MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FILING STATEMENT
Dated as of
August 28, 2009
From
BLUE
RIDGE WMN, LLC
(the
“Company” )
To
WELLS
FARGO BANK NORTHWEST, N.A. AS TRUSTEE
(the
“Mortgagee” )
Walgreen Co.
Store
This
instrument was
northeast
corner State Highway 120 (Century Avenue)
prepared by
and when recorded
and State
Highway 244 (Wildwood Avenue)
return
to:
City of White
Bear Lake
Daniel J.
Favero, Esq.
County of
Washington, Minnesota
Chapman and
Cutler LLP
111 West
Monroe Street
Chicago,
Illinois 60603
WBL Mort
cln.doc
1914001
TABLE OF
CONTENTS
SECTION
HEADING
PAGE
Parties
1
Recitals
1
Granting
Clauses
2
SECTION 1.
DEFINITIONS
8
SECTION 2.
GENERAL
COVENANTS AND WARRANTIES
15
Section 2.1.
Office for
Notices
15
Section 2.2.
Maintenance
of Existence, Rights
15
Section 2.3.
Negative
Covenants
16
Section 2.4.
Mergers and
Consolidations
20
Section 2.5.
Financial
Information and Reports
20
Section 2.6.
Notice of
Default
21
Section 2.7.
Mortgage
Title Insurance Policy
21
Section 2.8.
Payment of
Certain Taxes
21
Section 2.9.
Ownership of
Mortgaged Property
21
Section 2.10.
Further
Assurances
22
Section 2.11.
Payment of
Principal and Interest
22
Section 2.12.
Prepayment of
Note
22
Section 2.13.
Method and
Place of Payment of Principal and Interest
23
Section 2.14.
Maintenance
of Mortgaged Property, Other Liens, Compliance with Laws, Etc
23
Section 2.15.
Insurance
25
Section 2.16.
Payment of
Taxes and Other Charges
27
Section 2.17.
Limitation on
Liens
28
Section 2.18.
Assignment;
Obligations and Terms Respecting the Lease, the Other Leases and
the Lease Guaranties 30
Section 2.19.
Advances
34
Section 2.20.
Recordation
34
Section 2.21.
After-Acquired
Property
35
Section 2.22.
Environmental
Indemnity
35
Section 2.23.
Separate
Identity
35
Section 2.24.
General
Indemnity
36
Section 2.25.
No
Forfeiture
37
SECTION 3.
POSSESSION,
USE AND RELEASE OF PROPERTY
37
Section 3.1.
The
Company’s Right of Possession
37
Section 3.2.
Release of
Mortgaged Property - Event of Loss and Prepayment of
Note
37
-i-
Section 3.3.
Eminent
Domain
37
SECTION 4.
APPLICATION
OF INSURANCE AND CERTAIN OTHER MONEYS RECEIVED BY THE
MORTGAGEE
38
Section 4.1.
Insurance
Proceeds and Condemnation Awards
38
Section 4.2.
Title
Insurance
39
Section 4.3.
Investment of
Insurance Proceeds and Condemnation Awards or Compensation
40
Section 4.4.
Application
If Event of Default Exists
40
SECTION 5.
DEFAULTS
AND REMEDIES THEREFOR
40
Section 5.1.
Events of
Default
40
Section 5.2.
Remedies
42
Section 5.3.
Application
of Proceeds
46
Section 5.4.
Waiver of
Extension, Appraisement and Stay Laws
46
Section 5.5.
Costs and
Expenses of Foreclosure
47
Section 5.6.
Delay or
Omission Not a Waiver
47
Section 5.7.
Restoration
of Positions
48
Section 5.8.
Note to
Become Due upon Sale
48
SECTION 6.
MISCELLANEOUS
48
Section 6.1.
Successors
and Assigns
48
Section 6.2.
Severability
48
Section 6.3.
Addresses for
Notices and Demands
48
Section 6.4.
Headings and
Table of Contents
49
Section 6.5.
Release of
Mortgage
49
Section 6.6.
Counterparts
49
Section 6.7.
Successor
Mortgagee
49
Section 6.8.
Governing
Law
49
Section 6.9.
Time
49
Section
6.10.
Limitations
of Liability
50
Section 6.11.
Expenses,
Stamp Tax Indemnity
50
Section 6.12.
Cooperation
50
Section 6.13.
No Merger of
Estates
51
Section 6.14.
NAIC
Filing.
51
Section 6.15.
Commitment.
52
Section 6.16.
Local Law
Provisions
52
Signature
Page
56
ATTACHMENTS
TO MORTGAGE:
EXHIBIT
A
—
Legal
Description of Real Property
-ii-
MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE
FILING STATEMENT dated as of
August 28, 2009 (the “Mortgage” )
,
from
BLUE
RIDGE WMN, LLC (Organizational I.D.
No. 3334594-2), a limited liability company organized under
the laws of the State of Minnesota (the
“Company” ), having its principal office at
P.O. Box 707, Blakeslee, Pennsylvania 18610, to
WELLS
FARGO BANK NORTHWEST, N.A., as Trustee
under that
certain Pass-Through Trust Agreement and Declaration of Trust dated
as of August 28, 2009 (the “Mortgagee” ),
whose address is MAC: 1228-120, 299 South Main Street,
12th Floor, Salt Lake City, Utah 84111.
This Mortgage
is also a Security Agreement and financing statement under the
Uniform Commercial Code of the State of Minnesota and in compliance
therewith the following information is set forth:
1.
The names and
addresses of the Debtor and Secured Party are:
Debtor:
Blue Ridge
WMN, LLC
(Organizational I.D.
No. 3334594-2)
P.O.
Box
707
Blakeslee,
Pennsylvania 18610
Attention:
Eldon D. Dietterick
Secured
Party:
Wells Fargo
Bank Northwest, N.A. as Trustee
MAC:
1228-120
299 South
Main Street, 12th Floor
Salt Lake
City, Utah 84111
Attention:
Corporate Trust Services
2.
The property
covered by this Security Agreement and financing statement is
described in the Granting Clauses hereof.
3.
Some or all
of the fixtures, equipment and other property described herein are
or may become fixtures.
4.
The Debtor is
the record owner of the real estate described in Exhibit A attached
hereto and made a part hereof.
RECITALS
A.
The Company
and the Mortgagee have executed and delivered the Note Purchase
Agreement dated as of August 28, 2009 (the “Note
Purchase Agreement” ) providing for the commitment of the
Mortgagee to purchase the 6.90% Senior Secured Note, due
August 15, 2031 (the “Note” ) of the
Company in the principal amount of $4,340,000, to be dated the date
of issue, expressed to bear interest from the date of issue until
maturity at the rate of 6.90% per
-1-
annum and
will amortize as set forth in the amortization schedule attached
thereto. Interest on the Note will be computed on the basis
of a 360-day year of twelve 30-day months. The maturity date
of the Note and this Mortgage is August 15, 2031.
B.
