EXHIBIT 10.108
Return recorded instrument to:
William R. Weir
Porter Wright Morris & Arthur, LLP
925 Euclid Avenue, Suite 1700
Cleveland, Ohio
44115
MORTGAGE WITH POWER OF SALE, SECURITY AGREEMENT
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AND FINANCING STATEMENT
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A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE
MAY ALLOW
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MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING
TO COURT IN A
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FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS
MORTGAGE.
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THIS
MORTGAGE WITH POWER OF SALE, SECURITY AGREEMENT AND FINANCING
STATEMENT (this "Mortgage") is made as of the 14th day of March,
2006, by Tulsa
Promenade, LLC, a Delaware limited liability company,
("Mortgagor"), in favor of
Charter One Bank, N.A., a national banking association with an
address of 1215
Superior Avenue, Cleveland, Ohio 44114 ("Mortgagee").
WHEREAS, Mortgagee has agreed to make a loan to Mortgagor in the
principal
amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the
"Loan") and
Mortgagor has executed that certain promissory note of even date
herewith in the
amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the
"Note") having
a final maturity on ___________, 2009, with interest thereon
according to the
terms of the Loan Agreement (defined below) and the Note; and
WHEREAS, pursuant to that certain Loan Agreement of even date
herewith (the
"Loan Agreement") executed in conjunction with the Note, and
certain limitations
set forth in the Loan Agreement regarding the maximum amount
available to be
disbursed under the Note, Mortgagee has made or will make an
initial
disbursement in the amount of Thirty-Five Million and No/100
Dollars
($35,000,000.00) (the "Initial Disbursement"); and
WHEREAS, Mortgagor intends to enter into a Hedging Contract (as
defined in
the Loan Agreement) with Mortgagee creating additional potential
indebtedness of
Mortgagor in the amount of approximately Two Million Seven Hundred
Thousand and
No/100 Dollars ($2,700,000.00) (the "Additional Exposure"); and
WHEREAS, Mortgagor is justly indebted to Mortgagee in the sum
of
Thirty-Seven Million Seven Hundred Thousand and No/100 Dollars
($37,700,000.00)
consisting of the Initial Disbursement and the Additional Exposure;
and
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WHEREAS, pursuant to the terms of the Loan Agreement, Mortgagor may
request
and Mortgagee may make certain additional obligatory advances of
the Loan
proceeds ("Additional Advances"); and
WHEREAS, prior to any Additional Advances, Mortgagor and Mortgagee
will
amend this Mortgage to increase the amount of indebtedness secured
hereby and
pay any mortgage tax required in conjunction therewith.
NOW,
THEREFORE, to secure to Mortgagee the payment of the aforesaid
indebtedness, with interest thereon, the payment of all present and
future
indebtedness from Mortgagor to Mortgagee, and the performance of
the covenants
and agreements herein contained and contained in the Loan
Agreement, or any
other documents related to the Loan, including without limitation,
all
obligations and liabilities of Mortgagor under any Hedging
Contract, interest
rate swap agreements, interest rate cap agreements and interest
rate collar
agreements, and all other agreements or arrangements with the
Mortgagee designed
to protect Mortgagor against fluctuations in interest rates or
currency exchange
rates, Mortgagor does hereby grant, bargain, sell, convey, mortgage
and grant a
security interest unto Mortgagee and to its successors and assigns
the real
property located in Tulsa County, Oklahoma, described on attached
Exhibit "A",
together with all and singular the tenements, hereditaments and
appurtenances
thereof; all buildings and improvements now or hereafter
constructed on such
real property; and all fixtures, equipment, machinery, apparatus
and articles of
personal property of every kind and character now owned or
hereafter acquired by
Mortgagor and now or hereafter located in or on the aforesaid
buildings and
improvements or used or useful for the operation, construction,
ownership,
management, maintenance, financing or sale of the foregoing real
property,
buildings or improvements, and all accounts, instruments,
documents, chattel
paper, contract rights, inventory, general intangibles and goods,
all of which
property is herein called the "Collateral", which shall include,
but not be
limited to: (a) all signs, draperies, screens, awnings, storm
windows and doors,
window shades, cabinets, partitions, floor coverings, escalators,
elevators and
motors, ranges, refrigerators, boilers, tanks, furnaces, radiators
and all
heating, lighting, plumbing, gas, electric, ventilating,
refrigerating, air
conditioning, laundry, cleaning, fire prevention, fire
extinguishing,
communications, kitchen and incinerating equipment of whatsoever
kind and
character; (b) all of the right, title and interest of Mortgagor in
and to any
items of personal property which may be subject to a title
retention or security
agreement superior in lien to the lien of this Mortgage; and (c)
proceeds and
products thereof; provided the Collateral shall not include
fixtures and
furnishings owned by bona fide tenants of the improvements. The
above described
real estate, appurtenances, improvements and Collateral are
hereinafter
collectively called the "Mortgaged Premises" and are hereby
declared to be
subject to the lien of this Mortgage as security for the payment of
the
indebtedness herein described. All of the terms used in this
paragraph which are
defined in the Oklahoma Uniform Commercial Code (the "UCC") shall
have the
meanings set forth in the UCC.
