Mortage & Security Agrmnt #36
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MB REDEVELOPMENT, INC.
407 Lincoln Road
Suite 6-K
Miami Beach, Florida 33139
BANKERS TRUST COMPANY
280 Park Avenue
New York, New York 10017
As of September 20, 1996
FEDERAL EXPRESS
Miami Beach Redevelopment Agency
Executive Director
1700 Convention Center Drive
Miami Beach, Florida 33139
Re: Loews Miami Beach Hotel
Gentlemen:
Reference is made to that certain Agreement of
Lease (the "Lease") of even date herewith between Miami
Beach Redevelopment Agency, as Owner, and MB Redevelopment,
Inc., as Tenant.
Pursuant to Section 11.2(b) of the Agreement of
Lease, enclosed please find a photostatic copy of the
Recognized Mortgage made by MB Redevelopment, Inc. to
Bankers Trust Company, as Agent for the ratable benefit of
the Lenders identified therein. MB Redevelopment, Inc.
hereby certifies to the Miami Beach Redevelopment Agency
that the enclosed photostatic copy of the Recognized
Mortgage is a true copy of the Mortgage made by MB
Redevelopment, Inc. to Bankers Trust Company, as Agent.
Bankers Trust Company hereby certifies that the
address of the Recognized Mortgagee for notices is 280 Park
Avenue, New York, New York 10017, Attention: Jeffrey
Baevsky, with a copy to Loeb & Loeb LLP, 345 Park Avenue,
New York, New York 10154, Attention: Kenneth D. Freeman,
Esq.
Pursuant to the last sentence of Section 11.2(b)
of the Lease, please acknowledge your receipt of the
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enclosed Recognized Mortgage by signing the enclosed copy of
this letter and returning the same to Mr. Freeman.
Very truly yours,
MB REDEVELOPMENT, INC.
By:
Date:
, 1996
cc: Miami Beach Redevelopment Agency
General Counsel
1700 Convention Center Drive
Miami Beach, Florida 33139
and
FORM APPROVED
REDEVELOPMENT AGENCY
GENERAL COUNSEL
8y1f~'
Date 9ikV#h
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
with a copy to:
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
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2
MORTGAGE AND SECURITY AGREEMENT
dated as of September 20, 1996
by
MB REDEVELOPMENT, INC.,
the Mortgagor,
to
BANKERS TRUST COMPANY, as Agent
the Mortgagee
Prepared by:
Kenneth D. Freeman, Esq.
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
After recording return to:
Elaine Cohen, Esq.
Hughes Hubbard & Reed LLP
201 South Biscayne Boulevard
Miami, Florida 33131-4332
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TABLE OF CONTENTS
Paqe
PART A. $66,000,000 Mortgage 2
PART B. Title Warranties 6
PART C. Covenants 7
1. DEFINITIONS 7
2. INDEBTEDNESS 11
3. IMPOSITIONS 12
4. COMPLIANCE WITH LAWS; ETC 15
5 . INSURANCE; ETC. 16
6. ALTERATIONS; DEMOLITION; ETC. 27
7. SALE; ASSIGNMENT; MORTGAGING; ETC. 29
8. PRIORITY OF LIEN; NO MERGER 30
9. CONDEMNATION 31
10. SPACE LEASES 33
11. ON DEFAULT; MANAGEMENT; ETC. 35
12. MORTGAGEE MAY CURE MORTGAGOR'S DEFAULT 37
13. BOOKS AND RECORDS; FINANCIAL STATEMENTS;
ESTOPPELS BY THE MORTGAGOR AND THE MORTGAGEE;
ETC. 38
14. SECURITY AGREEMENTS; ETC.. 39
15. RECORDED INSTRUMENTS .. 40
16. CONCERNING THE SPECIAL PROJECT DOCUMENTS 41
17. CONCERNING THE OTHER PROJECT DOCUMENTS. 46
18. DEFAULT AND REMEDIES 50
19. LEGAL EXPENSES 53
20. TAX ON MORTGAGE; ETC. 54
21. NO CREDITS 55
22. MAINTENANCE; WASTE; INSPECTION; ETC 55
23. ESCROW 56
24. NO WAIVER 57
25. MODIFICATION 57
26. NOTICES 57
27. FURTHER ASSURANCES 58
28. MISCELLANEOUS PROVISTONS 58
29. SUCCESSORS AND ASSIGNS 60
30. GENDER AND NUMBER . 60
31. INVALIDITY OF PROVISIONS 61
32. ENTIRE AGREEMENT 61
33. NOTICE AND RIGHT OF AGENCY'S TO CURE THE
MORTGAGOR'S DEFAULTS 61
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MORTGAGE AND SECURITY AGREEMENT
MORTGAGE AND SECURITY AGREEMENT (as the same may
be amended or otherwise modified from time to time, this
"Mortqaqe") made as of this 20th day of September, 1996, by
and between MB REDEVELOPMENT, INC., a Florida corporation,
having an address at 407 Lincoln Road, Suite 6-K, Miami
Beach, Florida 33139 and BANKERS TRUST COMPANY, acting as
Agent for itself and other Lenders (as such term is
hereinafter defined) pursuant to the Construction Loan Agre-
ement hereinafter referred to (the "Mortqaqee"), a New York
banking corporation, having an address at 280 Park Avenue,
New York, New York 10017.
WIT N E SSE T H:
WHEREAS, pursuant to the Condominium Documents (as
hereinafter defined), the Mortgagor is the absolute holder
of the estate (the "Hotel Unit Estate") in and to the Hotel
Unit (as such term is defined in the Condominium Documents) ,
which Condominium Documents relate to premises described in
EXHIBIT A annexed hereto (the "Premises");
WHEREAS, the Mortgagor is the present and lawful
owner of the tenants' leasehold estates (collectively, the
"Leasehold Estate") under each of the Land Lease and the
Condominium Unit Lease (as such terms are hereinafter
defined) (as the same may from time to time be amended or
otherwise modified, each, a "Mortqaqed Lease" and
collectively, the "Mortqaqed Leases"), which Leasehold
Estate also affects the premises described in EXHIBIT A
annexed hereto;
WHEREAS, the Mortgagor is the present and lawful
owner of the easements (collectively, the "Easement")
created by, and the benefitted party under, the Garage
Easement Agreement (as such term is hereinafter defined) ,
which Garage Easement Agreement affects the premises
described in EXHIBIT B annexed hereto;
WHEREAS, pursuant to the Construction Loan
Agreement (as such term is hereinafter defined), the Lenders
propose to make certain loans (the "Loans") to the Mortgagor
in the principal amount of $66,000,000 or so much thereof as
shall be advanced pursuant to the Construction Loan
Agreement;
WHEREAS, the Loans will be evidenced by a certain
note made by the Mortgagor payable to the order of the
Mortgagee (for the ratable benefit of the Lenders) and dated
the date hereof (as the same may be amended or otherwise
modified from time to time, the "Note"); and
WHEREAS, the Mortgagor is desirous of securing the
timely payment of the Note and the observance of all
covenants, agreements and conditions contained in this
Mortgage and in the other Loan and Security Documents (as
such term is hereinafter defined) to which the Mortgagor is
a party.
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, receipt of which
is hereby acknowledged, the Mortgagor hereby agrees as
follows:
PART A. $66,000,000 Mortqaqe.
