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OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS,
SECURITY AGREEMENT AND FIXTURE FINANCING
STATEMENT
(Maximum unpaid indebtedness, exclusive of
interest
and protective advances, not to exceed
$27,000,000.00)
made by
APPLE ORCHARD, L.L.C., a Michigan limited
liability company
("Mortgagor")
in favor of
LASALLE BANK MIDWEST NATIONAL
ASSOCIATION,
a national banking association
("Bank")
Dated: Jun 20,
2008
Relating to Property located in Clermont County,
Ohio
_____________________________________________________________________________________
THIS MORTGAGE IS ALSO A FINANCING STATEMENT
COVERING FIXTURES, AND IS TO BE INDEXED IN THE REAL ESTATE
RECORDS.
THE NAMES OF THE DEBTOR AND THE SECURED PARTY,
THE MAILING ADDRESS OF THE SECURED PARTY FROM WHICH INFORMATION
CONCERNING THE SECURITY INTEREST MAY BE OBTAINED, THE MAILING
ADDRESS OF THE DEBTOR AND A STATEMENT INDICATING THE TYPES, OR
DESCRIBING THE ITEMS OF COLLATERAL, ARE AS DESCRIBED IN THIS
MORTGAGE.
OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(Secures Future Advances)
Maximum Indebtedness not to Exceed
$27,000,000
This OPEN-END
MORTGAGE dated as of
June 20, 2008 (the " Mortgage
"), is executed by APPLE
ORCHARD, L.L.C. , a Michigan limited
liability company, whose address is 27777 Franklin Road, Suite 200,
Southfield, Michigan 48034 (the “ Mortgagor ”), to and for the
benefit of LASALLE BANK MIDWEST NATIONAL
ASSOCIATION , a national banking
association, whose address is 2600 West Big Beaver Road, Troy,
Michigan 48084, its successors and assigns (the “
Bank ”).
R E C
I T A
L S :
A. APPLE
ORCHARD, L.L.C. , a Michigan limited
liability company; SUN LAKEVIEW
LLC , a Michigan limited liability
company; and SUN TAMPA EAST,
LLC , a Michigan limited liability
company (collectively, the " Borrower "), desires to borrow funds
and obtain other financial accommodations from the Bank, including,
without limitation, a loan evidenced by a promissory note from the
Borrower to the Bank, dated June 20, 2008, in the principal amount
of TWENTY SEVEN MILLION and 00/100 Dollars ($27,000,000.00) (as
amended, restated or replaced from time to time, the "
Note ").
B.
As a condition to the Bank's loaning funds or
providing other financial accommodations to the Borrower, the Bank
requires that the Mortgagor grant this Mortgage in order to secure
the obligations and performance of the Borrower under such loans or
financial accommodations.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Mortgagor agrees as follows:
A G R E E M E N T S:
The Mortgagor does hereby GRANT, BARGAIN, SELL,
CONVEY, ASSIGN, TRANSFER, MORTGAGE and WARRANT and GRANT A SECURITY
INTEREST to the Bank and its successors and assigns forever in and
to the following described property, rights and interests (referred
to collectively herein as the “ Property ”):
(a)
The real estate located in the State of Ohio and
legally described on Exhibit_A
attached hereto and made a part hereof (the
“ Real Estate ”);
(b)
All improvements of every nature whatsoever now or
hereafter situated on the Real Estate, including all extensions,
additions, improvements, betterments, renewals, substitutions and
replacements to any of the foregoing (the “
Improvements ”);
(c)
All easements, rights of way, gores of real estate,
streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and
appurtenances whatsoever, in any way now or hereafter belonging,
relating or appertaining to the Real Estate, and the reversions,
remainders, rents, issues and profits thereof, and all the estate,
right, title, interest, property, possession, claim and demand
whatsoever, at law as well as in equity, of the Mortgagor of, in
and to the same;
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(d)
All rents, revenues, issues, profits, proceeds,
income, royalties, Letter of Credit Rights (as defined in the
Uniform Commercial Code of the State of Ohio (the “
Code ”) in effect
from time to time), escrows, security deposits, impounds, reserves,
tax refunds and other rights to monies from the Property and/or the
businesses and operations conducted by the Mortgagor
thereon;
(e)
All interest of the Mortgagor in all leases and