TO
HAVE AND TO HOLD the Mortgaged Premises with all the rights,
improvements and appurtenances thereunto belonging, or in anywise
appertaining
unto Mortgagee, its successors and assigns, forever. Mortgagor
covenants that,
except for rights-of-way and easements of record and other
exceptions as may be
approved by Mortgagee, Mortgagor is seized of an indefeasible
estate in fee
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<PAGE>
simple in the Mortgaged Premises, that Mortgagor has good title to
the Mortgaged
Premises, a good right to sell, convey and mortgage the same, that
the Mortgaged
Premises are free and clear of all general and special taxes,
liens, charges and
encumbrances of every kind and character, and that Mortgagor hereby
warrants and
will forever defend the title thereto against the claims of all
persons
whomsoever.
1.
Payment of Debt. If Mortgagor shall pay the indebtedness herein
described and Mortgagor shall in all things do and perform all
other acts and
agreements herein contained to be done, then, in that event only,
this Mortgage
shall be and become null and void.
2. Maintenance; Waste.
With respect to the Mortgaged Premises, Mortgagor
covenants and agrees to keep the same in good condition and repair;
to pay all
general and special taxes and assessments and other charges that
may be levied
or assessed upon or against the same as they become due and payable
and to
furnish to Mortgagee receipts showing payment of any such taxes and
assessments,
if demanded; to pay all debts for repair or improvements now
existing or
hereafter arising which may become liens upon or charges against
the Mortgaged
Premises; to comply with or cause to be complied with all
requirements of any
governmental authority relating to the Mortgaged Premises; to
promptly repair,
restore, replace or rebuild any part of the Mortgaged Premises
which may be
damaged or destroyed by any casualty whatsoever or which may be
affected by any
condemnation proceeding or exercise of eminent domain; and to
promptly notify
Mortgagee of any damage to the Mortgaged Premises in excess of One
Million
Dollars ($1,000,000.00). Mortgagor further covenants and agrees
that Mortgagor
will not commit or suffer to be committed any waste of the
Mortgaged Premises;
initiate, join in or consent to any change in any private
restrictive covenant,
zoning ordinance or other public or private restrictions limiting
or defining
the uses which may be made of the Mortgaged Premises or any part
thereof; permit
any lien or encumbrance of any kind or character to accrue or
remain on the
Mortgaged Premises or any part thereof which might take precedence
over the lien
of this Mortgage.
3.
Taxes and Insurance. Mortgagor will pay or cause to be paid all
real
estate taxes and assessments on the Mortgaged Premises and all
insurance
premiums for hazard and liability insurance covering the Mortgaged
Premises as
the same shall become due as further set forth in the Loan
Agreement.
Furthermore, Mortgagor shall submit evidence of payment of the same
upon written
request from Mortgagee. In the event of a default in the payment of
such taxes
or insurance then Mortgagee shall be permitted to pay the taxes
and/or insurance
to protect the Mortgaged Premises and charge the same to the
Mortgagor as
additional indebtedness secured by the Mortgage. Notwithstanding
the foregoing,
Mortgagee shall reserve the right to require Mortgagor to pay to
Mortgagee in
addition to the monthly installments of principal and interest a
sum (herein
"Funds") equal to one-twelfth of the yearly taxes and assessments
which may
attain priority over this Mortgage plus one-twelfth of yearly
premium
installments for hazard insurance, all as reasonably estimated
initially and
from time to time by Mortgagee on the basis of assessments and
bills and
reasonable estimates thereof. The Funds shall be held by Mortgagee,
who shall
apply the Funds to pay said taxes, assessments and insurance
premiums. Mortgagee
shall make no charge for so holding and applying the Funds or
verifying and
compiling said assessments and bills. Mortgagee shall not be
required to pay
Mortgagor any interest on the Funds. Mortgagee shall give to
Mortgagor, without
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<PAGE>
charge, an annual accounting of the Funds showing credits and
debits to the
Funds and the purpose for which each debit to the Funds was made.
The Funds are
pledged as additional security for the indebtedness secured by this
Mortgage.
Funds paid hereunder may be commingled with other funds of the
Mortgagee.
If
the amount of the Funds held by Mortgagee shall not be sufficient
to pay
taxes, assessments and insurance premiums as they fall due,
Mortgagor shall pay
to Mortgagee the amount of any such deficiency within thirty days
after notice
from Mortgagee to Mortgagor requesting payment thereof.
Upon
payment in full of all sums secured by this Mortgage, Mortgagee
shall
promptly refund to Mortgagor any Funds held by Mortgagee.
4.
