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Mortgage, Assignment, Security Agreement and
Fixture Filing
This
Mortgage, Assignment, Security Agreement and Fixture Filing is made
as of the 24th day of June, 2008, by G&E HEALTHCARE REIT
NUTFIELD PROFESSIONAL CENTER, LLC, a Delaware limited liability
company (herein referred to as “ Mortgagor ”),
whose address is c/o Grubb & Ellis Realty Investors, LLC, 1551
N. Tustin Avenue, Suite 300, Santa Ana, California 92705, for
the benefit of WACHOVIA FINANCIAL SERVICES, INC., a North Carolina
corporation, as administrative agent as described below (in such
capacity, along with its successors and assigns, “
Mortgagee ”), whose address is Wachovia Financial
Services, Inc., Real Estate Financial Services, General Banking
Group, Mail Code: CA 6233, 15750 Alton Parkway, Irvine,
California 92618. Mortgagee is acting as the agent for itself and
all other “Lenders” now or hereafter existing under
that certain Loan Agreement of even date herewith (the “
Loan Agreement ”) between G&E Healthcare REIT 5995
Plaza Drive, LLC, a Delaware limited liability company, G&E
Healthcare REIT Epler Parke Building B, LLC, a Delaware limited
liability company, G&E Healthcare REIT Academy, LLC, a Delaware
limited liability company, and G&E Healthcare REIT Medical
Portfolio 2, LLC, a Delaware limited liability company, and
Mortgagor, collectively as “Borrower” (collectively,
“ Borrower ”), Mortgagee as
“Administrative Agent” and the “Lenders”
described therein. As used herein, the term " Lenders
” shall have the meaning that is given such term in the Loan
Agreement.
Recitals
Mortgagor
has requested that Lenders make the Loan (as hereinafter defined)
to Mortgagor. As a condition precedent to making the Loan, Lenders
have required that Mortgagor execute and deliver this Mortgage,
Assignment, Security Agreement and Fixture Filing to Mortgagee (as
agent for Lenders).
Grants and
Agreements
Now,
therefore, in order to induce Lenders to make the Loan to Borrower,
Mortgagor, for consideration paid, agrees as follows:
Article I
Definitions
As used in
this Mortgage, the terms defined in the Preamble hereto shall have
the respective meanings specified therein, and the following
additional terms shall have the meanings specified:
"
Accessories ” means all fixtures, equipment, systems,
machinery, furniture, furnishings, appliances, inventory, goods,
building and construction materials, supplies and other articles of
personal property, of every kind and character, tangible and
intangible (including software embedded therein), now owned or
hereafter acquired by Mortgagor, which are now or hereafter
attached to or situated in, on or about the Land or Improvements,
or used in or necessary to the complete and proper planning,
development, use, occupancy or operation thereof, or acquired
(whether delivered to the Land or stored elsewhere) for use or
installation in or on the Land or Improvements, and all Additions
to the foregoing, all of which are hereby declared to be permanent
accessions to the Land.
"
Accelerating Transfer ” means any Transfer of all or
any part of the Property, the legal or beneficial interest therein,
or any membership interest in Mortgagor in violation of
Section 5.2 of this Mortgage.
"
Accounts ” means all accounts of Mortgagor, within the
meaning of the Uniform Commercial Code of the State, derived from
or arising out of the use, occupancy or enjoyment of the Property
or for services rendered therein or thereon.
"
Additional Mortgages ” has the meaning set forth in
the definition of “Obligations” set forth below.
"
Additions ” means any and all alterations, additions,
accessions and improvements to property, substitutions therefor,
and renewals and replacements thereof.
"
Claim ” means any liability, suit, action, claim,
demand, loss, expense, penalty, fine, judgment or other cost of any
kind or nature whatsoever, including fees, costs and expenses of
attorneys, consultants, contractors and experts.
"
Condemnation ” means any taking of title to, use of,
or any other interest in the Property under the exercise of the
power of condemnation or eminent domain, whether temporarily or
permanently, by any Governmental Authority or by any other Person
acting under or for the benefit of a Governmental Authority.
