or cure any Event of Default with respect to Mortgagor, or
Mortgagor's liability to pay such obligation. No sale of all or any portion
of the Mortgaged Property, no forbearance on the part of Mortgagee and no
extension of time for the payment of the whole or any portion of the
Obligations or any other indulgence given by Mortgagee to Mortgagor, shall
operate to release or in any manner affect the interest of Mortgagee in the
remaining Mortgaged Property or the liability of Mortgagor to pay the
Obligations. No waiver by Mortgagee shall be effective, unless it is in
writing and then only to the extent specifically stated.
(f) The interests and rights of Mortgagee under this Mortgage and
the other Relevant Documents, and the liens and security interests created
and evidenced by this Mortgage and the other Relevant Documents, shall not be
impaired by any indulgence, including (i) any renewal, extension or
modification which Mortgagee may grant with respect to any of the
Obligations, (ii) any surrender, compromise, release, renewal, extension,
exchange or substitution which Mortgagee may grant with respect to the
Mortgaged Property or any portion thereof; or (iii) any release or indulgence
granted to any maker, endorser, guarantor or surety of any of the
Obligations.
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(g) Upon the occurrence of any Event of Default under Section 23,
in any suit to foreclose the lien hereof or enforce any other remedy of
Mortgagee under this Mortgage, there shall be allowed and included as
additional indebtedness in the decree for sale or other judgment or decree
all reasonable expenditures and expenses which may be paid or incurred by or
on behalf of Mortgagee for attorneys' fees, appraiser's fees, outlays for
documentary and expert evidence, stenographers' charges, publication costs,
and costs (which may be estimated as to items to be expended after entry of
the decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, Torrens certificates, and similar
data and assurances with respect to title as Mortgagee may deem reasonably
necessary either to prosecute such suit or to evidence to bidders at any sale
which may be had pursuant to such decree the true condition of the title to
or the value of the Mortgaged Property. All such reasonable expenditures and
expenses which Mortgagee may incur as permitted by this Section for the
protection of the Mortgaged Property and the maintenance of the lien of this
Mortgage, including, but not limited to, the fees and out-of-pocket
disbursements of any attorney employed by Mortgagee in any litigation or
proceeding affecting this Mortgage, including, but not limited to, bankruptcy
proceedings or preparations for the commencement or defense of any proceeding
or threatened suit or proceeding, shall be immediately due and payable by
Mortgagor and shall be secured by this Mortgage.
25. Right of Access. Mortgagor shall permit agents,
representatives and employees of Mortgagee to (i) inspect the Mortgaged
Property or any part thereof, provided that such inspection does not
materially interfere with the tenants of the Mortgaged Property or violate
the terms of any Lease, (ii) to examine and make abstracts from any of
Mortgagor's books and records and (iii) to discuss the business, operations,
properties and financial and other condition of Mortgagor with officers of
Mortgagor and with its independent certified public accountants, at such
reasonable times as may be requested by Mortgagee upon reasonable advance
notice.
26. Security Agreement. This Mortgage is both a real property
mortgage 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 Obligations, 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 paragraph 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. All or part of the Mortgaged Property is or is to
become "fixtures" as defined in the Uniform Commercial Code, and this
Mortgage, upon being filed for record in the real estate records of the city
or county wherein such fixtures are situated, shall also constitute a
"fixture filing" for the purposes of the Uniform Commercial Code upon such of
the Mortgaged Property that is or
25
may 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. Mortgagor's chief executive
office and principal place of business is the Mortgagor's address set forth
in the first paragraph of this Mortgage, and the place where Mortgagor's
books and records in respect of where the Mortgaged Property is located are
kept is the address of Mortgagor set forth in the first paragraph of this
Mortgage. If an Event of Default shall occur which shall remain uncured,
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 limitation, to the extent permitted by
law, 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 therefor any and all reasonable
expenses (including, without limitation, reasonable 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 at least ten (10)
business days prior to such action or such notice as is otherwise required by
law or the Relevant Documents, 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
Obligations in such priority and proportions as Mortgagee shall determine in
its sole discretion. In the event of any change in name, identity or
structure of Mortgagor, 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
materially increase Mortgagor's obligations under this Mortgage or the other
Relevant 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 UCC financing statements (or related
documents) signed only by Mortgagee, as secured party, in connection with the
Collateral covered by this Mortgage, such appointment to terminate upon the
release of this Mortgage.
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 reasonable discretion, decides should be
brought to protect its interest under this Mortgage or in the Mortgaged
Property. Subject to the foregoing, Mortgagor shall appear in and contest
26
any action or proceeding purporting to affect the security hereof and shall
pay all reasonable costs and expenses including cost of evidence of title and
attorney's fees, in any such action or proceeding in which Mortgagee may
appear. 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
Obligations, and any such subrogation rights shall constitute additional
security for the payment of the Obligations.