The Company,
as successor-in-interest to Net Lease Development LLC, has leased
the Property described in Granting Clause First below to Walgreen
Co., a corporation organized under the laws of the State of
Illinois (the “Tenant” ), under and pursuant to
the terms of that certain Lease dated August 18, 2005 (such
Lease as it may heretofore or hereafter be amended, supplemented or
modified and any replacement thereof is herein referred to as the
“Lease” ) and is assigning all of its right,
title and interest in and to the Lease to the Mortgagee pursuant to
this Mortgage.
C.
The Note, as
may be amended from time to time, and all principal thereof,
premium, if any, and interest thereon and all additional amounts
and other sums at any time due and owing from, and required to be
paid by the Company under the terms of the Note, the Note Purchase
Agreement, this Mortgage and the other Operative Agreements (as
defined herein) are collectively hereinafter sometimes referred to
as the “Indebtedness Hereby Secured.”
D.
The Company
is duly authorized under all applicable provisions of law and its
Organizational Documents (as defined herein) to issue the Note, to
execute and deliver this Mortgage and to mortgage, convey and
assign the Mortgaged Property (as defined herein) to the Mortgagee
as security for the Indebtedness Hereby Secured and all action and
all consents, approvals and other authorizations and all other acts
and things necessary to make this Mortgage the valid, binding and
legal instrument for the security of the Indebtedness Hereby
Secured have been done and performed.
NOW
,
THEREFORE
,
THIS
MORTGAGE
WITNESSETH
: That
the Company, in consideration of the premises, the purchase and
acceptance of the Note by the Mortgagee and of the sum of Ten
Dollars received by the Company from the Mortgagee and other good
and valuable consideration, receipt whereof is hereby acknowledged,
and in order to secure the payment of the principal of, premium, if
any, and interest on the Note according to its tenor and effect,
and to secure the payment of all other Indebtedness Hereby Secured
and the performance and observance of all the covenants, agreements
and conditions contained in or incorporated by reference into the
Note, this Mortgage, the Note Purchase Agreement or the other
Operative Agreements, the Company does hereby grant, warrant,
mortgage, assign, pledge, sell, demise, bargain, convey, transfer,
set over and hypothecate unto the Mortgagee, its successors and
assigns, forever, WITH
POWER OF SALE , to the extent permitted
by law, and grants to the Mortgagee, its successors and assigns,
forever, a security interest in and to all and singular the
following described properties, rights, interest and privileges and
all of the Company’s estate, right, title and interest
therein, thereto and thereunder (all of which properties, rights,
interests and privileges hereby mortgaged, assigned, pledged and
hypothecated or intended so to be are hereinafter collectively
referred to as the “Mortgaged Property”
):
-2-
GRANTING
CLAUSE FIRST
THE PROPERTY
The parcel of
land in County of Washington, State of Minnesota, described in
Exhibit A attached hereto and made a part hereof, together
with the entire interest of the Company in and to all buildings,
structures, improvements and appurtenances now standing, or at any
time hereafter constructed or placed, upon such land, including all
right, title and interest of the Company, if any, in and to all
building material, building equipment and fixtures of every kind
and nature whatsoever on said land or in any building, structure or
improvement now or hereafter standing on said land which are
classified as fixtures under applicable law and which are used in
connection with the operation, maintenance or protection of said
buildings, structures and improvements as such (including, without
limitation, all boilers, air conditioning, ventilating, plumbing,
heating, lighting and electrical systems and apparatus, all
communications equipment and intercom systems and apparatus, all
sprinkler equipment and apparatus and all elevators and escalators)
and the reversion or reversions, remainder or remainders, in and to
said land, and together with the entire interest of the Company in
and to all and singular the tenements, hereditaments, easements,
rights of way, rights, privileges and appurtenances to said land,
belonging or in anywise appertaining thereto, including, without
limitation, the entire right, title and interest of the Company in,
to and under any streets, ways, alleys, gores or strips of land
adjoining said land, and all claims or demands whatsoever of the
Company either in law or in equity, in possession or expectancy,
of, in and to said land, it being the intention of the parties
hereto that, so far as may be permitted by law, all property of the
character hereinabove described, which is now owned or is hereafter
acquired by the Company and is affixed or attached or annexed to
said land, shall be and remain or become and constitute a portion
of said land and the security covered by and subject to the lien of
this Mortgage, together with all accessions, parts and
appurtenances appertaining or attached thereto and all
substitutions, renewals or replacements of and additions,
improvements, accessions and accumulations to any and all thereof,
and together with all rents, income, revenues, awards, issues and
profits thereof, and the present and continuing right to make claim
for, collect, receive and receipt for any and all of such rents,
income, revenues, awards, issues and profits arising therefrom or
in connection therewith (collectively, the
“Property” ).
GRANTING
CLAUSE SECOND
THE LEASE, THE OTHER LEASES, RENTS AND THE LEASE
GUARANTIES
The Lease,
the Other Leases (defined below) and all of the Company’s
estate, right, title, interest, claim and demand as landlord in, to
and under the Lease and the Other Leases, including all extensions
and renewals of the term thereof, and all existing or future
amendments, supplements or modifications of the Lease and the Other
Leases (and to any short memorandum form of the Lease and the Other
Leases executed for recording purposes), together with all rights,
powers, privileges, options and other benefits of the Company, if
any, in, to and under the Lease Guaranties (as defined herein) and
all rights, powers, privileges, options and other benefits of the
Company as landlord under the Lease and the Other Leases,
including, without limitation,
-3-
(a) the
immediate and continuing right (whether or not an Event of Default
under this Mortgage shall have occurred and be continuing) to
receive and collect all rents (whether as fixed rent, basic rent,
percentage rent, additional rent or otherwise), income, revenues,
issues, profits, insurance proceeds, condemnation awards,
bankruptcy claims, liquidated damages, purchase price proceeds and
other payments, tenders and security payable to or receivable by
the landlord under the Lease and the Other Leases; (b) if the
Tenant exercises any right, or shall be required, to purchase the
Mortgaged Property or the landlord’s interest therein, the
right and power (such power and right being coupled with an
interest) to execute and deliver as agent and attorney-in-fact of
the landlord under the Lease and the Other Leases, an appropriate
deed or other instruments of transfer necessary or appropriate for
the conveyance and transfer to the purchaser of the Mortgaged
Property or the portion thereof being so purchased, and all
interest of the landlord therein and to perform in the name and for
and on behalf of the landlord, as such agent and attorney-in-fact,
any and all other necessary or appropriate acts with respect to any
such purchase, conveyance and transfer; (c) the right to make
all waivers, consents and agreements; (d) the right to give
and receive copies of all notices and other instruments or
communications; (e) the right to take such action upon the
occurrence of an event of default or default under the Lease, the
Other Leases and the Lease Guaranties, including the commencement,
conduct and consummation of legal, administrative or other
proceedings, as shall be permitted by the Lease, the Other Leases,
the Lease Guaranties, or by law; and (f) the right to do any
and all other things whatsoever which the Company or any landlord
is or may be entitled to do under the Lease, the Other Leases and
the Lease Guaranties, or by law.