To secure the payment of the Loans, to secure the
payment by the Mortgagor of interest thereon, to secure all
sums which may be expended or incurred by the Mortgagee
and/or any of the Lenders to preserve and/or protect the
lien hereof and to secure the observance of all other
covenants, agreements and conditions contained in the Loan
and Security Documents to which the Mortgagor is a party,
the Mortgagor has MORTGAGED, GRANTED, ASSIGNED, BARGAINED,
SOLD AND CONVEYED, and by these presents does MORTGAGE,
GRANT, ASSIGN, BARGAIN, SELL AND CONVEY, unto the Mortgagee,
for the ratable benefit of the Lenders, all of the Mortgaged
Premises (as such term is hereinafter defined), subject,
however, only to the Permitted Encumbrances (as such term is
hereinafter defined), TO HAVE AND HOLD all the Mortgaged
Premises unto the Mortgagee, forever, and the Mortgagor does
hereby bind itself, its successors and assigns to warrant
and forever defend the title to the Mortgaged Premises unto
the Mortgagee against every person, subject to the Permitted
Encumbrances, lawfully claiming the same or any part
thereof; to wit:
I. All of the right, title and interest of the
Mortgagor in and to the Hotel Unit Estate and the Easement;
II. TOGETHER with all the right, title and
interest of the Mortgagor in and to the Mortgaged Leases
comprising the Leasehold Estate, in and to all
modifications, extensions and renewals of the Mortgaged
Leases, in and to the right to renew the Mortgaged Leases
for a succeeding term or terms, in and to the credits,
deposits, options, privileges and rights of the Mortgagor as
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lessee under each of the Mortgaged Leases, and in and to the
premises demised by the Mortgaged Leases, including but not
limited to any fee title therein which the Mortgagor may
hereafter acquire;
III. TOGETHER with all the right, title and
interest of the Mortgagor in and to the Easement, in and to
all modifications, extensions and renewals of such Easement,
and in and to the credits, deposits, options, privileges and
rights of the Mortgagor under the Garage Easement Agreement
(provided, however, that the Mortgaged Premises shall
exclude the Mortgagor's interest in and to the master lease
referred to in SECTION 7(g) of the Garage Easement Agree-
ment) ;
IV. TOGETHER with all right, title and interest
of the Mortgagor, if any, now owned or hereafter acquired,
in and to, all and singular, the easements, tenements,
hereditaments and appurtenances belonging or in any way
appertaining to the Premises, or any portion thereof, and
the reversion and remainder thereof;
V. TOGETHER with all right, title and interest of
the Mortgagor, if any, whether now owned or hereafter
acquired, in and to any land lying in the bed of any street,
road or avenue, open or proposed, in front of or adjoining
or adjacent to the Premises, or any part thereof;
VI. TOGETHER with all right, title and interest
of the Mortgagor, if any, whether now owned or hereafter
acquired, in and to all water, water rights, mineral rights,
ditches, ditch rights, reservoirs and reservoir rights
appurtenant to, located on or used in connection with the
Premises or the Improvements (as such term is hereinafter
defined) ;
VII. TOGETHER with all right, title and interest
of the Mortgagor, if any, whether now owned or hereafter
acquired, in and to all insurance or other proceeds for
damage done to buildings, structures or other improvements
or personal property of the Mortgagor on the Premises and
all awards heretofore made or hereafter to be made to or for
the account of the Mortgagor for the permanent or temporary
taking by eminent domain of the whole or any part of the
Mortgaged Premises or any lesser estate in, or easement
appurtenant to, the Mortgaged Premises (including, without
limitation, any awards for change-of grade of streets), all
of which proceeds and awards are hereby assigned to the
Mortgagee, subject to the further provisions of this
Mortgage;
VIII. TOGETHER with all right, title and interest
of the Mortgagor, if any, whether now owned or hereafter
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acquired, in and to all of the proceeds, product, off-spring
or profits of the Mortgaged Premises, and including all
amounts paid as rents of such Mortgaged Premises and the
fees, charges, accounts and other payments for the use or
occupancy of rooms and other facilities in and at the
Mortgaged Premises, including all right, title and interest
of the Mortgagor, if any, in and to the Space Leases (as
such term is hereinafter defined) now or hereafter entered
into covering the whole or any part of the Mortgaged
Premises, and all security and other deposits made pursuant
thereto, whether existing before or after the commencement
of a case under Title 11 of the United States Code, all of
which are hereby absolutely assigned to the Mortgagee,
subject, however, to the right of the Mortgagor to receive
and use the same as hereinafter provided, subject, further,
to the right, power and authority hereinafter given to and
conferred upon the Mortgagee to collect and apply such
rents, issues, benefits and profits as provided herein and
in the Management Agreement (as such term is hereinafter
defined) ;
IX. TOGETHER with all right, title and interest
of the Mortgagor, if any, whether now owned or hereafter
acquired, in and to all of the records and books of account
now or hereafter maintained by the Mortgagor in connection
with the operation of the Mortgaged Premises;
X. TOGETHER also with all right, title and
interest of the Mortgagor, if any, whether now owned or
hereafter acquired, in and to (i) all buildings, structures
and other improvements now or hereafter erected, constructed
or situated upon the Premises or any part thereof; (ii) all
machinery, devices, fixtures, interior improvements, appu-
rtenances, equipment and articles of personal property of
every kind and nature whatsoever now or hereafter attached
to or placed in or upon the Premises, or any part thereof,
or any such building, structure or other improvement,
whether as a hotel or otherwise, or any part thereof, or
used or procured for use in connection with the operation of
any such building, structure or other improvement, and all
building materials and supplies for incorporation into any
such building, structure or other improvement, including,
but without limiting the generality of the foregoing, all
materials, engines, furnaces, boilers, stokers, pumps,
tanks, heaters, oil burners, dynamos, generators, motors,
scales, laboratory and testing equipment, swimming pools and
related equipment, maintenance equipment of every kind and
nature, switchboards, partitions, doors, electrical wiring
and equipment, projection equipment, heating, plumbing,
washroom, toilet and lavatory fixtures and equipment,
lifting, ventilating and incinerating apparatus, sprinkler
and other fire extinguishing and fire prevention apparatus
or systems, air-conditioning apparatus, gas, electric and
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steam fixtures, elevators, conveyors, escalators, hoists,
vaults and safes, fittings, radiators, chutes, ducts,
machinery, sweeping, vacuuming and other cleaning equipment,
tools, building supplies, window washing hoists, as well as
all additions thereto and replacements thereof
(collectively, "Buildinq Service Eauipment"; such buildings,
structures or improvements now or hereafter erected,
constructed or situated upon the Premises or any part
thereof and the Building Service Equipment are sometimes
collectively called the "Improvements"); and (iii) all of
the furniture, furnishings, beds, bedsprings, mattresses,
bureaus, chairs, chests, desks, bookcases, tables, rugs,
carpets, curtains, draperies, hangings, decorations,
pictures, divans, couches, glassware, silverware, tableware,
linens, towels, bedding, blankets, china, ornaments,
bric-a-brac, kitchen equipment, and utensils, bars, bar
fixtures, uniforms, safes, cash registers, accounting and
duplicating machines, telephones, communication equipment,
vaults, washtubs, sinks, stoves, ranges, radios, television
sets, laundry machines, iceboxes, refrigerators, awnings,
screens, window shades, venetian blinds, statuary, lamps,
mirrors, and all other appliances, fittings, and equipment
of every kind, now or hereafter situated in, or used in the
operation of the business conducted at, the rooms, halls,
lounges, restaurants, bars and kitchen facilities, offices,
lobbies, lavatories, basements, cellars and other portions
of any of the Improvements, as well as any and all
replacements thereof and additions thereto (collectively,
the "Furnishinas and Furniture");
XI. TOGETHER with all right, title and interest
of the Mortgagor, if any, whether now owned or hereafter
acquired, in and to the name or names, if any, as may now or
hereafter be used for the Improvements, and the good will
associated therewith; provided, however, that with respect
to the use of the name "Loews" , the security interest hereby
granted shall only extend to the Mortgagor's contractual
right to use such name pursuant and subject to the terms of
the Management Agreement;
XII. TOGETHER with all rights of the Mortgagor or
any successor owner of the interest of the lessee under any
of the Mortgaged Leases to elect to remain in possession of
the property let thereby pursuant to Section 365(h) (1) of
Title 11 of the United States Code Annotated, as the same
may be in effect from time to time or pursuant to any
similar provision of applicable law;
XIII. TOGETHER with all possessory rights of the
Mortgagor, as lessee under the Mortgaged Leases, arising
under Section 365 (h) (2) of Title 11 of the United States
Code Annotated, as the same may be in effect from time to
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time or pursuant to any similar provision of applicable law;
and
XIV. TOGETHER with all of the right, title and
interest of the Mortgagor, if any, in the balance of the
Premises to the extent not already included in these
granting clauses and all proceeds of any of the foregoing.