Alterations. Except as permitted under the Loan Agreement, no
completed
building or other property now or hereafter subject to the lien of
this Mortgage
shall be removed, demolished or materially altered, without the
prior written
consent of Mortgagee, except that Mortgagor shall have the right,
without such
consent, to remove and dispose of, free from the lien of this
Mortgage, such
Collateral as from time to time may become worn or obsolete,
provided that
either: (a) simultaneously with or prior to such removal, any such
Collateral
shall be replaced with other Collateral of a value at least equal
to that of the
replaced Collateral and free from any title retention device,
security agreement
or other encumbrance, and by such removal or replacement, Mortgagor
shall be
deemed to have subjected such Collateral to the lien of this
Mortgage; or (b)
any net cash proceeds received from such disposition shall be paid
over promptly
to Mortgagee to be applied to the last installments due on the
indebtedness
hereby secured, without any charge for prepayment.
5.
Default; Remedies. Upon the failure of Mortgagor (after notice
to
Mortgagor and expiration of any applicable cure period pursuant to
the Loan
Agreement) to pay any of the taxes, assessments, debts, liens or
other charges
as the same become due and payable, or to insure the Mortgaged
Premises as
required under the Loan Agreement, or to perform any of Mortgagor's
covenants
and agreements herein, Mortgagee is hereby authorized, at its
option, to insure
the Mortgaged Premises, or any part thereof, and pay the costs of
such insurance
and to pay such taxes, assessments, debts, liens or other charges
herein
described, or any part thereof, and to remedy Mortgagor's failure
to perform
hereunder and pay the costs associated therewith, and Mortgagor
hereby agrees to
refund on demand all sum or sums so paid, with interest thereon at
the default
rate under the Note; and any such sum or sums so paid together with
interest
thereon shall become a part of the indebtedness hereby secured;
provided,
however, that the retention of a lien hereunder for any sum so paid
shall not be
a waiver of subrogation or substitution which Mortgagee might
otherwise have. In
the event of the failure of Mortgagor to pay any of the taxes,
assessments,
debts, liens or other charges herein described as the same become
due and
payable (provided, however, Mortgagor shall have the right to
contest any such
charges in good faith by appropriate proceedings and thereby not be
in default)
or to keep the Mortgaged Premises insured in the manner and time
herein
provided, or the failure to deliver renewal policies in the manner
and time
herein provided, or if any installment of principal or interest is
not paid at
or within the time required by the terms of the Note, or the
failure to do any
of the things herein agreed to be done, or on the breach of any of
the terms of
the Note, the Loan Agreement, the Loan documents (as defined in the
Loan
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<PAGE>
Agreement), this Mortgage or any other instrument securing or
evidencing the
indebtedness hereby secured, beyond any applicable grace period
contained
therein, including, without limitation, all agreements between
Mortgagee and the
Mortgagor which give rise to Hedging Obligations (as defined in the
Loan
Agreement), then, in any of such events, whether Mortgagee has paid
any of the
taxes, liens or other charges, or procured the insurance, or
remedied
Mortgagor's failure to perform, all as above mentioned, or not,
Mortgagor shall
be in default hereunder. In the event of default, after applicable
cure period,
Mortgagee may either (1) declare the principal of the Note, all
interest accrued
thereon and all other sums hereby secured, without deduction and
without notice,
to be immediately due and payable, and Mortgagee will be entitled
to foreclose
this Mortgage by judicial proceeding, or (2) after any notice to
Mortgagor and
Mortgagor required by the Oklahoma Power of Sale Mortgage
Foreclosure Act,
declare the principal of the Note, all interest accrued thereon and
all other
sums hereby secured, without deduction, to be immediately due and
payable, and
Mortgagee will be entitled to foreclose this Mortgage by power of
sale pursuant
to the provisions of the Oklahoma Power of Sale Mortgage
Foreclosure Act.
Mortgagor hereby confers upon Mortgagee and grants to Mortgagee the
power to
sell the Mortgaged Premises. On default, Mortgagee will be entitled
to exercise
all further and additional remedies as might now or hereafter be
accorded to
Mortgagee at law or in equity. Whether Mortgagee elects to
foreclose this
Mortgage by judicial proceeding or by power of sale, Mortgagee
shall,
immediately on default, be entitled to the possession of the
Mortgaged Premises
and the rents and profits thereof, and shall be entitled to have a
receiver
appointed to take possession of the Mortgaged Premises without
notice, which
notice Mortgagor hereby waives, notwithstanding anything contained
in this
Mortgage or any law heretofore or hereafter enacted.
6.
Taxes; Expenses. Mortgagor agrees to pay any and all taxes which
may be
levied or assessed directly or indirectly upon the Note, this
Mortgage and the
indebtedness hereby secured, and further agrees to pay all expenses
incurred in
connection with the creation of the indebtedness hereby secured,
including,
without limitation, all broker's fees, real estate commissions,
attorneys' fees,
title guaranty fees, survey expenses, appraiser's fees, abstracting
expenses,
recording costs and lien indemnification fees, without regard to
any law which
may be hereafter enacted imposing payment of the whole or any part
thereof upon
Mortgagee; and, upon violation of this agreement, or upon the
rendering by any
court of competent jurisdiction of a decision that such an
agreement by a
mortgagor is legally inoperative, or if the rate of said taxes and
expenses
added to the rate of interest provided for in the Note shall exceed
the then
legal rate of interest, then, and in any such event, the
indebtedness hereby
secured, w