GRANTING
CLAUSE THIRD
CONDEMNATION AWARDS
All of the
right, title and interest of the Company in and to any award or
awards or settlements or payments heretofore made or hereafter to
be made by any municipal, county, state or federal authorities to
the present or any subsequent owners of the Mortgaged Property,
including without limitation any award or awards, or settlements or
payments, hereafter made resulting from (i) condemnation
proceedings or the taking of the Mortgaged Property, or any part
thereof, under the power of eminent domain; or (ii) the
alteration of grade or the location or the discontinuance of any
street adjoining the Mortgaged Property or any portion thereof, or
(iii) any other injury to or decrease in value of the
Mortgaged Property; and the Company hereby agrees to execute and
deliver from time to time such further instruments as may be
requested by the Mortgagee to confirm such assignment to Mortgagee
of any such award, damage, payment or other
compensation.
GRANTING
CLAUSE FOURTH
PERSONAL PROPERTY
All tangible
and intangible personal property now owned or at any time hereafter
acquired by the Company of every nature and description, and used
in any way in connection with the Mortgaged Property, or any other
portion of the same, including, without limitation, all
-4-
inventory;
goods; materials; supplies; equipment; furnishings; fixtures;
accounts; accounts receivable; chattel paper; documents;
instruments; investment property; money; bank accounts (including,
without limitation, the Escrow Reserves (as defined in the Escrow
and Servicing Agreement (as defined herein)) any accounts or
reserves held by Mortgagee or by the Escrow Agent (as defined
herein) under the terms of the Escrow and Servicing Agreement);
deposit accounts; security deposits; claims to rebates, refunds or
abatements of real estate taxes or any other taxes; contract
rights, plans and specifications; permits, licenses and general
intangibles; the rights of the Company under contracts, with
respect to the Mortgaged Property or any portion thereof; signs,
brochures, advertising and good will.
GRANTING
CLAUSE FIFTH
OTHER AND AFTER-ACQUIRED PROPERTY
Any and all
moneys and other property (including each amendment or supplement
to any and all instruments included in the Mortgaged Property)
which may from time to time, by delivery to the Mortgagee or by any
instrument, including this Mortgage, be subjected to the lien
hereof by the Company or by anyone on the behalf of the Company or
with the consent of the Company, or which may come into the
possession or be subject to the control of the Mortgagee pursuant
to this Mortgage, or pursuant to any instrument included in the
Mortgaged Property, it being the intention of the Company and the
Mortgagee and it being hereby agreed by them that all property
hereafter acquired by the Company and required to be subjected to
the lien of this Mortgage or intended so to be shall forthwith upon
the acquisition thereof by the Company be as fully embraced within
the lien of this Mortgage as if such property were now owned by the
Company and were specifically described in this Mortgage and
granted hereby or pursuant hereto.
GRANTING
CLAUSE SIXTH
PROCEEDS
All proceeds
of the conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquidated claims, including,
without limitation, all proceeds of insurance and condemnation
awards and payments and all products, additions, accessions,
substitutions and replacements of any of the foregoing.
SUBJECT
,
HOWEVER
, as to all
property or rights in property at any time subject to the lien
hereof (whether now owned or hereafter acquired), to the
following:
(a)
The agreement
of the parties hereto that any and all improvements, trade
fixtures, signs, furniture, furnishings, equipment, machinery or
other tangible or intangible personal property located on the
Mortgaged Property not owned by the Company, whether or not
classified as fixtures under applicable law, are expressly excluded
from the lien and security interest created by this Mortgage, and
that the same
-5-
shall in no
instance be deemed to be encompassed within the term
“Mortgaged Property” ; and
(b)
The Permitted
Encumbrances, as defined in Section 1 hereof; and
(c)
Excepted
Rights.
TO
HAVE
AND
TO
HOLD
the
Mortgaged Property unto the Mortgagee and its successors and
assigns, in fee simple title forever, with the purpose of securing
performance of each agreement, covenant and warranty of the Company
contained in the Operative Agreements and payment of all
Indebtedness Hereby Secured.
IN
TRUST
,
NEVERTHELESS
,
WITH
POWER
OF
SALE
( to
the extent permitted by law )
, upon the
terms and trusts herein set forth for the benefit and security of
all present and future holders of the Indebtedness Hereby Secured
in accordance with its terms and all other sums payable hereunder
or under the Note, and for the performance and observance of the
Note and this Mortgage, all as herein set forth.
PROVIDED
,
NEVERTHELESS
, and these
presents are upon the express condition that if the Company
performs the covenants herein contained and pays to the Mortgagee,
its successors or assigns, the full amount of all Indebtedness
Hereby Secured, the estate, right and interest of the Mortgagee in
the property hereby conveyed shall cease and this Mortgage shall
become null and void, but otherwise to remain in full force and
effect.
It is agreed
and understood by the parties hereto that:
1.
This Mortgage
is intended to and shall constitute security for the entire
Indebtedness Hereby Secured.
2.
Any part of
the security herein described, and any security described in any
other mortgage, assignment of lease or other instrument now or
hereafter given to secure the indebtedness which is secured by this
Mortgage, may be released by the Mortgagee without affecting the
lien hereof on the remainder.
3.
The Company
for itself and all who may claim through or under it waives any and
all right to have the property and estates comprising the Mortgaged
Property marshalled upon any foreclosure of the lien hereof, or to
have the Mortgaged Property hereunder and the property covered by
any other mortgage or assignment of lease securing the Note
marshalled upon any foreclosure of any of said mortgages or
assignments of leases, and agrees that any court having
jurisdiction to foreclose such lien may order the Mortgaged
Property sold as an entirety.
4.
Upon the
occurrence of an Event of Default hereunder, the Mortgagee has,
among other things, the right to foreclose on the Mortgaged
Property and dispose of the same. To the extent permitted by
law, the Mortgagee’s deed or other instrument of
-6-
conveyance,
transfer or release (which, if permitted by law, may be in the name
of the Mortgagee or as attorney for the Company and the Mortgagee
hereby is irrevocably appointed) shall be effective to convey and
transfer to the grantee an indefeasible title to the property
covered thereby, discharged of all rights of redemption by the
Company or any person claiming under it, and to bar forever all
claims by the Company or the said Mortgagee to the property covered
thereby and no grantee from the Mortgagee shall be under any duty
to inquire as to the authority of the Mortgagee to execute the
same, or to see to the application of the purchase
money.
5.