28. Waiver of Setoff and Counterclaim. Except as may be permitted
under the Relevant Documents, all amounts due under this Mortgage, the Notes
and the other Relevant Documents shall be payable without setoff or
counterclaim whatsoever.
29. Liens. Mortgagor warrants, covenants and agrees to pay and
promptly discharge, at Mortgagor's cost and expense, all taxes, assessments
and governmental charges levied upon it, its income and assets as and when
such taxes, assessments and charges are due and payable (including, without
limitation, all Impositions), as well as all lawful claims for labor
materials and supplies or otherwise which could become a lien, and all liens,
encumbrances and charges upon the Mortgaged Property, or any part thereof or
interest therein; provided that the existence of any mechanic's, laborer's,
materialman's, supplier's or vendor's lien or right thereto shall not
constitute a violation of this Section if payment is not yet due under the
contract which is the foundation thereof. Notwithstanding the foregoing,
Mortgagor shall not be in default for failure to pay or discharge Impositions
or mechanic's or materialman's or similar lien asserted against the Mortgaged
Property if, and so long as, (a) Mortgagor shall have notified Mortgagee of
same within seven (7) 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) unless funds are otherwise reserved, Mortgagor shall
furnish to Mortgagee such security as Mortgagee may reasonably request to
insure payment of such Impositions and to secure and indemnify Mortgagee
against any cost, expense, loss or damage in connection with such contest or
postponement of payment; (d) Mortgagor shall timely upon final determination
thereof pay the amount of any such Impositions, claim, fine or penalty so
determined, together with all costs, interest and penalties which may be
payable in connection therewith; (e) the failure to pay the Impositions, or
mechanic's or materialman's or similar 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, Mortgagee may, but shall not be required to,
pay or cause to be discharged or bonded against) any such Impositions, or
claim notwithstanding such contest, if in the reasonable opinion of
Mortgagee, the Mortgaged Property or any part thereof or interest therein may
be in imminent danger of being sold, forfeited, foreclosed, terminated,
canceled or lost.
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 Obligations as the same become due and owing,
without regard to whether or not the balance
27
of the Obligations 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. Marshaling, Waiver of Redemption and Other Matters. Mortgagor
hereby waives, to the extent permitted by law, the benefit of all
appraisement, valuation, stay, extension, reinstatement, moratorium and
redemption laws now or hereafter in force and all rights of marshaling in the
event of any sale hereunder of the Mortgaged Property or any part thereof or
any interest therein. Further, Mortgagor hereby expressly waives 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 and on behalf of all persons to the extent
permitted by applicable law.
32. Notice. Any notice which either party hereto may desire or be
required to give to the other party shall be in writing and delivered by:
(x) a commercial courier or messenger service or (y) by U.S. registered or
certified mail with return receipt requested. Notice by commercial messenger
or courier service will be deemed to have been given on the day when
delivered before 4:00 p.m. on a business day in the city in which notice is
delivered, provided that payment for the cost of delivery is not requested of
the recipient. Notice by mail shall be given by registered or certified U.S.
Mail, return receipt requested. Delivery of notice by commercial messenger
or courier service or mail shall be assumed if acceptance of delivery is
refused. Notice may be given by fax but will only be treated as delivered
hereunder if: (x) sent between the hours of 9:00 a.m. and 5:00 p.m. (based
on local time at the destination); and (y) receipt is acknowledged by fax and
delivery will be deemed to have been given on the date the fax acknowledgment
is sent. Notices shall be delivered as follows or at such other place as
either party hereto may by notice in writing (given in accordance with this
Section 32) designate:
To Mortgagor: Discovery Zone, Inc.
One Corporate Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To Mortgagee: ▇▇▇▇▇▇▇▇'▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
28
33. Sole Discretion of Mortgagee. Wherever pursuant to this
Mortgage, Mortgagee exercises any right given to it to approve or disapprove,
or any arrangement or term is to be satisfactory to Mortgagee, the decision
of Mortgagee to 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.
34. 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 to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the other Relevant
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Obligations
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 this Mortgage or the other Relevant Documents. Mortgagee may resort
for the payment of the Obligations 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 Obligations, 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.