All property of every kind acquired by the Mor-
tgagor after the date hereof which, by the terms hereof, is
required or intended to be subjected to the lien or security
interest of this Mortgage shall, immediately upon the
acquisition thereof by the Mortgagor, and without the nece-
ssity of any further deed of trust, mortgage or other instr-
ument, become subject to the lien and security interest of
this Mortgage. Except as may be specifically authorized and
permitted in the Construction Loan Agreement, the Mortgagor
will neither acquire nor agree to acquire any property of
any character which by the terms hereof is required or
intended to be subjected to the lien or security interest of
this Mortgage, subject to any chattel mortgage, security
agreement, conditional sale, or other lien, encumbrance or
charge, other than the Permitted Encumbrances.
All of the foregoing including, without
limitation, appurtenances, easements, estates, rights,
privileges, interests and franchises hereby granted,
assigned, transferred, set over and mortgaged, or intended
so to be, are hereinafter collectively referred to as the
"Mortaaaed Premises" and such term shall be deemed to refer
to the Mortgaged Premises or any part thereof.
PROVIDED, HOWEVER, that if the Mortgagor shall pay
(or cause to be paid) the indebtedness (as hereinafter
defined) as and when the same shall become due and payable
and shall perform and discharge (or cause to be performed
and discharged) the other and further obligations and
agreements on the part of the Mortgagor hereunder and under
the other Loan and Security Documents on or before the date
same are to be performed and discharged, then the liens,
security interests, estates and rights granted by this Mor-
tgage shall terminate, otherwise same shall remain in full
force and effect.
PART B. Title Warranties. The Mortgagor repr-
esents and warrants to and covenants with the Mortgagee as
follows:
(i) That the Mortgagor is lawfully seized
and possessed of the estate which it purports to own in and
to the Hotel Unit, and that it holds good title thereto and
to the Leasehold Estate, to the Easement, and to the rest of
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the Mortgaged Premises, subject only to the Permitted Encu-
mbrances;
(ii) That the Mortgaged Premises are now
free and clear of all liens and encumbrances whatsoever,
other than the Permitted Encumbrances, and that the
Mortgagor has good right and lawful authority to mortgage
and convey the same in the manner and form herein provided,
and that it will warrant and defend title to the Mortgaged
Premises against all claims and demands whatsoever;
(iii) That this Mortgage was lawfully
executed and delivered in accordance with applicable law and
in conformity with each of the Project Documents (as such
term is hereinafter defined) ;
(iv) That none of the Project Documents has
been modified and each is a valid and subsisting agreement
in full force and effect in accordance with its terms; and
(v) That no party to any Project Document is
in default under any of the terms and provisions thereof on
the part of such party to be observed and performed.
PART C. Covenants. The Mortgagor further
covenants as follows:
1. DEFINITIONS:
1.1 The following index sets forth those
definitions contained in the text of this Mortgage:
"Award" .
"Building Service Equipment"
Easements" .
Fee Estate"
Furnishings and Furniture"
Improvements"
Leasehold Estate"
Loans" .
Mortgage"
Mortgaged Lease"
Mortgaged Leases"
Mortgaged Premises"
Mortgagee"
"Note"
30
5
1
1
5
5
1
1
1
1
1
6
1
2
1.2 In addition to other definitions contained
herein and referred to in SECTION 1.1, the following terms
shall have the meanings set forth below unless the context
of this Mortgage otherwise requires:
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(i) "Agency" shall mean the Miami Beach
Development Agency.
(ii) "Business Davs" shall have the meaning
assigned to such term in the Construction Loan Agreement.
(iii) "Condominium Unit Lease" shall mean
that certain Condominium Unit Lease of even date herewith
between the Agency, as landlord, and the Mortgagor, as
tenant, recorded under Clerk's file No. ____ in the Public
Records of Dade County, Florida, as the same may be amended
or otherwise modified from time to time, which Condominium
Unit Lease relates to the Public Areas Unit (as such term is
defined in the Land Lease) .
(iv) "Condominium Documents" shall be a
collective reference to the Declaration of Condominium for
Loews Miami Beach Hotel, a Condominium of even date
herewith, recorded under Clerk's file No. in the
Public Records of Dade County, Florida, and to the exhibits
and schedules thereto, as any of the same may be amended or
otherwise modified from time to time.
(v) "Construction Loan Aareement" shall mean
the Construction Loan Agreement dated the date hereof by and
among the Mortgagor, as Borrower, Bankers Trust Company, The
Bank of Nova Scotia, NationsBank, N.A. (South), Republic
National Bank of Miami, Ocean Bank, Capital Bank and ORIX
USA Corporation, as Lenders (as such Lenders may change from
time to time, collectively, the "Lenders" and each
individually, a "Lender"), and the Mortgagee, as Agent, as
the same may be from time to time amended or otherwise
modified.
(vi) "Default" shall have the meaning given
to such term in the Construction Loan Agreement.
(vii) " Eauipment" shall mean the Building
Service Equipment and Furnishings and Furniture.
(viii) "Event of Default" shall have the
meaning given to such term in the Construction Loan Agre-
ement.
the Garage
the Agency
No.
as the same
to time.
(ix) "Garaae Easement Aareement" shall mean
Easement Agreement of even date herewith between
and the Mortgagor, recorded under Clerk's file
in the Public Records of Dade County, Florida,
may be amended or otherwise modified from time
(x) "Ground Rents" shall mean all of 'the
rents, income, proceeds, profits and other benefits paid or
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payable by the Mortgagor for using, leasing, licensing,
assessing, operating from, residing in, or otherwise
enjoying the Mortgaged Premises or any part thereof,
including any amounts payable by the Mortgagor pursuant to
the Garage Easement Agreement.
{xi} "Governmental Authorities" shall mean
all Federal, state, county, municipal and local governments
and all departments, commissions, boards, bureaus and
offices thereof, having or claiming jurisdiction over the
Mortgaged Premises or any part thereof.
(xii) "Impositions" shall mean all duties,
taxes, water and sewer rents, rates and charges, assessments
(including, but not limited to all assessments for public
improvements or benefit), charges for public utilities,
excises, levies, license and permit fees and other charges,
ordinary or extraordinary, whether foreseen or unforeseen,
of any kind and nature whatsoever, which prior to or during
the term of this Mortgage will have been or may be laid,
levied, assessed or imposed upon or become due and payable
out of or in respect of, or become a lien on the Mortgaged
Premises or any part thereof or appurtenances thereto, or
which are levied or assessed against the income received by
the Mortgagor from all or any part of the Mortgaged
Premises, by virtue of any present or future law, order or
ordinance of the United States of America or of any state,
county or local government or of any department, office or
bureau thereof or of any other Governmental Authority.