The
assignment made under Granting Clause Second and Section 2.18
hereof is executed as a present, unconditional and absolute
assignment and not merely as collateral security, and the execution
and delivery of this Mortgage shall not in any way impair or
diminish any obligations of the Company as landlord under the Lease
nor impair, affect or modify any of the terms and conditions of the
Note or the Note Purchase Agreement, nor shall any of such
obligations be imposed upon the Mortgagee, including but not
limited to collecting rentals or enforcing performance by the
Tenant. Without limiting the generality of the foregoing, the
Mortgagee shall not be obligated to perform or discharge, nor does
the Mortgagee hereby undertake to perform or discharge, any
obligation, duty or liability under the Lease, or under or by
reason of this Mortgage; and it is further understood and agreed
that this Mortgage shall not operate to place responsibility for
the control, care, management or repair of the Mortgaged Property
upon the Mortgagee, nor for the carrying out of any of the terms
and conditions of the Lease, nor shall it operate to make the
Mortgagee responsible or liable for any waste committed on the
Mortgaged Property by the Tenant or any other parties, or for any
dangerous or defective condition of the Mortgaged Property, or for
any negligence of the management, upkeep, or repair or control of
the Mortgaged Property resulting in loss or injury or death to any
tenant, licensee, employee or stranger. The Mortgagee may, at
its option, although it shall not be obligated to do so, after
giving written notice to the Tenant and the Company, perform any
Lease covenant for and on behalf of the Company and may recover any
money advanced, for any such purpose from the Company on demand,
with interest at the Default Rate (as defined herein) (or at the
maximum rate permitted by applicable law, whichever is less) from
date of advancement. Upon the payment of the principal of
(and premium, if any) and all interest on the Note and of all other
sums payable on the Note or under the Note Purchase Agreement or
this Mortgage or any other Operative Agreement and the performance
and observance of the provisions thereof, this Mortgage shall cease
and terminate and all the estate, right, title, interest, claim and
demand of the Company under the Lease in and to the above-described
assigned property shall revert to the Company under the Lease, and
the Mortgagee shall at the request of the Company deliver to the
Company an instrument cancelling the assignment of Lease set forth
in this Mortgage and reassigning the above-described assigned
property to the Company.
6.
The Company
does hereby irrevocably constitute and appoint the Mortgagee, its
true and lawful attorney with full power of substitution, for it
and in its name, place and stead, to ask, demand, collect, receive,
receipt for, sue for, compound
-7-
and give
acceptance for any and all rents, income and other sums which are
assigned under the Granting Clauses of this Mortgage with full
power to sue for, settle, adjust or compromise any claim thereunder
as surely as the Company could itself do and to endorse the name of
the Company on all commercial paper given in payment or in part
payment thereof, and in its discretion to file any claim or take
any other action or proceedings either in its own name or in the
name of the Company or otherwise, which the Mortgagee may deem
necessary or appropriate to protect and preserve the right, title
and interest of the Mortgagee in and to such rents and other sums
and the security intended to be afforded by this
Mortgage.
SECTION 1.
DEFINITIONS.
The following
terms shall have the following meanings for all purposes of this
Mortgage (any capitalized terms not otherwise defined herein shall
have the meanings set forth therefor in the Note Purchase
Agreement):
“Affiliate”
of any
specified Person, shall mean any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such specified Person, and any immediate family
member of such specified Person and their Affiliates. For the
purposes of this definition, “control” when used
with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the
foregoing.
“Bankruptcy
Claims” is defined in Section
2.18(a) of this Mortgage.
“Bankruptcy
Code” is defined in Section
2.18(a) of this Mortgage.
“Closing
Date” is defined in the Note
Purchase Agreement.
“Company”
shall mean
not only Blue Ridge WMN, LLC, but also its successors and
assigns.
“Default”
shall mean
any event which would constitute an Event of Default if any
requirement in connection therewith for the giving of notice, or
the lapse of time, or the happening of any further condition, event
or action had been satisfied.
“Default
Rate” shall mean 8.90% per
annum.
“Environmental
Legal Requirement” shall mean any
applicable local, state or federal law, statute, ordinance, rule or
regulation relating to public health, safety or the
environment,
-8-
including, without
limitation, relating to releases, discharges or emissions to air,
water, land or groundwater, to the withdrawal or use of
groundwater, to the use and handling of polychlorinated biphenyls
or asbestos, to the disposal, transportation, treatment, storage or
management of solid or hazardous wastes or to exposure to toxic or
hazardous materials, to the handling, transportation, discharge or
release of gaseous or liquid substances and any regulation, order,
notice or demand issued pursuant to such law, statute, ordinance,
rule or regulation, in each case applicable to the property of the
Company and its Subsidiaries or the operation, construction or
modification of any thereof, including without limitation the
following: the Clean Air Act, the Federal Water Pollution Control
Act, the Safe Drinking Water Act, the Toxic Substances Control Act,
the Comprehensive Environmental Response Compensation and Liability
Act as amended by the Superfund Amendments and Reauthorization Act
of 1986, the Resource Conservation and Recovery Act as amended by
the Solid and Hazardous Waste amendments of 1984, the Occupational
Safety and Health Act, the Emergency Planning and Community
Right-to-Know Act of 1986, the Hazardous Materials Transportation
Act, the Solid Waste Disposal Act, all as amended, and any local,
state or federal laws, statutes, ordinances, rules or regulations
addressing similar matters, and any local, state or federal law,
statute, ordinance, rule or regulation providing for financial
responsibility for cleanup or other actions with respect to the
release or threatened release of hazardous substances and any
local, state or federal nuisance law, statute, ordinance, rule or
regulation.
“Escrow
Agent” shall mean RBC Capital
Advisors, Inc., as Escrow Agent under the Escrow and Servicing
Agreement, and its successors and assigns.
“Escrow and
Servicing Agreement” shall mean that certain
Escrow and Servicing Agreement dated as of the date hereof among
the Company, the Mortgagee and the Escrow Agent.
“Escrow
Shortfall” is defined in the Escrow
and Servicing Agreement.
“Event of
Default” shall mean any events
specified in Section 5.1 hereof including all notice, cure and
grace periods.
“Event of
Loss” with respect to the
Mortgaged Property shall mean any casualty or condemnation
described in the Lease.
“Excepted
Rights” shall mean the
Company’s right prior to the occurrence of a Default or an
Event of Default, but not to Mortgagee’s exclusion
(1) to receive from the Tenant certificates and other
documents and information that the Tenant is required to give or
furnish to the Company in accordance with the Lease, ( 2) to inspect the Mortgaged Property and all
records relating thereto, and ( 3) to
demand performance or observance by the Tenant under the Lease of
the applicable terms, conditions and agreements of the Lease as
allowed by law, equity, or the Lease; provided,
however, the Company may not (X) accelerate payment of
Rent, or (Y) give any notice, sue or pursue any remedy or take
any action under the Lease that might have the effect of (A) terminating the Lease, (B) dispossessing the Tenant, (C) declaring the Lease forfeited or
terminated, (D) reducing any of the
Tenant's obligations under the Lease, or
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(E) adversely
affecting the rights of the Company as landlord under the Lease,
the value of the Mortgaged Property or the rights or interests of
Mortgagee under the Operative Agreements, without in each instance
Mortgagee’s prior written consent which Mortgagee may grant
or withhold in its sole discretion.