"
Condemnation Awards ” means any and all judgments,
awards of damages (including severance and consequential damages),
payments, proceeds, settlements, amounts paid for a taking in lieu
of Condemnation, or other compensation heretofore or hereafter
made, including interest thereon, and the right to receive the
same, as a result of, or in connection with, any Condemnation or
threatened Condemnation.
"
Contract of Sale ” means any contract for the sale of
all or any part of the Property or any interest therein, whether
now in existence or hereafter executed.
"
Default ” means an event or circumstance which, with
the giving of Notice or lapse of time, or both, would constitute an
Event of Default under the provisions of this Mortgage.
"
Design and Development Documents ” means,
collectively, (a) all contracts for services to be rendered,
work to be performed or materials to be supplied in the development
of the Land or the construction or repair of Improvements, if any;
(b) all plans, drawings and specifications for the development
of the Land or the construction or repair of Improvements, if any;
(c) all permits, licenses, variances and other rights or
approvals issued by or obtained from any Governmental Authority or
other Person in connection with the development of the Land or the
construction or repair of Improvements, if any; and (d) all
amendments of or supplements to any of the foregoing.
"
Encumbrance ” means any Lien, easement, right of way,
roadway (public or private), condition, covenant or restriction
(including any condition, covenant or restriction imposed in
connection with any condominium development or cooperative housing
development), Lease or other matter of any nature that would affect
title to the Property.
"
Environmental Agreement ” means the Environmental
Indemnity Agreement of even date herewith by and between Mortgagor
and Guarantor in favor of Mortgagee and Lenders pertaining to the
Property, as the same may from time to time be extended, amended,
restated, supplemented or otherwise modified. The Environmental
Agreement is one of the Loan Documents, but this Mortgage does not
secure the obligations of Mortgagor or Guarantor under the
Environmental Agreement or any other “Environmental
Indemnity” as defined in the Loan Agreement.
" Event
of Default ” means an event or circumstance specified in
Article VI and the continuance of such event or
circumstance beyond the applicable grace and/or cure periods
therefor, if any, set forth in Article VI .
"
Expenses ” means all fees, charges, costs and expenses
of any nature whatsoever incurred at any time and from time to time
(whether before or after an Event of Default) by Mortgagee or
Lenders in making, funding, administering or modifying the Loan, in
negotiating or entering into any “workout” of the Loan,
or in exercising or enforcing any rights, powers and remedies
provided in this Mortgage, any Swap Contract or any of the other
Loan Documents, including reasonable attorneys’ fees, court
costs, receiver’s fees, management fees and costs incurred in
the repair, maintenance and operation of, or taking possession of,
or selling, the Property.
"
Governmental Authority ” means any governmental or
quasi-governmental entity, including any court, department,
commission, board, bureau, agency, administration, service,
district or other instrumentality of any governmental entity.
"
Guarantor ” means Grubb & Ellis Healthcare REIT,
Inc., a Maryland corporation.
"
Improvements ” means all buildings, structures and
other improvements now or hereafter existing, erected or placed on
the Land, together with any off-site improvements owned by
Mortgagor in any way used or to be used in connection with the use,
enjoyment, occupancy or operation of the Land.
"
Insurance Proceeds ” means the insurance claims under
and the proceeds of any and all policies of insurance covering the
Property or any part thereof, including all returned and unearned
premiums with respect to any insurance relating to such Property,
in each case whether now or hereafter existing or arising.
"
Land ” means the real property described in
Exhibit A attached hereto and made a part hereof.
"
Laws ” means all federal, state and local laws,
statutes, rules, ordinances, regulations, codes, licenses,
authorizations, decisions, injunctions, interpretations, orders or
decrees of any court or other Governmental Authority having
jurisdiction as may be in effect from time to time.
"
Leases ” means all leases, license agreements and
other occupancy or use agreements (whether oral or written), now or
hereafter existing, which cover or relate to the Property or any
part thereof, together with all options therefor, amendments
thereto and renewals, modifications and guaranties thereof,
including any cash or security deposited under the Leases to secure
performance by the tenants of their obligations under the Leases,
whether such cash or security is to be held until the expiration of
the terms of the Leases or applied to one or more of the
installments of rent coming due thereunder.