35. No Oral Change. This Mortgage and the other Relevant Documents
constitute the final expression of the entire agreement among the parties
pertaining to the subject matter hereof and thereof and supersede all prior
and contemporaneous agreements, understanding, representations or other
arrangements, whether express or implied, written or oral, of the parties in
connection herewith or therewith except to the extent expressly incorporated
or specifically referred to herein or therein. This Mortgage, and any
provisions hereof, may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part
of Mortgagor or Mortgagee, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
36. Successors and Assigns. 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 permitted successors and assigns forever.
29
37. Severability. If any term, covenant or condition of this
Mortgage or the Relevant Documents is held to be invalid, illegal or
unenforceable in any respect, this Mortgage and any such other Relevant
Document shall be construed without such provision.
38. Headings, etc. The headings and captions of various paragraphs
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.
39. Duplicate Originals. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be
deemed to be an original.
40. 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(s) of the Notes,"
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, without limitation, 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
and all such fees incurred in connection with any bankruptcy or insolvency
proceedings). 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.
41. 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 Land as against the collection of the
Obligations, or any part hereof.
42. Assignments. Consistent with and subject to the applicable
provisions of the Relevant Documents, Mortgagee shall have the right to
assign or transfer its rights under this Mortgage without limitation. Any
Mortgagee or transferee shall be entitled to all the benefits afforded
Mortgagee under this Mortgage.
43. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO 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 THE NOTES, THIS MORTGAGE, OR THE OTHER RELEVANT DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH.
30
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
SUCH PARTY, 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 PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MORTGAGOR.
44. Consent to Jurisdiction. MORTGAGOR AND MORTGAGEE HERETO
CONSENT FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTIES, GENERALLY,
UNCONDITIONALLY AND IRREVOCABLY, TO THE NONEXCLUSIVE JURISDICTION OF THE
FEDERAL AND STATE COURTS IN THE STATE OF NEW YORK WITH RESPECT TO ANY
PROCEEDING RELATING TO ANY MATTER, CLAIM OR DISPUTE ARISING UNDER THE
RELEVANT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. MORTGAGOR
FURTHER CONSENTS, GENERALLY, UNCONDITIONALLY AND IRREVOCABLY, TO THE
NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE IN
WHICH ANY OF THE COLLATERAL IS LOCATED IN RESPECT OF ANY PROCEEDING RELATING
TO ANY MATTER, CLAIM OR DISPUTE ARISING WITH RESPECT TO SUCH COLLATERAL.
MORTGAGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS, GENERALLY,
UNCONDITIONALLY AND IRREVOCABLY, AT THE ADDRESSES SET FORTH IN THE FIRST
PARAGRAPH HEREOF IN CONNECTION WITH ANY OF THE AFORESAID PROCEEDINGS IN
ACCORDANCE WITH THE RULES APPLICABLE TO SUCH PROCEEDINGS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, MORTGAGOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW HAVE OR HAVE IN THE FUTURE TO THE LAYING OF VENUE
IN RESPECT OF ANY OF THE AFORESAID PROCEEDINGS BROUGHT IN THE COURTS
REFERRED TO ABOVE AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF MORTGAGEE
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR TO COMMENCE PROCEEDINGS
OR OTHERWISE PROCEED AGAINST MORTGAGOR IN ANY JURISDICTION.
45. Governing Law. This Mortgage shall be governed by and
construed in accordance with the laws of the State of New York including,
without limitation, Section 51401 of the General Obligations Law, but
otherwise without regard to conflict of law principles; provided, however,
that with respect to the creation, attachment, perfection, priority and
procedures relating to the enforcement of the liens and security interests
created by or pursuant to this Mortgage and relating to real property, this
Mortgage shall be governed by and construed in accordance with the laws of
the state in which the Land is located.
46. Lien Absolute, Multi-site Real Estate and Multiple Collateral
Transaction. Mortgagor acknowledges that this Mortgage and a number of other
Relevant
31
Documents and those documents required by the Relevant Documents together
secure the Obligations. Mortgagor agrees that the lien of this Mortgage and
all obligations of the Mortgagor hereunder shall be absolute and
unconditional and shall not in any manner be affected or impaired by:
(a) any lack of validity or enforceability of the Notes or any
other Relevant Document, any agreement with respect to any of the Obligations
or any other agreement or instrument relating to any of the foregoing;
(b) any acceptance by Mortgagee of any security for or guarantees
of any of the indebtedness hereby secured;
(c) any failure, neglect or omission on the part of Mortgagee to
realize upon or protect any of the indebtedness hereby secured or any of the
collateral security therefor, including the Relevant Documents;
(d) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations;
(e) any release (except as to the property or obligation released),
sale, pledge, surrender, compromise, settlement, nonperfection, renewal
extension, indulgence, alteration, exchange, modification or disposition of
any of the Obligations hereby secured or of any of the collateral security
therefor;
(f) any amendment or waiver of or any consent to any departure from
the Notes or any other Relevant Documents or of any guaranty thereof (except
to the extent of such amendment, waiver or consent in writing by Mortgagee),
if any, and Mortgagee may in its discretion foreclose, exercise any power of
sale, or exercise any other remedy available to it under any or all of the
Relevant Documents without first exercising or enforcing any of its rights
and remedies hereunder; and
(g) any exercise of the rights or remedies of Mortgagee hereunder
or under any or all of the Relevant Documents.