“Existing
Guarantors” shall mean the owners of
the Company acting as guarantors under the Indemnity and Guaranty
Agreement.
“Existing
Indemnitors” shall mean the owners of
the Company acting as indemnitors under the Hazardous Material
Indemnity Agreement.
“Existing
Owner” is defined in Section
2.3(h) of this Mortgage.
“Hazardous
Material” shall mean any hazardous,
toxic or harmful chemical, substance, waste, material, byproduct,
pollutant, contaminant, compound or product, including without
limitation, asbestos, polychlorinated byphenyls, petroleum products
(including crude oil or any fraction thereof), flammable
explosives, radioactive materials, mold, mildew, infectious
substances or raw materials which include hazardous constituents
and any other substance or material the exposure, use, disposal or
handling of which is regulated by any Environmental Legal
Requirement.
“Hazardous Material
Indemnity Agreement” shall mean that certain
Hazardous Material Indemnity Agreement dated as of August 28,
2009 from the Existing Indemnitors and the Company in favor of the
Mortgagee.
“Improvements”
means all
buildings, structures, fixtures, additions, enlargements,
extensions, modifications, repairs, replacements, improvements and
appurtenances now standing, or at any time hereafter constructed or
placed, upon the land described on Exhibit A
hereto.
“Indebtedness”
of any Person
shall mean, without duplication (a) all obligations of such
Person for borrowed money or which have been incurred in connection
with the acquisition of property or assets, (b) rents payable
by such Person under all leases (whether or not capitalized on the
books of such Person in accordance with generally accepted
accounting principles) having a fixed term of one year or more from
the original date or which are renewable or extendible by the
lessee for a period or periods aggregating one year or more from
the original date, (c) all indebtedness, obligations and
liabilities secured by any lien existing on property owned by such
Person subject to such lien, whether or not such indebtedness,
obligations or liabilities have been assumed, and (d) all
guarantees (whether by discount or otherwise), endorsements (other
than for collection or deposit in the ordinary course of business)
and other contingent obligations to purchase, or otherwise acquire,
or become liable upon or in respect of, the indebtedness,
obligations or liabilities of any Person or other entity whether or
not reflected in the balance sheet of such Person.
“Indebtedness
Hereby Secured” is defined in Recital C
hereto.
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“Indemnified
Liabilities” is defined in
Section 2.24 of this Mortgage.
“Indemnitor”
shall mean
any Existing Indemnitor or any Successor Indemnitor.
“Indemnity and
Guaranty Agreement” shall mean that certain
Indemnity and Guaranty Agreement dated as of August 28, 2009
from the Existing Guarantors in favor of the Mortgagee.
“Investment
Grade” shall mean a rating of
“BBB” or better, as rated by Standard &
Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc. or a rating of “Baa” or better, as
rated by Moody’s Investor Service, Inc.
“Lease”
is defined in
Recital B hereto.
“Lease
Assignment” shall mean the assignment
of the Lease, the Other Leases, the Lease Guaranties and Rents set
forth in Granting Clause Second and Section 2.18 of this
Mortgage.
“Lease
Guarantor” is defined in Section
2.18(a) of this Mortgage.
“Lease
Guaranty” is defined in Section
2.18(a) of this Mortgage.
“Loan”
is defined in
Section 6.12 of this Mortgage.
“Make-Whole
Amount” means, with respect to
the Note, an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the
Called Principal of such Note over the amount of such Called
Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following
meanings:
“Called
Principal” means, with respect to
the Note, the principal of such Note that is to be prepaid pursuant
to Section 2.12 of this Mortgage or has become or is declared
to be immediately due and payable pursuant to Section 5.2 of
this Mortgage, as the context requires.
“Discounted
Value” means, with respect to
the Called Principal of the Note, the amount obtained by
discounting all Remaining Scheduled Payments with respect to such
Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount
factor (applied on the same periodic basis as that on which
interest on the Note is payable) equal to the Reinvestment Yield
with respect to such Called Principal.
“Reinvestment
Yield” means, with respect to
the Called Principal of the Note, 0.50% over the yield to maturity
implied by (i) the yields reported, as of 10:00 A.M.
(New York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on the
display designated as “Page PX-1” on the Bloomberg
Financial Markets (or such other display as may replace Page PX-1
on the Bloomberg Financial Markets) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such
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Settlement
Date, or (ii) if such yields are not reported as of such time
or the yields reported as of such time are not ascertainable, the
Treasury Constant Maturity Series Yields reported, for the latest
day for which such yields have been so reported as of the second
Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519)
(or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the
Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield will be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to
bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the duration closest to
and greater than the Remaining Average Life and (2) the
actively traded U.S. Treasury security with the duration closest to
and less than the Remaining Average Life.
“Remaining Average
Life” means, with respect to
any Called Principal, the number of years (calculated to the
nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by
(b) the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with respect to
such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
“Remaining
Scheduled Payments” means, with respect to
the Called Principal of the Note, all payments of such Called
Principal and interest thereon that would be due after the
Settlement Date with respect to such Called Principal if no payment
of such Called Principal were made prior to its scheduled due date,
provided that if such Settlement Date is not a date on which
interest payments are due to be made under the terms of the Note,
then the amount of the next succeeding scheduled interest payment
will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date
pursuant to Section 2.12 of this Mortgage or Section 5.2 of
this Mortgage.
“Settlement
Date” means, with respect to
the Called Principal of the Note, the date on which such Called
Principal is to be prepaid pursuant to Section 2.12 of this
Mortgage or has become or is declared to be immediately due and
payable pursuant to Section 5.2 of this Mortgage, as the
context requires.
“Management
Agreement” is defined in
Section 2.14(e) of this Mortgage.
“Maturity
Date” shall mean
August 15, 2031.
“Mortgaged
Property” is defined in the
Recitals hereto.
“Mortgagee”
shall mean
Wells Fargo Bank Northwest, N.A. as Trustee under that certain
Pass-Through Trust Agreement and Declaration of Trust dated as of
August 28, 2009 and its successors and assigns.
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“Non-Recourse
Person” is defined in Section
6.10 of this Mortgage.
“Note”
is defined in
Recital A hereto.
“Note Purchase
Agreement” is defined in Recital A
hereto.
“Operative
Agreements” shall mean,
collectively, the Note Purchase Agreement, the Lease, this
Mortgage, the Hazardous Material Indemnity Agreement, the Indemnity
and Guaranty Agreement, the SNDA Agreement, the Escrow and
Servicing Agreement, and the Note.
“Organizational
Documents” of any entity shall mean
(a) in the case of a corporation, the articles or certificate
of incorporation (or the equivalent of such items under state law)
and the by-laws of such corporation, (b) in the case of a
limited liability company, the certificate or articles of existence
or formation and the operating agreement of such limited liability
company, (c) in the case of a limited partnership, the
certificate of formation and limited partnership agreement of such
limited partnership and the Organizational Documents of the general
partner of such limited partnership, (d) in the case of a
trust, the certificate of formation (if applicable) and the trust
agreement for such trust, and (e) any equivalent documents, to
the foregoing under the State law where such entity was organized
or formed.