rental agreements (including, without limitation, oil and gas
leases and any specific lease(s) described in an attachment to this
Mortgage), written or unwritten, now or hereafter demising the
Property in whole or in any part, and all amendments,
modifications, extensions, renewals, substitutions and replacements
for any of the foregoing (each, a “ Lease ”, and collectively, the
“ Leases ”), together with all security therefor and all monies
payable thereunder;
(f)
All fixtures and articles of personal property now
or hereafter owned by the Mortgagor and located on or forming a
part of or used in connection with the Real Estate or the
Improvements, including, but without limitation, any and all air
conditioners, antennae, appliances, apparatus, awnings, basins,
bathtubs, bidets, boilers, bookcases, cabinets, carpets, computer
hardware and software used in the operation of the Property,
coolers, curtains, dehumidifiers, disposals, doors, drapes, dryers,
ducts, dynamos, elevators, engines, equipment, escalators, exercise
equipment, fans, fittings, floor coverings, furnaces, furnishings,
furniture, hardware, heaters, humidifiers, incinerators, lighting,
machinery, motors, ovens, pipes, plumbing, pumps, radiators,
ranges, recreational facilities, refrigerators, screens, security
systems, shades, shelving, sinks, sprinklers, stokers, stoves,
toilets, ventilators, wall coverings, washers, windows, window
coverings, wiring, and all renewals or replacements thereof or
articles in substitution therefor, whether or not the same are or
shall be attached to the Real Estate or the Improvements in any
manner, together with the benefit of any deposits or payments now
or hereafter made on such personal property or fixtures by the
Mortgagor or on its behalf; it being mutually agreed that all of
the aforesaid property owned by the Mortgagor and placed on the
Real Estate or the Improvements, so far as permitted by law, shall
be deemed to be fixtures, a part of the realty, and security for
the Obligations; notwithstanding the agreement hereinabove
expressed that certain articles of property form a part of the
realty covered by this Mortgage and be appropriated to its use and
deemed to be realty, to the extent that such agreement and
declaration may not be effective and that any of said articles may
constitute Goods (as defined in the Code), this instrument shall
constitute a security agreement, creating a security interest in
such goods, as collateral, in the Bank, as a Secured Party, and the
Mortgagor, as Debtor, all in accordance with the Code;
(g)
All of the Mortgagor’s interests in General
Intangibles, including Payment Intangibles and Software (each as
defined in the Code) now owned or hereafter acquired and related to
the Property, including, without limitation, all of the
Mortgagor’s right, title and interest in and to: (i) all
agreements, licenses, permits and contracts to which the Mortgagor
is or may become a party and which relate to the Property;
(ii) all obligations and indebtedness owed to the Mortgagor
thereunder; (iii) all intellectual property related to the
Property; and (iv) all choses in action and causes of action
relating to the Property;
(h)
All of the Mortgagor’s accounts now owned or
hereafter created or acquired as relate to the Property and/or the
businesses and operations conducted thereon, including, without
limitation, all of the following now owned or hereafter created or
acquired by the Mortgagor: (i) Accounts (as defined in the
Code), contract rights, book debts, notes, drafts, and other
obligations or indebtedness owing to the Mortgagor arising from the
sale, lease or exchange of goods or other property and/or the
performance of services; (ii) the Mortgagor’s rights in,
to and
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under all purchase orders for goods, services or
other property; (iii) the Mortgagor’s rights to any
goods, services or other property represented by any of the
foregoing; (iv) monies due or to become due to the Mortgagor
under all contracts for the sale, lease or exchange of goods or
other property and/or the performance of services including the
right to payment of any interest or finance charges in respect