(xiii) "Land Lease" shall mean that certain
Agreement of Lease of even date herewith between the Agency,
as landlord, and the Mortgagor, as tenant, recorded under
Clerk's file No. in the Public Records of Dade
County, Florida, as the same may be amended or otherwise
modified from time to time, which Agreement of Lease relates
to the land described on EXHIBIT A hereto.
(xiv) "Leoal Rate" shall mean the
fluctuating interest rate per annum which is the lesser of
(a) two percent (2%) above the Prime Lending Rate (as such
term is defined in the Construction Loan Agreement) in
effect from time to time and (b) the maximum rate per annum
allowed by the law of the State.
(xv) "Leoal Requirements" shall mean all
present and future laws, ordinances, rules, regulations and
requirements of all Governmental Authorities, and all
orders, rules and regulations of any national or local board
of fire underwriters or other body exercising similar
functions, foreseen or unforeseen, ordinary or
extraordinary, which may be applicable to the Mortgaged
Premises, or any part thereof, or to the use or manner of
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operation of any of the foregoing, or to the owners, tenants
or occupants thereof, whether or not any such law,
ordinance, rule, regulation or requirement shall necessitate
structural changes or improvements or shall interfere with
the use or enjoyment of any of the foregoing, and shall also
mean and include all requirements of the policies of public
liability, fire and all other insurance at any time in force
with respect to any of the foregoing.
(xvi) "Loan and Security Documents" shall
have the meaning given to such term in the Construction Loan
Agreement.
(xvii) "Mortqaqor" shall mean the Mortgagor
herein named, any subsequent holder or holders of the estate
of the Mortgaged Premises or any portion thereof, and its or
their respective heirs, executors, administrators,
successors and assigns; provided, however, that nothing in
this definition shall constitute the consent of the
Mortgagee to any direct or indirect sale, lease, conveyance,
assignment or encumbrance of the Mortgaged Premises, or any
part thereof.
(xviii) "Other proiect Documents" shall
mean the Condominium Documents.
(xix) "Permitted Encumbrances" shall mean,
collectively, those liens, encumbrances and other matters
affecting title to the Mortgaged Premises (a) set forth as
exceptions to coverage on Schedule B-2 to that certain
commitment to issue a policy of title insurance issued on
the date hereof to the Mortgagee by Chicago Title Insurance
Company with respect to the Mortgage, (b) as may be
expressly permitted pursuant to the Loan and Security
Documents, and (c) as the Mortgagee, in its reasonable
discretion, may approve in writing.
(xx) "Person" shall have the meaning given
to such term in the Construction Loan Agreement.
(xxi) "proiect Documents" shall be a
reference to the Special Project Documents and the Other
Project Documents.
(xxii) "Rents" shall mean all of the rents,
revenues, income, proceeds, profits and other benefits paid
or payable by parties to the Space Leases, other than
Mortgagor, for using, leasing, licensing, possessing,
operating from, residing in, or otherwise enjoying the
Mortgaged Premises or any portion thereof, including,
without limitation, all of the proceeds, product, off-spring
or profits of the Mortgaged Premises, and all amounts paid
as rents of such Mortgaged Premises and the fees, charges,
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accounts and other payments for the use or occupancy of
rooms and other facilities in and at the Mortgaged Premises,
including all right, title and interest of Mortgagor, if
any, in and to the Space Leases (as such term is hereinafter
defined), now or hereafter entered into covering the whole
or any part of the Mortgaged Premises, and all security and
other deposits made pursuant thereto, whether existing
before or after the commencement of a case under Title 11 of
the United States Code.
(xxiii) "Secured Obliqations" shall mean (a)
the aggregate unpaid principal amount of, and accrued and
unpaid interest on, the Note evidencing the Loans made or to
be made pursuant to the Construction Loan Agreement; (b) all
commitment and other fees owing by the Mortgagor under the
Construction Loan Agreement to the Mortgagee and/or any
Lender; (c) any and all indebtedness, obligations and other
liabilities of the Mortgagor to the Mortgagee and/or any
Lender arising out of or in connection with or otherwise
relating to any of the Loan and Security Documents, and/or
any agreement(s) of the Mortgagor with the Mortgagee and/or
any Lender pertaining thereto; and (d) all sums, if any, as
may be expended or advanced by the Mortgagee and/or any
Lender in the performance of any obligation of the Mortgagor
under any of the Loan and Security Documents; in each case
whether now or hereafter existing, direct or indirect,
absolute or contingent, joint, several or independent, due
or to become due, liquidated or unliquidated, held or to be
held by the Mortgagee and/or any Lender and whether created
directly or acquired by assignment or otherwise.
(xxiv) "Soace Leases" shall mean any and all
leases, subleases, licenses, concessions or other
agreements, whether written or verbal or now or hereafter in
effect, pursuant to which the Mortgagor grants a possessory
interest in and to, or the right to use the whole or any
part of the Mortgaged Premises; provided, however, that the
Management Agreement is not a Space Lease. Notwithstanding
anything herein to the contrary, the term Space Leases shall
not include the master lease referred to in SECTION 7(g) of
the Garage Easement Agreement.
(xxv) "Soace Tenant" shall mean the tenant
or other user or occupant of the Mortgaged Premises or any
part thereof pursuant to a Space Lease.
(xxvi) "Soecial Prol ect Documents" shall
mean the Land Lease, the Condominium Unit Lease and the
Garage Easement Agreement.
(xxvii)
"State" shall mean the State of
Florida.
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(xxviii) "Substantial Completion" shall have
the meaning given to such term in the Construction Loan
Agreement.
2. INDEBTEDNESS.
2.1. The Mortgagor will pay, as and when due, the
indebtedness evidenced by the Note and secured hereby. As
used in this SECTION 2.1 and elsewhere in this Mortgage, the
term "indebtedness" shall mean and include the principal sum
of the Note, together with all interest thereon, whether now
or hereafter advanced, the other Secured Obligations, all
costs of collection provided for herein or in any of the
instruments or documents executed by the Mortgagor and
evidencing, securing or relating to the Secured Obligations,
and all other sums and charges at any time secured by or
otherwise due under this Mortgage.
3. IMPOSITIONS.
3.1. The Mortgagor will payor cause to be paid
before they become delinquent, all Impositions levied upon
the Mortgaged Premises, or any part thereof.
Notwithstanding the foregoing, if by law, any Imposition may
at the option of the taxpayer be paid in installments
(whether or not interest shall accrue on the unpaid balance
thereof), the Mortgagor may, provided that no Event of
Default shall then exist, and provided that payment in
installments would not create or cause to be created any
lien (other than the lien for such unpaid installments) on
the Mortgaged Premises, or any part thereof, cause to be
paid or to pay the same (and any accrued interest on the
unpaid balance of such Imposition) in installments as they
fall due and before any fine, penalty, further interest or
cost may be added thereto.
3.2. Except for income taxes assessed by the
United States government or the State or any political
subdivision of either or franchise or similar taxes based
upon or measured by income, the Mortgagor will pay any taxes
(including specifically all Florida documentary stamp tax
and intangible personal property tax now or hereafter
required to be paid on the Note, this Mortgage or any other
Loan and Security Document, including any interest thereon
or penalty assessed in connection-therewith) imposed on the
Mortgagee or any Lender, its or their respective successors
or assigns, by reason of its or their ownership or interest
in this Mortgage or the Note or the receipt of the interest
payable thereunder; and the Mortgagor will also pay the
whole of any tax imposed directly or indirectly on this
Mortgage or the Note in lieu of a tax on the Mortgaged
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Premises or the Improvements, whether by reason of (i) the
passage after the date of this Mortgage of any law of the
State deducting from the value of real property for the
purposes of taxation any lien thereon, (ii) any change in
the laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes or (iii) a change in
the means of collection of any such tax or otherwise.