Mortgagor specifically consents and agrees that Mortgagee may exercise its
rights and remedies hereunder and under the other Relevant Documents
separately or concurrently and in any order that Mortgagee may deem
appropriate.
47. Future Advances. This Mortgage shall secure not only existing
indebtedness, but also such future advances, whether such advances are
obligatory or are to be made at the option of Mortgagee, or otherwise, as are
made by Mortgagee to Mortgagor after the date hereof, to the same extent as
if such future advances were made on the date of the execution of this
Mortgage. Nothing in this Mortgage shall be deemed an obligation on the part
of the Mortgagee to make any future advances.
32
48. State Specific Provisions. The provisions of Exhibit B are
hereby incorporated by reference as though set forth in full herein.
49. No Merger of Estates. It is the intention and agreement of
Mortgagor and Mortgagee that there shall be no merger of any leasehold estate
in the Mortgaged Property with the fee interest in the Mortgaged Property or
any other estate or interest in the Mortgaged Property, and there shall be no
merger of this Mortgage and any estate in the Mortgaged Property, by reason
of the fact that the same person may own or hold (a) any leasehold interest
in the Mortgaged Property, and/or (b) this Mortgage, and/or (c) the fee
interest in the Mortgaged Property or any other estate or interest in the
Mortgaged Property.
50. Subordinate Lien. Notwithstanding anything to the contrary
contained herein, Mortgagor shall be permitted to grant a subordinate lien on
the Mortgaged Property in favor of State Street Bank and Trust Company,
solely in its capacity as trustee and collateral agent under and pursuant to
the Indenture (as hereinafter defined) (the "Subordinated Creditor") as
security for the obligations of Mortgagor under that certain Indenture
between Mortgagor and the Subordinated Creditor dated as of July 22, 1997
(the "Indenture"), provided that such lien in favor of the Subordinated
Creditor is junior, subject and subordinate to the lien of this Mortgage in
accordance with and pursuant to the terms and conditions set forth in that
certain Subordination Agreement dated as of the date hereof between Mortgagee
and the Subordinated Creditor with respect to the Mortgaged Property (the
"Subordination Agreement"), and provided, further, that any event which gives
the Subordinated Creditor the right to accelerate the obligations secured by
such subordinate lien shall automatically constitute an Event of Default
hereunder.
[Remainder of page intentionally left blank; signature and notary pages follow.]
33
IN WITNESS WHEREOF, this Mortgage has been duly executed under seal
by the Mortgagor as of the day and year first written above.
In the Presence of: MORTGAGOR:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ DISCOVERY ZONE, INC., a Delaware
---------------------------- corporation, as successor in interest to
LEAPS & BOUNDS, INC.
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
In the Presence of:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: SrVP.
STATE OF NEW YORK )
COUNTY OF WESTCHESTER)
Before me, a Notary Public in and for said County and State,
personally appeared the above-named DISCOVERY ZONE, INC., a corporation
organized under the laws of Delaware by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
its President and Sr. Vice Pres., who acknowledged that they did sign the
foregoing instrument for and on behalf of DISCOVERY ZONE, INC., and that the
same is the free act and deed of DISCOVERY ZONE, INC. and their free act and
deed individually and as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, this 28th day of July 1997.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Notary Public
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public State of New York
No. 4997846
Qualified in New York County
Commission Expires June 15, 1998
THIS DOCUMENT PREPARED BY AND