thereto (whether or not yet earned by performance on the part of
the Mortgagor); (v) Securities, Investment Property, Financial
Assets and Securities Entitlements (each as defined in the Code);
(vi) proceeds of any of the foregoing and all collateral
security and guaranties of any kind given by any person or entity
with respect to any of the foregoing; and (vii) all
warranties, guarantees, permits and licenses in favor of the
Mortgagor with respect to the Property; and
(i)
All proceeds of the foregoing, including, without
limitation, all judgments, awards of damages and settlements
hereafter made resulting from condemnation proceeds or the taking
of the Property or any portion thereof under the power of eminent
domain, any proceeds of any policies of insurance, maintained with
respect to the Property or proceeds of any sale, option or contract
to sell the Property or any portion thereof;
FOR THE PURPOSE OF SECURING all loans, advances and
other financial accommodations, including any renewals or
extensions thereof, from the Bank to the Borrower and/or the
Mortgagor and any and all indebtedness, liabilities and obligations
of any and every kind and nature heretofore, now or hereafter owing
from the Borrower and/or the Mortgagor to the Bank, however
incurred or evidenced, whether primary, secondary, contingent or
otherwise, whether arising under the Note, and any and all
extensions and renewals thereof, this Mortgage, under any other
security agreement(s), promissory note(s), guaranty(s),
mortgage(s), lease(s), letter(s) of credit, interest rate, currency
or commodity swap agreement(s), cap agreement(s) or collar
agreement(s), and any other agreement(s) or arrangement(s) designed
to protect the Borrower against fluctuations in interest rates,
currency exchange rates or commodity prices, or any other
instrument(s), document(s), contract(s) or agreement(s) heretofore,
now or hereafter executed by Borrower and/or the Mortgagor and
delivered to the Bank or to or under which Borrower and/or the
Mortgagor or any subsidiary or affiliate of Borrower and/or the
Mortgagor is a party or beneficiary (collectively, the "
Loan Documents "), or
by oral agreement or by operation of law, plus all interest, costs,
expenses and reasonable attorney fees which may be made or incurred
by the Bank in the disbursement, administration or collection of
such indebtedness, liabilities and obligations and in the
protection, maintenance and liquidation of any collateral for such
indebtedness, liabilities and obligations, and ANY FUTURE ADVANCES,
WITH INTEREST THEREON, made to the Borrower and/or the Mortgagor by
the Bank which are secured by this Mortgage pursuant to the
provisions hereof (collectively, the " Obligations "). The Mortgagor
covenants to pay when due any Obligations for which it is liable in
accordance with the terms of the Loan Documents and duly perform
and observe all of the terms, covenants and conditions to be
observed and performed by the Mortgagor under the Note, this
Mortgage and the other Loan Documents.
This Mortgage is intended to secure the unpaid
balance of loan advances to be made to the Borrower by the Bank
under the Note after this Mortgage has been delivered to the
Clermont County, Ohio, Recorder's Office for recordation, in
accordance with Sections 5301.232 and 5301.233 of the Ohio Revised
Code. The maximum amount of loan advances under the Note, exclusive
of interest thereon and amounts made for the payment of taxes,
assessment, insurance premiums and costs incurred for the
protection of the Project, which may be outstanding at any time, is
Twenty Seven Million and 00/100 Dollars
($27,000,000.00).
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IT IS FURTHER UNDERSTOOD AND AGREED THAT:
1.
Title . The
Mortgagor represents, warrants and covenants that (a) the
Mortgagor is the holder of the fee simple title to the Property,
free and clear of all liens and encumbrances, except those liens
and encumbrances in favor of the Bank and as otherwise described
on Exhibit_B attached hereto and made a part hereof (the “
Permitted Exceptions ”); and (b) the Mortgagor has legal power and
authority to mortgage and convey the Property.