"
Letter of Credit ” means any letter of credit issued
by Mortgagee or any Lender for the account of Mortgagor or its
nominee in connection with the Property, together with any and all
extensions, renewals or modifications thereof, substitutions
therefor or replacements thereof.
"
Lien ” means any mortgage, Mortgage, pledge, security
interest, assignment, judgment, lien or charge of any kind,
including any conditional sale or other title retention agreement,
any lease in the nature thereof, and the filing of, or agreement to
give, any financing statement under the Uniform Commercial Code of
any jurisdiction.
"
Loan ” means the loan from Lenders to Mortgagor, the
repayment obligations in connection with which are evidenced by the
Notes.
" Loan
Documents ” means this Mortgage, the Notes, the Repayment
Guaranty, the Environmental Agreement, the Loan Agreement, any
application or reimbursement agreement executed in connection with
any Letter of Credit, and any and all other documents (other than
any Swap Contracts) which Mortgagor, Guarantor or any other party
or parties have executed and delivered, or may hereafter execute
and deliver, to evidence, secure or guarantee the Obligations, or
any part thereof, as the same may from time to time be extended,
amended, restated, supplemented or otherwise modified.
"
Mortgage ” means this Mortgage, Assignment, Security
Agreement and Fixture Filing, as the same may from time to time be
extended, amended, restated, supplemented or otherwise
modified.
"
Mortgagee ” means Mortgagee and its successors and
assigns.
"
Note” or “Notes ” means, collectively, one
or more promissory notes in the aggregate stated principal amount
of Fifty Million Three Hundred Twenty-One Thousand Five Hundred and
No/100 Dollars ($50,321,500.00) made by Mortgagor to the order of
one or more Lenders pursuant to the Loan Agreement, as the same may
from time to time be extended, amended, restated, supplemented or
otherwise modified.
"
Notice ” means a notice, request, consent, demand or
other communication given in accordance with the provisions of
Section 9.8 of this Mortgage.
"
Obligations ” means all present and future debts,
obligations and liabilities of Mortgagor and each other Borrower to
Mortgagee and Lenders arising pursuant to, and/or on account of,
the provisions of this Mortgage, any additional deeds of trust or
mortgages now or hereafter made to secure the Loan (“
Additional Mortgages ”) the Notes or any of the other
Loan Documents, including the obligations: (a) to pay all
principal, interest, late charges, prepayment premiums (if any) and
other amounts due at any time under the Notes; (b) to pay all
Expenses, indemnification payments, fees and other amounts due at
any time under this Mortgage, any Additional Mortgages or any of
the other Loan Documents, together with interest thereon as herein
or therein provided; (c) to pay and perform all obligations of
Mortgagor and each other Borrower under any Swap Contract;
(d) to perform, observe and comply with all of the other
terms, covenants and conditions, expressed or implied, which
Mortgagor is required to perform, observe or comply with pursuant
to this Mortgage, any Additional Mortgages or any of the other Loan
Documents; and (e) to pay and perform all future advances and
other obligations that Mortgagor or any successor in ownership of
all or part of the Property may agree to pay and/or perform
(whether as principal, surety or guarantor) for the benefit of
Mortgagee or Lenders, when a writing evidences the parties’
agreement that the advance or obligation be secured by this
Mortgage; excluding , however , the debts,
obligations and liabilities of Mortgagor under the Environmental
Agreement (or any other Environmental Indemnity (as defined in the
Loan Agreement)). This Mortgage does not secure the Environmental
Agreement (or any other Environmental Indemnity (as defined in the
Loan Agreement)), the Repayment Guaranty or any other Loan Document
that is expressly stated to be unsecured.
"
Permitted Encumbrances ” means (a) any matters
set forth in any policy of title insurance issued to Mortgagee (as
agent for Lenders) and insuring Mortgagee’s (as agent for
Lenders) interest in the Property which are acceptable to Mortgagee
as of the date hereof, (b) the Liens and interests of this
Mortgage, and (c) any other Encumbrance that Mortgagee shall
expressly approve in writing in its sole and absolute
discretion.