“Other
Leases” is defined in
Section 2.18(a) of this Mortgage.
“Permitted
Encumbrances” shall mean the liens
described in clauses (a) through (i) of Section 2.17 of
this Mortgage.
“Person”
shall mean an
individual, partnership, limited liability company, corporation,
trust or unincorporated organization.
“Personal
Property” shall mean the personal
property described in Granting Clause Fourth of this
Mortgage.
“Rents”
is defined in
Section 2.18(a) of this Mortgage.
“Restoration”
is defined in
Section 4.1 of this Mortgage.
“Restoration
Funds” is defined in Section 4.1
of this Mortgage.
“Secondary Market
Transaction” is defined in Section
6.12 of this Mortgage.
“Security”
shall have
the same meaning as in Section 2(1) of the Securities Act of
1933, as amended.
“SNDA
Agreement” shall mean the
Subordination, Non-Disturbance and Attornment Agreement among the
Mortgagee, the Tenant and the Company.
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“Subsidiary”
shall mean
any Person of which more than 50% (by number of votes) of the
Voting Interest is owned and controlled by the Company and/or one
or more Persons which are Subsidiaries of the Company.
“Successor
Company” is defined in Section
2.3(g) of this Mortgage.
“Successor
Indemnitor” is defined in Section
2.3(g) of this Mortgage.
“Successor
Owner” is defined in Section
2.3(h) of this Mortgage.
“Taxes”
is defined in
Section 2.16 of this Mortgage.
“Tenant”
shall mean
not only Walgreen Co., an Illinois corporation, but also its
successors and assigns.
“Uniform Commercial
Code” shall mean the Uniform
Commercial Code as in effect in the State of Minnesota, as
amended.
“Voting
Interest” shall mean Securities or
equity ownership interest of any class or classes of a Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the corporate directors (or Persons
performing similar functions).
SECTION 2.
GENERAL
COVENANTS AND WARRANTIES.
From and
after the Closing Date (as defined in the Note Purchase Agreement)
and continuing so long as the Indebtedness Hereby Secured, remains
unpaid, the Company covenants that:
Section 2.1
Office for
Notices . The Company will
keep an office at P.O. Box 707, Blakeslee, Pennsylvania 18610 where
notices, presentations and/or demands to or upon the Company in
respect of said Note or this Mortgage may be given or made, until
such time as the Company shall so notify the Mortgagee in writing
of any change of location of such office.
Section 2.2.
Maintenance of Existence,
Rights . The Company will
at all times preserve and keep in full force and effect its
existence and will obtain and maintain in full force and effect all
franchises, privileges, rights, licenses and permits and all other
consents, approvals and authorizations of any governmental
authority necessary for the ownership and efficient operation and
maintenance of its business and property which failure to obtain
and maintain would materially and adversely affect the properties,
business, prospects, profits or condition of the
Company.
Section 2.3.
Negative
Covenants. The Company will
not:
(a)
engage in any
business other than the ownership and development of the Mortgaged
Property, the leasing of the Mortgaged Property to the Tenant and
the
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financing
thereof through the issuance of the Note, as expressly contemplated
by the Operative Agreements to which the Company is a
party;
(b)
be or become
liable in respect of any guaranty, except for any guaranties that
are part of, or permitted by the Operative Agreements;
(c)
incur any
Indebtedness other than (i) Indebtedness Hereby Secured,
(ii) Taxes not yet due and payable and items being contested
pursuant to Section 2.16(b), (iii) trade payables
incurred in the ordinary course of business not exceeding $500.00
paid within sixty (60) days of date incurred, and (iv)
obligations under the Lease;
(d)
make, or
permit to remain outstanding, any investment, loan or advance to,
or own or acquire any stock or Securities of, any Person except
that the Company may make any investment, loan or advance required
to be made to satisfy its obligations under the Operative
Agreements to which the Company is a party;
(e)
pay or
declare any dividend, or make any other distribution if, after
giving effect thereto, a Default or Event of Default would
exist;
(f)
enter into
any lease of any of the Mortgaged Property, whether as lessor or as
lessee, other than the Lease or any sublease permitted under the
Lease;
(g)
sell,
transfer, exchange or otherwise dispose of the Mortgaged Property
or any part or portion thereof, except as expressly permitted by
this Mortgage, provided, however, that in addition to sales
and/or transfers permitted by this Mortgage, one time prior to the
maturity date of the Note the Company shall have the right to sell
the entire Mortgaged Property to another entity (such entity is
herein referred to as the “Successor Company” );
provided, further, that in connection with any such transfer
sale, the following conditions are met:
(i)
the Successor
Company shall be a single purpose entity (the Organizational
Documents of which shall contain provisions acceptable to the
Mortgagee and similar to those required by the Mortgagee to be
added to the Company’s Organizational Documents in connection
with the issuance of the Note) and shall obtain all required
governmental consents, approvals and authorizations;
(ii)
after giving
effect to the sale, the Successor Company shall be in compliance
with this Mortgage and no Default or Event of Default shall have
occurred which shall then be continuing;
(iii)
the Successor
Company shall assume all rights, duties and obligations of the
Company under the Operative Agreements arising after the date of
such assumption;
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(iv)
the Successor
Company shall have delivered to the Mortgagee an opinion of its
counsel which is satisfactory in form to the Mortgagee covering the
due authorization, execution, delivery and enforceability of
documents entered into by the Successor Company to comply with the
foregoing conditions of this paragraph (g) and covering such
other related matters as the Mortgagee or special counsel to the
beneficial holder of the Note may reasonably require;
(v)
the Successor
Company and the beneficial owner or owners of equity interests in
the Successor Company (the “Successor
Indemnitors” ) shall have entered into and delivered to
the Mortgagee a Hazardous Material Indemnity Agreement and an
Indemnity and Guaranty Agreement as applicable, in the same form as
such documents delivered to the Mortgagee on the Closing Date and
the reputation, creditworthiness and experience of the Successor
Indemnitors in real estate management and development shall be
reasonably acceptable to the Mortgagee; provided, however,
it shall not be unreasonable for the Mortgagee to reject a
Successor Indemnitor that has a net worth less than the net worth
of the Existing Indemnitor. Upon the execution and delivery of the
Indemnity and Guaranty Agreement and the Hazardous Material
Indemnity Agreement by the Successor Company and the Successor
Indemnitors, as applicable, to the Mortgagee, the Company, the
Existing Indemnitors and the Existing Guarantors shall be released
from any future liability accruing from and after the effective
date thereof;
(vi)
all filings,
recordings and title insurance date downs or endorsements which are
deemed necessary by the Mortgagee or special counsel to the
beneficial holder of the Note shall have been made in appropriate
public offices;
(vii)
the Company
shall (A) pay to the Mortgagee a fee equal to 1.00% of the
then outstanding principal amount of the Note ( provided,
however, no such fee shall be due if the Mortgaged Property is
sold to family members or trusts for estate planning purposes) and
(B) pay all of the reasonable legal fees and expenses of the
special counsel representing the beneficial holder of the Note in
connection with the sale of the Mortgaged Property to the Successor
Company; and
(viii)
the Company
shall deliver to the Mortgagee a copy of a waiver executed by the
Tenant pursuant to which the Tenant waives any right of first
refusal, right of first offer or other purchase option (if any)
vested in the Tenant pursuant to the terms of the Lease or
otherwise.