2.
Assignment of Rents and Leases
. As additional security for the Obligations and
performance of the covenants and agreements set forth herein,
Mortgagor hereby assigns to the Bank, and grants Bank a security
interest in, any and all Leases, and all rents, issues, income and
profits derived from the use of the Property or any portion
thereof, whether due or to become due. These assignments shall run
with the land and shall be good and valid against Mortgagor and all
persons claiming by, under, or through Mortgagor from the date of
recording of this Mortgage and shall continue to be operative
during foreclosure or any other proceedings taken to enforce this
Mortgage. If any foreclosure sale results in a deficiency, the
assignments shall continue as security during the foreclosure
redemption period. Mortgagor covenants with and warrants to Bank
that as of the date of this Mortgage:
(a)
Each Lease is in full force and effect and there are
no defaults existing thereunder; and
(b)
Mortgagor has not, except as may be described in an
attachment, if any, to this Mortgage: (1) executed or granted any
prior assignment, encumbrance, or security interest in any Lease or
the rentals thereunder; (2) performed any acts or executed any
other instruments or agreements which would limit or prevent Bank
from obtaining the benefit of and exercising its rights conferred
by this Mortgage; or (3) executed or granted any modification of
any Lease, either orally or in writing.
(c)
As of the date of this Mortgage and for so long as
any of the Obligations remains unpaid or unperformed:
(i)
Mortgagor shall promptly inform Bank of, assign, and
deliver, any subsequent Lease of the Property or any part thereof,
and make, execute and deliver to the Bank, upon demand, any and all
documents, agreements and instruments as may, in Bank's opinion, be
necessary to protect the Bank's rights under this Mortgage;
provided, that Mortgagor's failure to do so will not impair Bank's
interest in or rights with respect to any subsequent Lease, nor in
any way affect the applicability of this Mortgage to such Lease and
the unpaid rents due or to become due thereunder.
(ii)
Mortgagor shall not, without the prior written
consent of Bank: (1) cancel or accept surrender of a Lease; (2)
modify or alter a Lease in any way, either orally or in writing;
(3) reduce the amount of or postpone payment of any Lease rents;
(4) consent to any assignment of the lessee's interest in a Lease,
or any subletting thereunder; (5) collect or accept payment of
rents under a Lease for more than one (1) month in advance; (6)
make any other assignment, pledge, encumbrance, or other
disposition of a Lease or any Lease rents, issues, income or
profits.
(d)
Mortgagor shall perform and discharge each and every
obligation, covenant, and agreement required to be performed by the
landlord under any Lease and should Mortgagor fail to do so the
Bank, at Bank's sole option and without releasing Mortgagor from
any such obligation, may make or do the same in such manner and to
such extent as the Bank deems necessary to
5
protect its rights and interests under this
Mortgage. Any and all costs, expenses and sums paid by the Bank in
performing under any Lease, including reasonable attorney fees,
shall be added to the Obligations secured by this Mortgage. This
assignment of rents is given as collateral security only and will
not be construed as obligating Bank to perform any of the covenants
or undertakings required to be performed by Mortgagor under any
Lease.
3.