3.3. The certificate, advice or bill of the
appropriate official designated by law to make or issue the
same or to receive payment of any Imposition, which such
certificate, advice or bill indicates the nonpayment of such
Imposition, shall be prima facie evidence that such Impos-
ition is due and unpaid at the time of the making or
issuance of such certificate, advice or bill.
3.4. The Mortgagor shall have the right after
giving notice to the Mortgagee to contest the amount or
validity, in whole or in part, of any Imposition, or to seek
a reduction in the valuation of the Mortgaged Premises or
any portion thereof as assessed for real estate, ad valorem,
intangible tax or personal property tax purposes by
appropriate proceedings diligently conducted in good faith;
and, if permitted by the Legal Requirements, during the
pendency of such contest the Mortgagor may postpone or defer
payment of such contested Imposition (but not the payment of
any monthly deposits pursuant to ARTICLE 22 hereof) and,
upon request by the Mortgagor, the Mortgagee shall postpone
or defer payment of such contested Imposition; provided,
however that the Mortgagor may so contest (and request that
the Mortgagor so postpone or defer payment) Impositions only
if:
3.4.1. Neither the Mortgaged Premises nor
any part thereof would by reason of such postponement or
deferment be in imminent danger of being forfeited or lost;
and
3.4.2. The Mortgagor shall have deposited
with the Mortgagee, cash in the amount so contested and
unpaid or, alternatively, at the Mortgagor's option, a
surety company bond or an irrevocable letter of credit (in
form reasonably satisfactory to the Mortgagee) issued by an
Institutional Lender (as such term is defined in the Land
Lease) or other security (for example, a personal guaranty
or title company indemnity) reasonably satisfactory to the
Mortgagee, in the amount so contested and unpaid, together
with all interest and penalties in connection therewith and
all charges relating to such contested Imposition that may
or might, in the Mortgagee's reasonable judgment, be
assessed against, or become a charge on, the Mortgaged
Premises or any part thereof in or during the pendency of
such proceedings. Upon the termination of any such
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proceeding (including appeals), or if the Mortgagor should
so elect, at any time prior thereto, the Mortgagor shall pay
the amount of such Imposition or part thereof as finally
determined in such proceeding (or appeal), the payment of
which may have been deferred during the prosecution of such
proceeding (or appeal), together with any costs, fees,
interest, penalties or other liabilities in connection
therewith, and upon such payment, the Mortgagee shall return
any amount (together with any interest thereon and then held
by the Mortgagee) deposited with it or such other collateral
(and not previously applied by it as hereinafter provided)
with respect to such Imposition to the Person lawfully
entitled thereto (other than the Mortgagee). Such payment,
at the request of the Mortgagor, shall be made by the
Mortgagee out of the amount deposited with it (together with
any interest thereon and then held by the Mortgagee) or such
other collateral with respect to such Imposition, to the
extent that such amount is sufficient therefor, and any
balance due shall, when required by the Legal Requirements,
be paid by the Mortgagor and any balance remaining shall be
paid with interest, if any, earned thereon to the Person
lawfully entitled thereto (other than the Mortgagee). If,
at any time during the continuance of such proceeding, the
Mortgagee shall, in its reasonable judgment, deem the amount
deposited with it or provided by bond or guaranty or such
other collateral insufficient, the Mortgagor shall, within
thirty (30) days after demand, make an additional deposit of
or increase the amount of its bond or the guaranty or such
other collateral by, such additional amount as the Mortgagee
may reasonably request to cover payment of the items set
forth in SECTION 3.4.2, and upon failure of the Mortgagor so
to do, the Mortgagee may require the amount theretofore
deposited with it (together with any interest thereon then
held by the Mortgagee) to be applied (or the Mortgagee may
require application of the bonded amount by the surety
company, if a bond has been furnished or such other
collateral) to or on account of the payment, removal or
discharge of such Imposition and the interest and penalties
in connection therewith and any costs, fees or other
liability accruing in any such proceeding, or any part of
any of the same, regardless of the effect thereof on the
Mortgagor's contest, and the balance, if any, shall be
returned to the Person lawfully entitled thereto (other than
the Mortgagee); and to the extent the amount so applied to
the Impositions is insufficient to the entire amount of the
contested Imposition and the interest and penalties in
connection therewith and any costs, fees or other liability
accruing in any such proceeding, the Mortgagor will
promptly, but in any event within thirty (30) days after the
Mortgagee's demand, pay such deficiency. If, at any time
during the continuance of such proceeding, the Mortgaged
Premises or any part thereof, is, in the reasonable judgment
of the Mortgagee, in any substantial danger of being
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forfeited or lost, the Mortgagee may require that the amount
theretofore deposited with it (together with any interest
thereon then held by the Mortgagee) be applied to the
payment of such Imposition (or the Mortgagee may require
application of the bonded amount by the surety company, if a
bond has been furnished) in the manner provided in the
preceding sentence and the Mortgagor shall pay any
deficiency when and as required by the preceding sentence.
Notwithstanding anything contained herein to the contrary,
no such deposit held by the Mortgagee, or any part thereof,
shall be returned to the Mortgagor so long as any Event of
Default shall exist.
3.5. The Mortgagor will exhibit to the Mortgagee
the original receipts or other reasonably satisfactory proof
of the payment of all Impositions within sixty (60) days
after the same are required to be paid by the Mortgagor in
compliance with SECTION 3.1 hereofi provided that if
payments are duly made to the Mortgagee under the provisions
of ARTICLE 22 hereof, so that the Mortgagee shall be placed
in funds to pay the Impositions, then the Mortgagor need not
exhibit such receipts or proofs with respect to such
Impositions, and the Mortgagee shall furnish the receipted
tax bills to the Mortgagor promptly following the payment of
the Impositions and the return to the Mortgagee of the tax
bills receipted by the taxing authorities.
4. COMPLIANCE WITH LAWS; ETC.
4.1. The Mortgagor, at its own expense, will: (i)
promptly cure or cause to be cured all violations of law
affecting the Mortgaged Premises and will comply with, or
cause to be complied with, all present and future Legal
Requirements; (ii) use and permit the use of the Mortgaged
Premises only in accordance with any applicable licenses and
permits issued by Governmental Authorities; and (iii)
procure or cause to be procured, pay for or cause others to
pay for and maintain or cause to be maintained all permits,
licenses and other governmental authorizations required to
be procured and/or maintained by the owners and/or operators
of the Mortgaged Premises for use of the Mortgaged Premises,
or any part thereof, and for the lawful and proper operation
thereof; provided, however, that with respect to the
Easement, the Mortgagor shall only be obligated, as
determined by the Mortgagor in its commercially reasonable
judgment, to enforce its rights under the Garage Easement
Agreement and thereby seek to have the Agency perform the
obligations described in this sentence which are applicable
to the Easement.