"
Person ” means an individual, a corporation, a
partnership, a joint venture, a limited liability company, a trust,
an unincorporated association, any Governmental Authority or any
other entity.
"
Personalty ” means all personal property of any kind
or nature whatsoever, whether tangible or intangible and whether
now owned or hereafter acquired, in which Mortgagor now has or
hereafter acquires an interest and which is used in the
construction of, or is placed upon, or is derived from or used in
connection with the maintenance, use, occupancy or enjoyment of,
the Property, including (a) the Accessories; (b) the
Accounts; (c) all franchise, license, management or other
agreements with respect to the operation of the Real Property or
the business conducted therein (provided all of such agreements
shall be subordinate to this Mortgage, and neither Mortgagee nor
Lenders shall have any responsibility for the performance of
Mortgagor’s obligations thereunder), all general intangibles
(including payment intangibles, trademarks, trade names, goodwill,
software and symbols but excluding all of Mortgagor’s rights
and interests under all Swap Contracts, including all rights to the
payment of money from Mortgagee or Lenders under any Swap Contract)
related to the Real Property or the operation thereof; (d) all
sewer and water taps, appurtenant water stock or water rights,
allocations and agreements for utilities, bonds, letters of credit,
permits, certificates, licenses, guaranties, warranties, causes of
action, judgments, Claims, profits, security deposits, utility
deposits, and all rebates or refunds of fees, Taxes, assessments,
charges or deposits paid to any Governmental Authority related to
the Real Property or the operation thereof; (e) all insurance
policies held by Mortgagor with respect to the Property or
Mortgagor’s operation thereof; and (f) all money,
instruments and documents (whether tangible or electronic) arising
from or by virtue of any transactions related to the Property, and
all deposits and deposit accounts of Mortgagor with Mortgagee or
any Lender related to the Property, including any such deposit
account from which Mortgagor may from time to time authorize
Mortgagee to debit and/or credit payments due with respect to the
Loan; together with all Additions to and Proceeds of all of the
foregoing.
"
Proceeds ,” when used with respect to any of the
Property, means all proceeds of such Property, including all
Insurance Proceeds and all other proceeds within the meaning of
that term as defined in the Uniform Commercial Code of the
State.
"
Property ” means the Real Property and the Personalty
and all other rights, interests and benefits of every kind and
character which Mortgagor now has or hereafter acquires in, to or
for the benefit of the Real Property and/or the Personalty and all
other property and rights used or useful in connection therewith,
including all Leases, all Rents, all Condemnation Awards, all
Proceeds, and all of Mortgagor’s right, title and interest in
and to all Design and Development Documents, all Contracts of Sale
and all Refinancing Commitments.
"
Property Assessments ” means all Taxes, payments in
lieu of taxes, water rents, sewer rents, assessments, condominium
and owner’s association assessments and charges, maintenance
charges and other governmental or municipal or public or private
dues, charges and levies and any Liens (including federal tax
liens) which are or may be levied, imposed or assessed upon the
Property or any part thereof, or upon any Leases or any Rents,
whether levied directly or indirectly or as excise taxes, as income
taxes, or otherwise.
" Real
Property ” means the Land and Improvements, together with
(a) all estates, title interests, title reversion rights,
remainders, increases, issues, profits, rights-of-way or uses,
additions, accretions, servitudes, strips, gaps, gores, liberties,
privileges, water rights, water courses, alleys, passages, ways,
vaults, licenses, tenements, franchises, hereditaments,
appurtenances, easements, rights of ingress or egress, parking
rights, timber, crops, mineral interests and other rights, now or
hereafter owned by Mortgagor and belonging or appertaining to the
Land or Improvements; (b) all Claims whatsoever of Mortgagor
with respect to the Land or Improvements, either in law or in
equity, in possession or in expectancy; (c) all estate, right,
title and interest of Mortgagor in and to all streets, roads and
public places, opened or proposed, now or hereafter adjoining or
appertaining to the Land or Improvements; and (d) all options
to purchase the Land or Improvements, or any portion thereof or
interest therein, and any greater estate in the Land or
Improvements, and all Additions to and Proceeds of the
foregoing.