Maintenance, Repair, Restoration, Prior Liens,
Parking . The Mortgagor covenants
that, so long as any portion of the Obligations remains unpaid, the
Mortgagor will: (a) promptly repair, restore or rebuild any
Improvements now or hereafter on the Property which may become
damaged or be destroyed to a condition substantially similar to the
condition immediately prior to such damage or destruction, whether
or not proceeds of insurance are available or sufficient for the
purpose; (b) keep the Property in good condition and repair,
without waste, and free from construction or like liens or claims
or other liens or claims for lien (subject to the Mortgagor’s
right to contest liens as permitted by the terms hereof; (c) pay
when due any indebtedness which may be secured by a permitted lien
or charge on the Property, and upon request furnish satisfactory
evidence of the discharge of such lien to the Bank (subject to the
Mortgagor’s right to contest liens as permitted by the terms
of hereof); (d) comply with all requirements of law, municipal
ordinances or restrictions and covenants of record with respect to
the Property and the use thereof; (e) obtain and maintain in full
force and effect, and abide by and satisfy the material terms and
conditions of, all material permits, licenses, registrations and
other authorizations with or granted by any governmental
authorities that may be required from time to time with respect to
the performance of its obligations under this Mortgage; (f) make no
material alterations in the Property or demolish any portion of the
Property without the Bank’s prior written consent, except as
required by law or municipal ordinance; (g) suffer or permit no
change in the use or general nature of the occupancy of the
Property, without the Bank’s prior written consent; (h) not
initiate or acquiesce in any zoning reclassification with respect
to the Property, without the Bank’s prior written consent;
(i) provide and thereafter maintain adequate parking areas within
the Property as may be required by law, ordinance or regulation
(whichever may be greater), together with any sidewalks, aisles,
streets, driveways and sidewalk cuts and sufficient paved areas for
ingress, egress and right-of-way to and from the adjacent public
thoroughfares necessary or desirable for the use thereof; and (j)
comply, and cause the Property at all times to be operated in
compliance, with all applicable federal, state, local and municipal
environmental, health and safety laws, statutes, ordinances, rules
and regulations.
4.
Payment of Taxes and
Assessments . The Mortgagor will pay
before delinquent or the date on which any penalty attaches, all
general and special taxes, assessments, water charges, sewer
charges, and other fees, taxes, charges and assessments of every
kind and nature whatsoever (all herein generally called
“ Taxes ”), whether or not assessed against the Mortgagor, if
applicable to the Property or any interest therein, or the
Obligations, or any obligation or agreement secured hereby, subject
to the Mortgagor’s right to contest the same, as provided by
the terms hereof; and the Mortgagor will, upon written request,
furnish to the Bank duplicate receipts therefor within ten (10)
days after the Bank’s request. After the occurrence of an
Event of Default and the expiration of any applicable cure period,
the Bank shall have the right to request that the Mortgagor deposit
with the Bank monthly such amounts as estimated by the Bank will be
sufficient to establish a fund from which to pay in full each
installment of annual Taxes for the current calendar year as it
becomes due. Such deposits will be held without any allowance of
interest and are to be used for the payment of Taxes next due and
payable when they become due. So long as no Event of Default shall
exist, the Bank shall, at its option, pay such Taxes when the same
become due and payable (upon submission of appropriate bills
therefor from the Mortgagor) or shall release sufficient funds to
the Mortgagor for the payment thereof. If the funds so deposited
are insufficient to pay any such Taxes for any year (or
installments thereof, as applicable) when the same shall become due
and payable, the Mortgagor shall, within ten (10) days after
receipt of written demand therefor, deposit additional funds as may
be necessary to pay such Taxes in full. If the funds so deposited
exceed the amount required to pay such Taxes for any year, the
excess shall be applied toward
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subsequent deposits. Said deposits need not be kept
separate and apart from any other funds of the Bank. The Bank, in
making any payment hereby authorized relating to Taxes, may do so
according to any bill, statement or estimate procured from the
appropriate public office without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax,
assessment, sale, forfeiture, tax lien or title or claim thereof.
Upon an Event of Default, the Bank may, at its option, apply any
monies at the time on deposit to cure an Event of Default or to pay
any of the Obligations in such order and manner as the Bank may
elect. If such deposits are used to cure an Event of Default or pay
any of the Obligations, the Mortgagor shall immediately, upon
demand by the Bank, deposit with the Bank an amount equal to the
amount expended by the Mortgagor from the deposits. When the
Obligations has been fully paid, any remaining deposits shall be
returned to the Mortgagor. Such deposits are hereby pledged as
additional security for the Obligations and shall not be subject to
the direction or control of the Mortgagor. The Bank shall not be
liable for any failure to apply to the payment of Taxes any amount
so deposited unless the Mortgagor, prior to an Event of Default,
shall have requested the Bank in writing to make application of
such funds to the payment of such amounts, accompanied by the bills
for such Taxes. The Bank shall not be liable for any act or
omission taken in good faith or pursuant to the instruction of any
party.