4.2. Notwithstanding the foregoing, the Mortgagor
shall have the right, after prior notice to the Mortgagee,
15
to contest by appropriate legal proceedings, diligently and
continuously conducted in good faith, the validity or appl-
ication of any Legal Requirement if and so long as the Mor-
tgagor shall promptly and from time to time furnish to the
Mortgagee a certificate to such effect showing the steps
taken and then being contemplated to comply with such
provisions provided in each case that:
4.2.1. By the terms of any such Legal
Requirement, compliance therewith pending the prosecution of
any such contest may legally be delayed without the
incurrence of any lien, charge or liability of any kind
against the Mortgaged Premises, or any part thereof, and
without subjecting the Mortgagor or the Mortgagee or any
Lender to any liability, civil or criminal, for failure so
to comply therewith until the final determination of any
such proceeding; and
4.2.2. If any lien, charge or civil
liability would be incurred by reason of any such contest or
deferral with compliance, such contest of, or delay or
deferral in, compliance would not subject the Mortgagee or
any Lender to criminal liability and the Mortgagor (i)
furnishes to the Mortgagee security reasonably satisfactory
to the Mortgagee against loss or injury to the Mortgagee and
each Lender by reason of such contest, delay or deferral and
(ii) prosecutes the contest with due diligence.
Notwithstanding the foregoing, if any delay in compliance
with any Legal Requirement shall, in the reasonable judgment
of the Mortgagee, place all or any part of the Mortgaged
Premises in imminent danger of being forfeited or lost, the
Mortgagor shall, upon reasonable notice (which shall in no
event be less than ten (10) days notice) from the Mortgagee,
immediately comply with such Legal Requirement.
5. INSURANCE; ETC.
5.1. At all times prior to Substantial Completion,
the Mortgagor, subject to SECTION 5.3, shall at its own
expense at all times maintain or cause to be maintained on
all of the Mortgaged Premises, insurance policies covering
all the Mortgaged Premises written on an "All Risk Builders
Risk Completed Value Non-Reporting" basis which shall
include loss or damage from the perils of fire, lightning
and such other perils, risks and hazards as are provided
under the then current standard "All Risk of Physical Loss
or Damage" coverage forms including the peril of collapse
and such other hazard insurance coverage as the Mortgagee
shall reasonably require. Commencing with the earlier to
occur of Substantial Completion or a Space Tenant taking
occupancy of any portion of the Mortgaged Premises, such
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insurance shall contain the provisions that "permission is
hereby granted to complete and/or occupy." Such policy or
policies shall contain a stated value endorsement so that no
co-insurance provision shall be applicable with respect to
any loss. The Mortgagor shall also provide the Mortgagee
with satisfactory evidence of the existence of required
insurance policies and premiums prepaid including
comprehensive general liability (with bodily injury,
property damage, personal injury and contractual coverage),
workers compensation insurance for all its employees' and
employer's liability insurance. In addition, the Mortgagor
shall procure and furnish evidence of such other insurance
as the Mortgagee may reasonably require. For the purposes
of this SECTION 5.1, the following amounts of insurance
coverage with respect to the risk set forth opposite said
amounts shall be deemed to comply with the foregoing
provisions unless and until varied by the Mortgagee as
provided in SECTION 5.3:
BUILDER'S RISK INSURANCE
(all risks coverage,
completed value form)
- 100% replacement value
WINDSTORMS
- to the extent commercially
available and
reasonably approved by
the Mortgagee
WORKMEN'S COMPENSATION
statutory limits
EMPLOYER'S LIABILITY INSURANCE
$100,000 minimum
COMPREHENSIVE GENERAL LIABILITY
(including personal injury,
and automobile liability
covering the Mortgagor and
the general contractor)
- $50,000,000 combined
single limit and per
project annual
aggregate
FLOOD INSURANCE
To the extent
commercially available,
satisfactory policies of
flood insurance in
amounts, and with
customary deductible,
reasonably satisfactory
to the Mortgagee, but in
no event less than the
maximum limits available
under the federal flood
insurance program
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5.2. At all other times and until the
indebtedness secured hereby is paid in full, the Mortgagor,
subject to SECTION 5.3, shall at its own expense at all
times maintain or cause to be maintained on all of the
Mortgaged Premises (a) comprehensive general liability
insurance (including blanket contractual liability
insurance, garage liability, innkeeper's liability (subject
to statutory limits), products liability and elevator
liability) covering all claims for bodily injury, including
death, or property damage occurring on, in or about the
Mortgaged Premises in an amount not less than $50,000,000
combined single limit for personal injury, bodily injury and
property damage in respect to anyone occurrence and during
any period of substantial alterations or improvements in, on
or to the Mortgaged Premises, the Mortgagor will cause to
have the comprehensive general liability insurance,
including umbrella liability insurance, endorsed to provide
owners' and contractors' protective liability coverage,
including completed operations liability coverage; (b)
physical damage insurance covering the Mortgaged Premises
for loss or damages resulting from the perils of fire,
lightning and such other risks and hazards as are provided
under the then current standard "Extended Coverage Endors-
ement" and vandalism and malicious mischief coverage, for
the full replacement value of the Improvements, including,
to the extent commercially available and reasonably approved
by the Mortgagee, windstorm insurance; the insurance
required by this subsection (b) may provide for a deductible
of, with respect to other than windstorm or flood insurance,
not more than $100,000 (with such greater amounts as a
reasonably prudent owner or lessee of buildings and
improvements similar in type and location to the Mortgaged
Premises would have, which amounts must otherwise be
reasonably satisfactory to the Mortgagee) of loss per
occurrence shall be excluded or deductible in the
computation of loss thereunder; (c) if the Mortgaged
Premises is in an area identified as a flood hazard area by
the Secretary of Housing and Urban Development, flood
insurance, to the extent commercially available, in amounts
required under SECTION 5.1; (d) boiler and machinery
insurance covering all boilers, machinery, air conditioning,
pressure vessels, and similar type equipment commonly
covered under a broad-form boiler and machinery policy, in
an amount reasonably satisfactory to the Mortgagee; (e)
insurance on Furnishings and Furniture against loss or
damage by reason of any hazard referred to in clauses (b),
(c) and (d) of this SECTION 5.2 in an amount equal to the
full replacement value thereof (subject however in the case
of loss due to flood hazards to the limits referred to in
clause (c)); and (f) business interruption coverage in an
amount sufficient to pay all Impositions, insurance
premiums, Ground Rents, interest and principal installments
due on the Note other than at maturity and all other amounts
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payable under the Note and this Mortgage and the normal
operating expenses of the Mortgaged Premises, all for a
period of one year. All such insurance (except the
insurance specified in clause (a) of SECTION 5.2) shall be
payable to the Mortgagee and be held, applied or disbursed
by the Mortgagee as provided in SECTIONS 5.10, 5.11 and
5.12.
5.3. Without limiting the Mortgagee's rights or
the Mortgagor's obligations under SECTIONS 5.1 or 5.2, the
Mortgagee may vary the required amounts and types of
coverage set forth in SECTIONS 5.1 and 5.2 or require other
insurance upon at least thirty (30) days notice to the
Mortgagor, but the Mortgagee may so vary the required
insurance or the amounts thereof only if such required
amounts and types or other insurance coverage is available
at commercially reasonable rates, with customary
deductibles, and is then generally carried by prudent owners
or lessees of ocean front hotel properties in South Florida
of a size, nature and character similar in size, nature and
character to the Improvements, Building Service Equipment
and Furnishings and Furniture. The Mortgagor agrees to
obtain insurance coverage complying with such notice by the
date set forth therein, which date shall not be less than
thirty (30) days after such notice. The Mortgagor will give
the Mortgagee prior written notice of any decrease in the
amount of, or increase in the deductible applicable to,
windstorm or flood insurance, but such notice or the
Mortgagee's failure to respond thereto shall not constitute
the Mortgagee's approval of such lower amounts of insurance
or higher deductibles or relieve the Mortgagor of the
obligation to comply with the provisions of this ARTICLE.
The Mortgagor shall have the right to maintain, and the
Mortgagee shall have the right to approve, such approval not
to be unreasonably withheld, delayed or conditioned,
commercially reasonable deductibles with respect to the
insurance required by this ARTICLE.