"
Refinancing Commitment ” means any commitment from or
other agreement with any Person providing for the financing of the
Property, some or all of the proceeds of which are intended to be
used for the repayment of all or a portion of the Loan.
"
Rents ” means all of the rents, royalties, issues,
profits, revenues, earnings, income and other benefits of the
Property, or arising from the use or enjoyment of the Property,
including all such amounts paid under or arising from any of the
Leases and all fees, charges, accounts or other payments for the
use or occupancy of rooms or other public facilities within the
Real Property.
"
Repayment Guaranty ” means the Repayment Guaranty of
even date herewith executed by Guarantor for the benefit of
Mortgagee and Lenders, as the same may from time to time be
extended, amended, restated, supplemented or otherwise
modified.
"
State ” means the state in which the Land is
located.
" Swap
Contract ” means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap or option, bond, note or bill option,
interest rate option, forward foreign exchange transaction,
interest cap, collar or floor transaction, currency swap,
cross-currency rate swap, swap option, currency option or any other
similar transaction (including any option to enter into the
foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., or any other master agreement, entered into between Mortgagee
or Lenders (or their affiliates) and Mortgagor (or its affiliate)
in connection with the Loan, together with any related schedules
and confirmations, as amended, supplemented, superseded or replaced
from time to time, relating to or governing any or all of the
foregoing.
"
Taxes ” means all taxes and assessments, whether
general or special, ordinary or extraordinary, or foreseen or
unforeseen, which at any time may be assessed, levied, confirmed or
imposed by any Governmental Authority or any community facilities
or other private district on Mortgagor or on any of its properties
or assets or any part thereof or in respect of any of its
franchises, businesses, income or profits.
"
Transfer ” means any direct or indirect sale,
assignment, conveyance or transfer, including any Contract of Sale
and any other contract or agreement to sell, assign, convey or
transfer, whether made voluntarily or by operation of Law or
otherwise, and whether made with or without consideration.
Article II
Granting Clauses;
Condition of Grant
Section 2.1 Conveyances and Security Interests .
In order
to secure the prompt payment of all principal, interest and other
amounts pursuant to the terms of a promissory note of Mortgagor of
even date herewith in the amount of $50,321,500.00, payable to the
order of Mortgagee, and any and all extensions, modifications,
renewals and substitutions therefore (the “Note” or the
“Notes”) and the payment and performance by Mortgagor
of all obligations under the Mortgage, the Note, all Swap
Contracts, and any of the other Loan Documents, Mortgagor, for
consideration paid, (a) irrevocably and unconditionally
grants, mortgages, transfers and assigns to Mortgagee (as agent for
Lenders), with power of sale and right of entry and possession, all
estate, right, title and interest that Mortgagor now has or may
later acquire in and to the Real Property; (b) grants to
Mortgagee (as agent for Lenders) a security interest in the
Personalty and fixtures; (c) assigns to Mortgagee (as agent
for Lenders), and grants to Mortgagee (as agent for Lenders) a
security interest in, all Condemnation Awards and all Insurance
Proceeds; and (d) assigns to Mortgagee (as agent for Lenders),
and grants to Mortgagee (as agent for Lenders) a security interest
in, all of Mortgagor’s right, title and interest in, but not
any of Mortgagor’s obligations or liabilities under, all
Design and Development Documents, all Contracts of Sale and all
Refinancing Commitments. All Persons who may have or acquire an
interest in all or any part of the Property will be deemed to have
notice of, and will be bound by, the terms of the Obligations and
each other agreement or instrument made or entered into in
connection with each of the Obligations. Such terms include any
provisions in the Notes, the Loan Agreement or any Swap Contract
which provide that the interest rate on one or more of the
Obligations may vary from time to time. Unless Administrative Agent
and Required Lenders (as defined in the Loan Agreement) otherwise
agree in writing, Mortgagor’s (or its affiliate’s, as
the case may be) obligations under any Swap Contract shall continue
to be secured by this Mortgage notwithstanding that the
counterparty under such Swap Contract ceases to be a Lender (or an
affiliate of a Lender) under the Loan Agreement.