5.
Insurance . The
Mortgagor shall at all times keep all buildings, improvements,
fixtures and articles of personal property now or hereafter
situated on the Property insured against loss or damage by fire and
such other hazards as may reasonably be required by the Bank, in
accordance with the Bank's current insurance requirements, and such
other insurance as the Bank may from time to time reasonably
require.
(a)
Unless the Mortgagor provides the Bank evidence of
the insurance coverages required hereunder, the Bank may purchase
insurance at the Mortgagor’s expense to cover the
Bank’s interest in the Property. The insurance may, but need
not, protect the Mortgagor’s interest. The coverages that the
Bank purchases may not pay any claim that the Mortgagor makes or
any claim that is made against the Mortgagor in connection with the
Property. The Mortgagor may later cancel any insurance purchased by
the Bank, but only after providing the Bank with evidence that the
Mortgagor has obtained insurance as required by this Mortgage. If
the Bank purchases insurance for the Property, the Mortgagor will
be responsible for the costs of such insurance, including, without
limitation, interest and any other charges which the Bank may
impose in connection with the placement of the insurance, until the
effective date of the cancellation or expiration of the insurance.
The costs of the insurance may be added to the Obligations. The
cost of the insurance may be more than the cost of insurance the
Mortgagor may be able to obtain on its own.
(b)
The 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 the Bank is included
thereon as the loss payee or an additional insured as applicable,
under a standard mortgage clause acceptable to the Bank and such
separate insurance is otherwise acceptable to the Bank.
(c)
In the event of loss, the Mortgagor shall give
prompt notice thereof to the Bank, who, if such loss exceeds an
amount equal to ten percent (10.00%) of the Obligations (the
“ Threshold ”), shall have the sole and absolute right to make proof
of loss. If such loss exceeds the Threshold or if such loss is
equal to or less than the Threshold and the conditions set forth in
clauses (i), (ii) and (iii) of the immediately succeeding
subsection are not satisfied, then the Bank, solely and directly,
shall receive such payment for loss from each insurance company
concerned. If and only if (i) such loss is equal to or less
than the Threshold, (ii) no Event of Default or event that
with the passage of time, the giving of notice or both would
constitute an Event of Default then exists, (iii) the Bank
determines that the work required to complete the repair or
restoration
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of the Property necessitated by such loss can be
completed no later than the maturity date of the earliest maturing
Obligation, and (iv) the total of the insurance proceeds and
such additional amounts placed on deposit with the Bank by the
Mortgagor for the specific purpose of rebuilding or restoring the
Improvements equals or exceeds, in the sole and absolute discretion
of the Bank, the reasonable costs of such rebuilding or
restoration, then the Bank shall endorse to the Mortgagor any such
payment and the Mortgagor may collect such payment directly. The
Bank shall have the right, at its option and in its sole
discretion, to apply any insurance proceeds received by the Bank
pursuant to the terms of this section, after the payment of all of
the Bank’s expenses, either (i) on account of the
Obligations, irrespective of whether such principal balance is then
due and payable, whereupon the Bank may declare the whole of the
balance of Obligations to be due and payable, or (ii) to the
restoration or repair of the property damaged as provided in
subsection (d) below; provided, however, that the Bank hereby
agrees to permit the application of such proceeds to the
restoration or repair of the damaged property, subject to the
provisions of subsection (d) below, if (i) the Bank has
received satisfactory evidence that such restoration or repair
shall be completed no later than the maturity date of the earliest
maturing Obligation, and (ii) no Event of Default, or event
that with the passage of time, the giving of notice or both would
constitute an Event of Default, then exists. If insurance proceeds
are made available to the Mortgagor by the Bank as hereinafter
provided, the Mortgagor shall repair, restore or rebuild the
damaged or destroyed portion of the Property so that the condition
and value of the Property are substantially the same as the
condition and value of the Property prior to being damaged or
destroyed. Any insurance proceeds applied on account of the unpaid
principal balance of the Obligations shall be subject to any
prepayment premium provided for in the Loan Documents. In the event
of foreclosure of this Mortgage, all right, title and interest of
the Mortgagor in and to any insurance policies then in force shall
pass to the purchaser at the foreclosure sale.