5.4. All insurance required in SECTIONS 5.1, 5.2
and 5.3 shall be evidenced by valid and enforceable
policies, in form and substance, and issued by and distr-
ibuted among insurers of recognized responsibility, licensed
or authorized to be business in the State and having a
Best's rating and a financial size category of A:X or better
or another comparable rating reasonably acceptable to the
Mortgagee considering market conditions. Concurrently with
the execution and delivery of this Mortgage, the Mortgagor
shall cause to be delivered to the Mortgagee, at the option
of the Mortgagee, either the originals of all such policies
(which shall have terms of not less than one year), or
certified true and complete copies or certificates or
binders thereof. Thereafter, all renewal or replacement
policies, or certified true and complete copies or certi-
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ficates or binders thereof, shall be delivered to the
Mortgagee not less than thirty (30) days prior to the
expiration date of the policy or policies to be renewed or
replaced, in each case accompanied by evidence reasonably
satisfactory to the Mortgagee that all premiums currently
payable with respect to such policies have been paid in full
by or at the direction of the Mortgagor.
5.5. All such insurance policies shall (a) pr-
ovide as follows: (i) the insureds named therein shall be
the Mortgagee and the Mortgagor, as their respective
interests may appear; (ii) all losses payable thereunder
with respect to the Improvements and the Equipment shall be
payable directly to the Mortgagee (rather than to any of the
other insureds and the Mortgagee jointly) pursuant to a
standard mortgagee clause naming the Mortgagee, without co-
ntribution, as the loss payable party, such provision to be
in form and substance reasonably satisfactory to the
Mortgagee and such proceeds of loss to be held and applied
by the Mortgagee, as provided in SECTION 5.8 (except that
losses not exceeding $1,000,000 shall be payable only to the
Mortgagor); and (iii) all losses thereunder shall be
adjusted by the Mortgagor; provided that in no event shall
the Mortgagor approve or consent to any final adjustment in
any amount exceeding $1,000,000 without obtaining the
Mortgagee's prior written approval of the amount of such
adjustment, which approval will not be unreasonable
withheld, delayed or conditioned (provided, however, that if
an Event of Default is then continuing and a receiver has
not been appointed, such amount shall be reduced to $500,000
and, if a receiver has been appointed, then the Mortgagor
shall have no further right to adjust claims); (b) provide
that such policies may not be cancelled, non-renewed or
amended without at least thirty (30) days' prior written
notice to the Mortgagee; (c) provide that no act, omission
or negligence of the Mortgagor, or its agents, servants or
employees, or any Space Tenant under any Space Lease or any
other occupant of the Mortgaged Premises which might
otherwise result in a forfeiture of such insurance or any
part thereof, shall in any way affect the validity or
enforceability of such insurance insofar as the Mortgagee is
concerned. If, notwithstanding the provisions of SECTION
5.5(a) (ii), any such insurance proceeds are made payable to
the Mortgagor, rather than the Mortgagee as is required, the
Mortgagor hereby appoints the Mortgagee as its
attorney-in-fact, irrevocably and coupled with an interest,
to endorse and/or transfer any such payment to the
Mortgagee. The Mortgagor may obtain for its own account any
insurance not required under the provisions of SECTIONS 5.1,
5.2 and/or 5.3, but any insurance so obtained by the
Mortgagor on any part of the Mortgaged Premises, whether or
not required under this Mortgage, shall be for the mutual
benefit of the Mortgagee and the Mortgagor and shall be
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subject to all other provisions of this Mortgage. The
policy or policies of insurance of the character described
in SECTIONS 5.1 or 5.2 or required pursuant to SECTION 5.3
may consist of blanket policies insuring the Mortgaged
Premises and other property of the Mortgagor; provided that
such policy or policies shall set forth the amount of
insurance in force thereunder applicable to the Mortgaged
Premises, Improvements and Equipment and shall otherwise
comply with the provisions of this Mortgage and shall
afford the same protections to the Mortgagee as would be
provided by policies individually applicable to the
Mortgaged Premises.
5.6. The Mortgagor, at its expense, will furnish
to the Mortgagee, within ninety (90) days after demand (but
not more frequently than once in each consecutive period of
twelve (12) calendar months), proof of the then Replacement
Value (as such term is defined in the Land Lease) of the
Improvements and the Equipment therein, such proof to be
sufficient for the insurer to establish the replacement
value thereof in connection with the policies issued by such
insurer. No failure or omission on the part of the
Mortgagee to request any such proof shall relieve the Mor-
tgagor of any of its obligations under this ARTICLE 5.
5.7. If the Mortgagee shall, by any means,
acquire the title or estate of the Mortgagor in or to the
whole or any portion of the Mortgaged Premises, it shall
thereupon become the sole and absolute owner of all
insurance policies (except for any blanket insurance
policies) affecting such portion of the Mortgaged Premises
held by or required hereunder to be delivered to the
Mortgagee, with the sole right to collect and retain all
unearned premiums thereon, if any; and the Mortgagor shall
be entitled only to a credit in reduction of the then ou-
tstanding indebtedness secured hereby in the amount of the
pro-rata or short rate cancellation refund, when, if and as
received by the Mortgagee. The Mortgagor agrees, promptly
(but in any event within ten (10) Business Days) upon
demand, to execute and deliver such assignments or other
authorizations or instruments as may, in the reasonable
opinion of the Mortgagee, be necessary or desirable to
effectuate any of the provisions of this SECTION 5.7.
5.8. If any of the Improvements, Building Service
Equipment or Furnishings or Furniture shall be damaged or
destroyed, in whole or in part, by fire or other casualty
and the estimated cost of restoration, replacement or
rebuilding is in excess of $500,000, the Mortgagor shall
give prompt notice thereof to the Mortgagee. In the event
of any fire or other casualty, the Mortgagor shall, without
regard to the availability or adequacy of insurance proceeds
and within the time period allowed under SECTION 8.2{b) of
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the Land Lease, restore, replace or rebuild the same as
nearly as possible to the condition, character and value
thereof existing immediately prior to such damage or
destruction. If the Mortgagee receives any insurance
proceeds in respect of such damage or destruction, or any
Award for a partial taking which is not a Taking of
substantially all of the Premises, as such terms are
referred to in SECTION 9.3 hereof, these proceeds may, at
the option of the Mortgagee, either (i) be applied, to the
extent of such proceeds, as a prepayment of the unpaid
balance of the principal of the Note, of accrued and unpaid
interest thereon and/or of any other Secured Obligation, or
(ii) be made available to payor reimburse costs incurred
for reparation, restoration, replacement or rebuilding
necessitated as a result of such damage or destruction, or
as a result of such Taking, as the case may be, or (iii) be
used for any other purpose or object deemed appropriate by
the Mortgagee in connection with the Mortgaged Premises;
provided, however, that the Mortgagee shall not elect either
option (i) or (iii) above for so long as either (I) the
Project Documents shall require that such proceeds be
applied to the restoration, replacement or rebuilding of the
Improvements, Building Service Equipment or Furnishings or
Furniture or (II) (a) no Event of Default hereunder has
occurred and is continuing; (b) if the casualty or taking
occurs prior to Substantial Completion, in Mortgagee's
reasonable judgment the restoration, replacement or
rebuilding can be completed in accordance with sound
construction practice on or before the Completion Date (as
such term is defined in the Construction Loan Agreement and
giving effect to extensions of the Completion Date by reason
of such event of Force Majeure as permitted by the
Construction Loan Agreement); (c) the balance of the
insurance proceeds or such Award either initially paid to
the Mortgagee, or remaining from time to time, shall be
sufficient, in the Mortgagee's reasonable judgment, to
complete the restoration, replacement or rebuilding, or the
Mortgagor shall have deposited with the Mortgagee funds
equal to the amount of such deficiency with instructions to
disburse such funds hereunder as though such funds were
insurance proceeds or the Award, as the case may be; (d) the
Management Agreement (as such term is defined in the
Construction Loan Agreement) is then and at all times during
such restoration, replacement or rebuilding in Full Force
and Effect (as such term is defined in the Construction Loan
Agreement) and is not terminated as a result of such
casualty or taking; and (e) in the reasonable judgment of
the Mortgagee, exercisable from time to time, the
Improvements can be restored in accordance with sound
construction practice such that the Hotel Manager (as such
term is defined in the Construction Loan Agreement) would
not be entitled to cancel the Management Agreement as a
result of such casualty or taking or the Hotel Manager has
22
irrevocably elected not to so cancel the Management
Agreement in a writing in form and substance reasonably
satisfactory to the Mortgagee and delivered to the Mortgagee
within thirty (30) Business Days after the occurrence of
such casualty or taking.