Notwithstanding anything
to the contrary contained herein or in any other Operative
Agreement, the Company shall not be permitted to sell the Mortgaged
Property to the Tenant without the prior written consent of the
Mortgagee.
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If the
Mortgaged Property is sold in accordance with the terms of this
Section 2.3(g), then upon satisfaction of the conditions set
forth therein, the Company shall be released from all liability
under this Mortgage and the other Operative Agreements, except for
obligations accruing prior to the date of such sale;
(h)
permit any
direct or indirect holder or owner of an equity, ownership,
membership, partnership, or voting interest in the Company (an
“Existing Owner” ) to sell, transfer, exchange
or otherwise dispose of such interest in any transaction or series
of transactions that would result in a different Person or entity
holding or owning, directly or indirectly, a controlling interest
in the Company than held or owned such controlling interest on the
Closing Date (each a “Transfer” ) (nothing
herein shall be deemed a limitation on the transfer, directly or
indirectly, of non-controlling ownership interests in the Company
so long as the same Person or entity holding or owning a
controlling interest in the Company on the Closing Date continues
to hold or own such controlling interest after giving effect to
such transfer); provided, however, that one time prior to
the maturity date of the Note the holder or holders of a
controlling interest in the Company shall have the right to sell
such controlling interest to another Person or entity (the
“Successor Owner” ); provided that in
connection with such sale, the following conditions are
met:
(i)
after giving
effect to the sale, the Company shall be in compliance with this
Mortgage and no Default or Event of Default shall have occurred
which shall then be continuing;
(ii)
the Successor
Owner shall have assumed the obligations of the Existing Guarantors
and Existing Indemnitors under, or entered into agreements in the
same form as, the Indemnity and Guaranty Agreement and the
Hazardous Material Indemnity Agreement delivered on the Closing
Date;
(iii)
the
reputation, creditworthiness and experience of such Successor Owner
in real estate management and development shall be reasonably
acceptable to the Mortgagee; provided, however, it shall not
be unreasonable for the Mortgagee to reject a Successor Owner that
has a net worth less than the net worth of the Existing Indemnitor;
and
(iv)
the Successor
Owner shall (A) pay to the Mortgagee a fee equal to 1.00% of the
then outstanding principal amount of the Note ( provided,
however, no such fee shall be due if the Mortgaged Property is
sold to family members or trusts for estate planning purposes) and
(B) pay all of the reasonable legal fees and expenses of the
special counsel representing the beneficial holder of the Note in
connection with the sale of such interest to the Successor
Owner.
If a
controlling interest in the Company is sold in accordance with the
terms of this Section 2.3(h), then upon satisfaction of the
conditions set forth therein, the Existing
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Owner shall
be released from all liability under this Mortgage and the other
Operative Agreements, except for obligations accruing prior to the
date of such sale;
(i)
a Transfer
within the meaning of Section 2.3(h) shall not include
(i) transfers of ownership interests in the Company made by
devise or descent or by operation of law upon the death of a member
of the Company, subject however, to all the following
requirements: (A) written notice of any transfer
under this Section 2.3(i) whether by will, trust or other
written instrument, operation of law or otherwise, is provided to
Mortgagee, together with copies of such documents relating to the
transfer as Mortgagee may reasonably request, (B) control over
the management and operation of the Mortgaged Property
thereafter is assumed by persons who are acceptable in all
respects to Mortgagee in its reasonable discretion,
(C) no such transfer will release the respective estate from
any liability as an Existing Indemnitor, and (D) no such
transfer, death or other event has any adverse effect either on the
bankruptcy-remote status of the Company or on the status of the
Company as a continuing legal entity liable for the payment of the
Indebtedness Hereby Secured and the performance of all other
obligations secured hereby;
(j)
institute
proceedings to be adjudicated bankrupt or insolvent, or consent to
the institution of bankruptcy or insolvency proceedings against it,
or file a petition under state law relating to bankruptcy or
insolvency, or consent to the appointment of a receiver,
liquidator, assignee, trustee or sequestrator (or other similar
official) of the Company, or a substantial part of its property, or
make any assignment for the benefit of creditors, or, except as
required by law, admit in writing its inability to pay its debts
generally as they become due, or take any company action in
furtherance of any such action;
(k)
amend or
modify the Organizational Documents of the Company;
(l)
create,
organize or establish any Subsidiary;
(m)
conduct its
business in any manner that would likely result in the substantive
consolidation of the Company with its member or members in
bankruptcy; or
(n)
violate, or
permit any holder of an equity interest in the Company to violate,
the shopping center use restrictions outlined in Section 8 of
the Lease.
Section 2.4.
Mergers
and Consolidations. The Company will not
consolidate with or be a party to a merger with any other
Person.
Section 2.5.
Financial
Information and Reports . The
Company will keep proper books of record and account in which full,
true and correct entries will be made of all dealings or
transactions of or in relation to the business and affairs of the
Company in accordance with the accounting basis used for income tax
purposes and will furnish to the Mortgagee:
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(a)
As soon as
available and in any event within one hundred twenty (120) days
after the close of each fiscal year of the Company, copies
of:
(i)
a balance
sheet of the Company as of the close of such fiscal year,
and
(ii)
a statement
of operating income, retained earnings and cash flows of the
Company for such fiscal year,
in each case
setting forth in comparative form the figures for the preceding
fiscal year, all in reasonable detail and accompanied by a
certificate of an officer of the Company to the effect that such
financial statements have been prepared in accordance with the
accounting basis used for tax purposes, are complete and correct
and present fairly, in all material respects, the financial
condition of the Company; provided, that if the financial
statements required by this paragraph (a) shall be prepared by
a firm of independent public accountants, then in lieu of a
statement certified by an officer of the Company, copies of such
statements shall be furnished to the Mortgagee at the times
required by the preceding provisions of this
paragraph (a);
(b)
Within the
periods provided in paragraph (a) above, the written statement
of the Company, signed by an authorized officer of the Company,
stating whether, to the best of his knowledge, there existed as of
the date of such financial statements and on the date of the
certificate any Default or Event of Default under this Mortgage,
and specifying the nature and period of existence thereof and the
action the Company is taking and proposes to take with respect
thereto; and
(c)
Such
additional information as the Mortgagee may reasonably request
concerning the Company.