(d)
If insurance proceeds are made available by the Bank
to the Mortgagor, the Mortgagor shall comply with the following
conditions:
(iii)
Before commencing to repair, restore or rebuild
following damage to, or destruction of, all or a portion of the
Property, whether by fire or other casualty, the Mortgagor shall
obtain from the Bank its approval of all site and building plans
and specifications pertaining to such repair, restoration or
rebuilding.
(iv)
Prior to each payment or application of any
insurance proceeds to the repair or restoration of the improvements
upon the Property, the Bank shall be satisfied as to the
following:
(A)
either such Improvements have been fully restored,
or the expenditure of money as may be received from such insurance
proceeds will be sufficient to repair, restore or rebuild the
Property, free and clear of all liens, claims and encumbrances,
except the lien of this Mortgage and the Permitted Exceptions, or,
if such insurance proceeds shall be insufficient to repair, restore
and rebuild the Property, the Mortgagor has deposited with the Bank
such amount of money which, together with the insurance proceeds
shall be sufficient to restore, repair and rebuild the Property;
and
(B)
prior to each disbursement of any such proceeds, the
Bank shall be furnished with a statement of the Bank’s
architect (the cost of which shall be borne by the Mortgagor),
certifying the extent of the repair and restoration completed to
the date thereof, and that such repairs, restoration, and
rebuilding
8
have been performed to date in conformity with the
plans and specifications approved by the Bank and with all
statutes, regulations or ordinances (including building and zoning
ordinances) affecting the Property; and the Bank shall be furnished
with appropriate evidence of payment for labor or materials
furnished to the Property, and total or partial lien waivers
substantiating such payments.
(v)
If the Mortgagor shall fail to restore, repair or
rebuild the Improvements within a time deemed satisfactory by the
Bank, then the Bank, at its option, may (A) commence and perform
all necessary acts to restore, repair or rebuild the said
Improvements for or on behalf of the Mortgagor, or (B) declare an
Event of Default. If insurance proceeds shall exceed the amount
necessary to complete the repair, restoration or rebuilding of the
Improvements, such excess shall be applied on account of the
Obligations irrespective of whether such Obligations is then due
and payable without payment of any premium or penalty.
6.
Condemnation .
If all or any part of the Property are damaged, taken or acquired,
either temporarily or permanently, in any condemnation proceeding,
or by exercise of the right of eminent domain, the amount of any
award or other payment for such taking or damages made in
consideration thereof, to the extent of the full amount of the
remaining unpaid Obligations, is hereby assigned to the Bank, who
is empowered to collect and receive the same and to give proper
receipts therefor in the name of the Mortgagor and the same shall
be paid forthwith to the Bank. Such award or monies shall be
applied on account of the Obligations, irrespective of whether such
Obligations is then due and payable and, at any time from and after
the taking the Bank may declare the whole of the balance of the
Obligations to be due and payable. Notwithstanding the provisions
of this section to the contrary, if any condemnation or taking of
less than the entire Property occurs and provided that no Event of
Default and no event or circumstance which with the passage of
time, the giving of notice or both would constitute an Event of
Default then exists, and if such partial condemnation, in the
reasonable discretion of the Bank, has no material adverse effect
on the operation or value of the Property, then the award or
payment for such taking or consideration for damages resulting
therefrom may be collected and received by the Mortgagor, and the
Bank hereby agrees that in such event it shall not declare the
Obligations to be due and payable, if it is not otherwise then due
and payable.