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT A
LEGAL DESCRIPTION
DESCRIPTION OF 1.899 ACRES OF LAND
LOCATED ON THE SOUTHERLY SIDE OF CHANTRY
DRIVE AND WEST OF ▇▇▇▇▇ ROAD, IN THE
CITY OF COLUMBUS, COUNTY OF FRANKLIN,
STATE OF OHIO
SITUATED IN THE STATE OF OHIO, COUNTY OF FRANKLIN, CITY OF COLUMBUS,
BEING IN HALF SECTION 45, SECTION 26, TOWNSHIP 12, RANGE 21, REFUGEE LANDS,
CONTAINING 1.899 ACRES OF LAND, MORE OR LESS, SAID 1.899 ACRES OF LAND BEING
OUT OF THAT 50.917 ACRE TRACT OF LAND DESCRIBED IN THE DEED TO CHANTRY SQUARE
JOINT VENTURE, OF RECORD IN OFFICIAL RECORD 09543J14, RECORDER'S OFFICE,
FRANKLIN COUNTY, OHIO, SAID 1.899 ACRES OF LAND MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT IN A SOUTHERLY RIGHT-OF-WAY LINE OF CHANTRY DRIVE,
EIGHTY FEET IN WIDTH, AS SAID CHANTRY DRIVE IS DESIGNATED AND DELINEATED UPON
THE RECORDED PLAT OF THE DEDICATION OF SCARBOROUGH BOULEVARD, CHANTRY DRIVE,
PARK CRESCENT, ALSHIRE ROAD AND EASEMENTS, OF RECORD IN PLAT BOOK 46, PAGE
52, 53, 54 AND 55, SAID POINT BEING THE NORTHEASTERLY CORNER OF THAT 1.972
ACRE TRACT OF LAND DESIGNATED AS TRACT II AND DESCRIBED IN THE DEED TO
BRATCHER, CAMANITI, ▇▇▇▇▇ AND ▇▇▇▇▇▇, OF RECORD IN OFFICIAL RECORD 03520A07,
BOTH BEING OF RECORD IN THE RECORDER'S OFFICE, FRANKLIN COUNTY, OHIO, SAID
POINT ALSO BEING THE TRUE PLACE OF BEGINNING FOR THE PARCEL HEREIN DESCRIBED:
THENCE EASTWARDLY, WITH THE SOUTHERLY RIGHT-OF-WAY BOUNDARY OF SAID
CHANTRY DRIVE AND WITH THE NORTHERLY BOUNDARY OF SAID 50.917 ACRE TRACT, THE
FOLLOWING SEVEN (7) COURSES AND DISTANCES:
1) S 86 DEGREES 10' 30" E, A DISTANCE OF 232.07 FEET TO POINT OF
CURVATURE;
2) WITH THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 35.00 FEET, A
CENTRAL ANGLE OF 90 DEGREES 00' 00" AND A CHORD THAT BEARS S 41
DEGREES 10' 30" E, A CHORD DISTANCE OF 49.50 FEET TO A POINT.
3) S 86 DEGREES 10' 30" E, A DISTANCE OF 16.71 FEET TO A POINT;
4) S 17 DEGREES 53' 38" E, A DISTANCE OF 19.49 FEET TO POINT;
5) S 3 DEGREES 49' 30" W, A DISTANCE OF 166.92 FEET TO A POINT;
6) S 49 DEGREES 34' 9" W, A DISTANCE OF 113.8 FEET TO A POINT;
7) N 86 DEGREES 10' 30" W, A DISTANCE OF 209.44 FEET TO A POINT;
8) N 3 DEGREES 49' 30" E, A DISTANCE OF 299.49 FEET TO THE TRUE POINT OF
BEGINNING AND CONTAINING 1.899 ACRES OF LAND MORE OR LESS.
Parcel 2
The Easement interest created by Article III of the Construction and
Easement Agreement recorded in Official Records Volume 24988, page D07,
Recorder's Office, Franklin County, Ohio.
EXHIBIT B
STATE SPECIFIC PROVISIONS (Ohio)
The following provisions are incorporated by reference into Section
48 of the attached Mortgage. If any conflict or inconsistency exists between
this Exhibit B and the remainder of the attached Mortgage, this Exhibit B
shall govern.
A. Maximum Principal Indebtedness. This Mortgage secures the
unpaid balance of loan advances which may be made after this Mortgage is
filed for record. The maximum amount of the unpaid principal balance of all
loan advances (in the aggregate and exclusive of interest thereon and other
advances made for the payment of taxes, insurance, or for protection of the
Mortgaged Property) which may be outstanding at any time is $59 million. In
addition to any other debt or obligation secured hereby, this Mortgage shall
also secure unpaid balances of advances made with respect to the Mortgaged
Property for the payment of taxes, assessments, insurance premiums, and costs
incurred for maintaining the Improvements on, or for the protection of, the
Mortgaged Property.
B. Mechanics' Lien Law. Mortgagee shall be and hereby is
authorized and empowered to do, as mortgagee, all things provided to be done
in the mechanics' lien laws of the State of Ohio (including Section 1311.14
of the Ohio Revised Code), and all acts amendatory or supplementary thereto.
SCHEDULE A
DESCRIPTION OF ORIGINAL MORTGAGE
Recording
Property Recording Office Volume Page Date
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Recorder's Office