The Company
will permit the Mortgagee (or such Persons as the Mortgagee may
designate) to visit and inspect the Mortgaged Property under the
Company’s guidance, to examine all of its books of account,
records, reports and other papers, to make copies and extracts
therefrom and to discuss its affairs, finances and accounts with
its officers, agents and representatives, all at such reasonable
times and as often as any such holder may reasonably desire, in
each case subject to the terms and conditions set forth in the
Lease, provided, that at any time when an Event of Default
shall have occurred and be then continuing, such visit and
inspection shall be at the expense of the Company.
Section 2.6.
Notice of
Default. The Company will,
immediately upon an officer or member of the Company acquiring
actual knowledge of a Default or Event or Default, furnish a
written notice to the Mortgagee specifying the nature and period of
existence of such condition or event and what action the Company is
taking or proposes to take with respect thereto.
Section 2.7.
Mortgage
Title Insurance Policy. The Company
will, within sixty (60) days following the Closing Date, at
its own cost and expense, procure and deliver to the
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Mortgagee or
its counsel an ALTA Policy issued by a title insurance company
acceptable to the Mortgagee which policy shall conform to the
commitment or pro forma, as applicable, for title insurance issued
to the Beneficiary in the form attached as an exhibit to the Escrow
Instruction Letter delivered at Closing which policy shall be not
less than the principal amount of the Note issued and delivered on
the Closing Date covering the Mortgaged Property showing marketable
fee title to the Mortgaged Property to be in the Company, subject
only to Permitted Encumbrances, which policy shall also insure the
Mortgagee against all loss or damage sustained by reason of this
Mortgage not being a first and paramount lien at the date of such
policy upon title to the Mortgaged Property and which policy shall
show recordation of this Mortgage and the SNDA Agreement, shall be
dated the Closing Date and shall otherwise be in form and substance
satisfactory to the Mortgagee.
Section 2.8.
Payment of
Certain Taxes . The Company
covenants and agrees to pay all taxes, assessments and governmental
charges or levies imposed upon this Mortgage or the Note or any
other Indebtedness Hereby Secured.
Section 2.9.
Ownership
of Mortgaged Property . The Company
covenants and warrants that it has good and marketable title to the
Mortgaged Property hereinbefore conveyed to the Mortgagee free and
clear of all liens, charges and encumbrances whatever except
Permitted Encumbrances, and the Company has full right, power and
authority to grant, warrant, mortgage, pledge, assign, sell,
demise, bargain, hypothecate, convey, grant a security interest in,
transfer and set over the same to the Mortgagee for the uses and
purposes in this Mortgage set forth; and the Company will warrant
and defend the title to the Mortgaged Property against all claims
and demands whatsoever. Without limiting the foregoing, the
Company represents and warrants that the restrictions, exceptions,
reservations, limitations, interests and other matters, if any, set
forth immediately following the specific descriptions of the
parcels of land in Exhibit A attached hereto, together with all
other restrictions, exceptions, reservations, limitations,
interests and other matters, if any, existing on the date of
execution and delivery of this Mortgage, do not in the aggregate
impair the value of the Mortgaged Property or adversely affect the
utility, structural integrity or beneficial enjoyment of the
Mortgaged Property for the uses to which the Mortgaged Property is
being put.
Section 2.10.
Further
Assurances . The Company will,
at its own expense, do, execute, acknowledge and deliver all and
every further act, deed, conveyance, transfer and assurance
necessary or proper for the better assuring, conveying, assigning
and confirming unto the Mortgagee all of the Mortgaged Property, or
property intended so to be, whether now owned or hereafter
acquired.
Section 2.11.
Payment of
Principal and Interest . The Company will
duly and punctually pay the principal of, and premium of, if any,
and interest on the Note secured hereby according to the terms
thereof.
Section 2.12.
Prepayment
of Note . No prepayment of
the Note may be made except to the extent and in the manner
expressly permitted by this Section 2.12.
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(a)
Required
Prepayment without Make-Whole Amount in the Event of Casualty or
Condemnation . In the event of a
casualty or condemnation of all or a portion of the Mortgaged
Property which results in a termination of the Lease, the Company
shall prepay the Note in whole, but not in part, by payment of the
principal amount of the Note then outstanding, together with
accrued interest thereon to the date of such prepayment, which
prepayment shall be made taking into account the proceeds paid
under any insurance policies carried pursuant to this Mortgage, but
without any Make-Whole Amount.
(b)
Optional
Prepayment with Make-Whole Amount. The Company shall have
the privilege, at any time and from time to time, of prepaying the
outstanding Note, in whole but not in part by payment of the
principal amount of the Note, and accrued interest thereon to the
date of such prepayment, together with a premium equal to the
Make-Whole Amount, determined as of two (2) business days prior to
the date of such prepayment pursuant to this
Section 2.12(b).
(c)
Notice of
Prepayments.
The Company
will give notice of any intended prepayment of the Note pursuant to
Section 2.12(b) to the Mortgagee not less than thirty (30)
days nor more than sixty (60) days before the date fixed for such
prepayment specifying (i) such date, (ii) the principal
amount of the Note to be prepaid on such date, (iii) that a
premium may be payable, (iv) the date as of which such premium
will be calculated, (v) the estimated premium, and
(vi) the accrued interest applicable to the prepayment.
Such notice shall be accompanied by a certificate addressed
to the Mortgagee from the president or a senior financial officer
of the Company as to the estimated premium due with respect to the
Note in connection with such prepayment (calculated as if the date
of such notice were the date of the prepayment), setting forth the
details of such computation. Notice of prepayment having been
so given, the principal amount of the Note specified in such
notice, together with accrued interest thereon and the premium, if
any, payable with respect thereto shall become due and payable on
the prepayment date specified in said notice. Not later than
two (2) business days prior to the prepayment date specified in
such notice, the Company shall provide the Mortgagee written notice
of the premium, if any, payable in connection with such prepayment
and, whether or not any premium is payable, a reasonably detailed
computation of the Make-Whole Amount (using such method of
computation approved by the Beneficiary as provided above) due with
respect to the Note in connection with such prepayment, which
computation shall be certified to the Mortgagee by the president or
a senior officer of the Company.
Section 2.13.
Method and
Place of Payment of Principal and Interest . Anything in the
Note or this Mortgage to the contrary notwithstanding, the Company
will promptly and punctually pay, or cause the Escrow Agent to pay,
the principal of the Note and premium, if any, and interest
thereon, without any presentment thereof, at the address set forth
for payment on Schedule I attached to the Escrow and Servicing
Agreement (or to any nominee designated by the Mortgagee) as payee,
at its address specified in writing to, and received by, the
Company at least ten (10) days prior to the date fixed for such
payment) and if a bank account is designated for the Mortgagee in
said Schedule I, payments will be made in immediately
available funds to such bank account, or payments will be made in
such other manner or such other place within the continental limits
of the United States as the Mortgagee may reasonably direct in
writing. If the Mortgagee shall sell or transfer the Note,
the Mortgagee will notify the Company of such action
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and of the
name and address of the transferee of the Note and the Mortgagee
will, prior to the delivery of the Note, make a notat