7.
Taxation . If,
by the laws of the United States of America, or of any state or
political subdivision having jurisdiction over the Mortgagor, any
tax is due or becomes due in respect of the execution and delivery
of this Mortgage or any of the other Loan Documents, the Mortgagor
shall pay such tax in the manner required by any such law. The
Mortgagor further agrees to reimburse the Bank for any sums which
the Bank may expend by reason of the imposition of any such tax.
Notwithstanding the foregoing, the Mortgagor shall not be required
to pay any income or franchise taxes of the Bank. If any law is
enacted after the date hereof requiring (a) the deduction of
any lien on the Property from the value thereof for the purpose of
taxation or (b) the imposition upon the Bank of the payment of
the whole or any part of the Taxes, charges or liens herein
required to be paid by the Mortgagor, or (c) a change in the
method of taxation of mortgages or debts secured by mortgages or
the Bank’s interest in the Property, or the manner of
collection of taxes, so as to affect this Mortgage or the
Obligations or the holders thereof, then the Mortgagor, upon demand
by the Bank, shall pay such Taxes or charges, or reimburse the Bank
therefor; provided, however, that the Mortgagor shall not be deemed
to be required to pay any income or franchise taxes of the Bank.
Notwithstanding the foregoing, if in the opinion of counsel for the
Bank, it is or may be unlawful to require the Mortgagor to make
such payment or the making of such payment might result in the
imposition of interest beyond the maximum amount permitted by law,
then the Bank may declare all of the Obligations to be immediately
due and payable.
9
8.
Bank’s Performance of Defaulted Acts and
Expenses Incurred by Bank . If an
Event of Default has occurred, the Bank may, but need not, make any
payment or perform any act herein required of the Mortgagor in any
form and manner deemed expedient by the Bank, and may, but need
not, make full or partial payments of principal or interest on
prior encumbrances, if any, and purchase, discharge, compromise or
settle any tax lien or other prior lien or title or claim thereof,
or redeem from any tax sale or forfeiture affecting the Property or
consent to any tax or assessment or cure any default of the
Mortgagor in any lease of the Property. All monies paid for any of
the purposes herein authorized and all expenses paid or incurred in
connection therewith, including reasonable attorneys’ fees,
and any other monies advanced by the Bank in regard to any tax
provided for herein or to protect the Property or the lien hereof,
shall be so much additional Obligations, and shall become
immediately due and payable by the Mortgagor to the Bank, upon
demand, and with interest thereon accruing from the date of such
demand until paid at the highest rate provided in the Loan
Documents. In addition to the foregoing, any costs, expenses and
fees, including reasonable attorneys’ fees, incurred by the
Bank in connection with (a) sustaining the lien of this
Mortgage or its priority, (b) protecting or enforcing any of
the Bank’s rights hereunder, (c) recovering any
Obligations, (d) any litigation or proceedings affecting the
Note, this Mortgage, any of the other Loan Documents or the
Property, including without limitation, bankruptcy and probate
proceedings, or (e) preparing for the commencement, defense
or participation in any threatened litigation or proceedings
affecting the Note, this Mortgage, any of the other Loan Documents
or the Property, with interest thereon accruing from the date of
such demand until paid at the highest rate provided in the Loan
Documents, shall be so much additional Obligations, and shall
become immediately due and payable by the Mortgagor to the Bank,
upon demand. Should any amount paid out or advanced by the Bank
hereunder, or pursuant to any agreement executed by the Mortgagor
in connection with the Loan, be used directly or indirectly to pay
off, discharge or satisfy, in whole or in
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