Section 2.2 Absolute Assignment of Leases and Rents
.
In
consideration of the making of the Loan by Lenders to Mortgagor and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Mortgagor absolutely and
unconditionally assigns the Leases and Rents to Mortgagee (as agent
for Lenders). This assignment is, and is intended to be, an
unconditional, absolute and present assignment from Mortgagor to
Mortgagee (as agent for Lenders) of all of Mortgagor’s right,
title and interest in and to the Leases and the Rents and not an
assignment in the nature of a pledge of the Leases and Rents or the
mere grant of a security interest therein. So long as no Event of
Default shall exist, however, and so long as Mortgagor is not in
default in the performance of any obligation, covenant or agreement
contained in the Leases, Mortgagor shall have a license (which
license shall terminate automatically and without notice upon the
occurrence of an Event of Default or a default by Mortgagor under
the Leases) to collect, but not prior to accrual, all Rents.
Mortgagor agrees to collect and hold all Rents in trust for
Mortgagee (as agent for Lenders) and to use the Rents for the
payment of the cost of operating and maintaining the Property and
for the payment of the other Obligations before using the Rents for
any other purpose.
Section 2.3 Security Agreement, Fixture Filing and
Financing Statement .
This
Mortgage creates a security interest in the Personalty, and, to the
extent the Personalty is not real property, this Mortgage
constitutes a security agreement from Mortgagor to Mortgagee (as
agent for Lenders) under the Uniform Commercial Code of the State.
In addition to all of its other rights under this Mortgage and
otherwise, Mortgagee (as agent for Lenders) shall have all of the
rights of a secured party under the Uniform Commercial Code of the
State, as in effect from time to time, or under the Uniform
Commercial Code in force from time to time in any other state to
the extent the same is applicable Law. This Mortgage shall be
effective as a financing statement filed as a fixture filing with
respect to all fixtures included within the Property and is to be
filed for record in the real estate records of each county where
any part of the Property (including such fixtures) is situated.
This Mortgage shall also be effective as a financing statement with
respect to any other Property as to which a security interest may
be perfected by the filing of a financing statement and may be
filed as such in any appropriate filing or recording office. The
respective mailing addresses of Mortgagor and Mortgagee are set
forth in the opening paragraph of this Mortgage. A carbon,
photographic or other reproduction of this Mortgage or any other
financing statement relating to this Mortgage shall be sufficient
as a financing statement for any of the purposes referred to in
this Section. Mortgagor hereby irrevocably authorizes Mortgagee at
any time and from time to time to file any initial financing
statements, amendments thereto and continuation statements as
authorized by applicable Law, reasonably required by Mortgagee to
establish or maintain the validity, perfection and priority of the
security interests granted in this Mortgage. The foregoing
authorization includes Mortgagor’s irrevocable authorization
for Mortgagee at any time and from time to time to file any initial
financing statements and amendments thereto that indicate the
Personalty (a) as “all assets” of Mortgagor or
words of similar effect, regardless of whether any particular asset
comprised in the Personalty falls within the scope of the Uniform
Commercial Code of the State or the jurisdiction where the initial
financing statement or amendment is filed, or (b) as being of
an equal or lesser scope or with greater detail; provided that in
either case, such description is limited to assets used on or in
connection with the Property.
Section 2.4 Release of Mortgage and Termination of
Assignments and Financing Statements .
If and
when Mortgagor has paid and performed all of the Obligations, and
no further advances are to be made under the Loan Agreement and all
Swap Contracts have been terminated, Mortgagee will provide a
release of the Property from the lien of this Mortgage and
termination statements for filed financing statements, if any, to
Mortgagor. Mortgagor shall be responsible for the recordation of
such release and the payment of any recording and fil
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