5.9. Prior to Substantial Completion, any such
insurance proceeds or Award (whether held by the Mortgagor
or the Mortgagee) which are to be applied to the
restoration, replacement or rebuilding of the Mortgaged
Premises shall, after payment or reimbursement to the
Mortgagee of all costs and expenses of the Mortgagee in
collecting such proceeds or Award, be so applied to such
restoration, replacement or rebuilding in accordance with
the terms, provisions and conditions for construction
advances contained in the Construction Loan Agreement
(including SECTION 4.5 thereof), as though such sums were to
be advanced thereunder, and substantially in accordance with
the Plans (as such term is used in the Construction Loan
Agreement), but the provisions of this SECTION 5.9 shall not
entitle the Mortgagee to hold any insurance proceeds or
Award which, pursuant to the other provisions of this
Mortgage, the Mortgagee is not permitted to hold.
5.10. After Substantial Completion, any such
insurance proceeds or Award which are to be applied to
restoration, replacement or rebuilding of the Mortgaged
Premises shall, after payment or reimbursement to the Mor-
tgagee of all costs and expenses of the Mortgagee in
collecting such proceeds or Award, be so applied upon sati-
sfaction of the following provisions and conditions:
(a) If the damage be of such nature as to
require the Mortgagor to construct a replacement for, or to
alter in any material or substantial way, the damaged or
destroyed items, the Mortgagor shall, before commencing any
such work, submit copies of the plans and specifications
therefor to the Mortgagee for the Mortgagee's approval,
which approval shall not be unreasonably withheld, delayed
or conditioned; provided, however, that such approval by the
Mortgagee shall not be required if (x) the Mortgagor is
making a replacement substantially in accordance with the
final approved plans and specifications for the initial
construction of the Improvements and (y) the approval of the
landlord under the Land Lease for such work is either not
required or is obtained.
(b) If after payment or reimbursement to the
Mortgagee of all costs and expenses of the Mortgagee in
collecting such insurance proceeds or Award, the aggregate
insurance proceeds or Award received by reason of any single
instance of such damage or destruction or condemnation, as
the case may be, shall be $1,000,000 or less, such insurance
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proceeds or Award shall be paid to the Mortgagor, who shall
hold all amounts so received in trust for application first
to pay the entire cost of repairing, restoring or rebuilding
or replacing the damaged or destroyed or taken items, before
any portion of such proceeds may be used or applied for any
other purpose. If the aggregate net insurance proceeds or
Award by reason of any single instance of such damage or
destruction or condemnation, as the case may be, shall be
more than $1,000,000 such sums shall be held and disbursed
by the Mortgagee in accordance with the following provisions
of this SECTION.
(c) The Mortgagee shall have received as to
each such disbursement a certificate of the Mortgagor (i)
requesting the payment of a specified amount of such
insurance or condemnation proceeds; (ii) describing in
reasonable detail the work and materials applied to the
repairing, restoration, replacement or rebuilding of the
damaged, destroyed or taken items since the date of the last
such certificate; (iii) stating that the requested amount
does not exceed the cost of such work and materials; and
(iv) stating that a request for payment for such work and
materials has not previously been made; accompanied by
(d) a certificate of an independent engineer
or architect designated by the Mortgagor, who shall have
been approved in writing by the Mortgagee, such approval not
to be unreasonably withheld, delayed or conditioned, stating
(i) that the work and materials described in the
accompanying certificate of the Mortgagor were
satisfactorily performed and furnished and were necessary,
appropriate or desirable to the restoration, replacement or
rebuilding of the damaged, destroyed or taken items; (ii)
that the amount specified in such certificate of the
Mortgagor does not exceed the reasonable cost of such work
and materials; and (iii) the additional amount, if any,
required to complete the repair, restoration, replacement or
rebuilding of the damaged, destroyed or taken items;
accompanied by
(e) evidence reasonably satisfactory to the
Mortgagee (i) that there exists no filed or recorded lien,
or lien notice, or encumbrance or charge in respect of all
or any part of the Mortgaged Premises, except as may be
permitted in the Permitted Encumbrances or unless the same
has been discharged of record pursuant to ARTICLE 8 hereof;
(ii) that neither the Mortgaged Premises nor any part
thereof is subject to any recorded or filed mechanic's,
laborer's, materialman's or any similar lien, encumbrance or
charge, unless the same has been discharged of record
pursuant to ARTICLE 8 hereof; and (iii) that, except as
expressly permitted in the Loan and Security Documents, none
of the Equipment provided in connection with such repair,
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restoration, replacement or rebuilding is subject to any
security interest other than in favor of the Mortgagee;
then, the Mortgagee shall pay to the Mortgagor the amount of
such insurance or condemnation proceeds requested in such
certificate of the Mortgagor; provided, however, that,
subject to the provisions of SECTION 5.16, in no event shall
the balance of insurance or condemnation proceeds held by
the Mortgagee be reduced below the amount the Mortgagee
reasonably determines is the amount required to complete the
repair, restoration, replacement or rebuilding of the
damaged, destroyed or taken Improvement, Building Service
Equipment and/or Furnishings and Furniture. Each such
payment shall be held by the Mortgagor in trust and shall be
used solely for the payment of the cost of the work and
materials described in the certificate of the Mortgagor, or
if such cost or any part thereof has theretofore been paid
by the Mortgagor out of its own funds, then for the rei-
mbursement to the Mortgagor of any such cost or part
thereof paid by it. Any balance of insurance proceeds held
by the Mortgagee after the completion of the restoration,
replacement or rebuilding and payment of all costs incurred
in connection therewith, to be evidenced by a certificate to
such effect of such independent engineer or architect
delivered to the Mortgagee, shall, if no Event of Default
shall have occurred and be continuing, be released to the
Person lawfully entitled thereto (other than the Mortgagee)
In connection with any restoration, replacement or
rebuilding to be performed pursuant to this SECTION, the
Mortgagee shall be allowed to retain a construction
consultant to perform such services in connection with the
restoration, replacement or rebuilding as the Mortgagee may
reasonably require, and the Mortgagor shall, within thirty
(30) days of demand, pay the reasonable fees and
disbursements of such consultant.
5.11. All proceeds of business interruption
insurance payable as a result of the occurrence of any fire
or other casualty which affects the Mortgaged Premises, or
any part thereof, shall, if in excess of $500,000 or if an
Event of Default shall have occurred and be continuing, be
paid to the Mortgagee, and in all other situations such
insurance proceeds shall be paid to the Mortgagor. The
party receiving such insurance proceeds shall hold such pr-
oceeds in trust (and if held by the Mortgagee the same shall
be held in an interest bearing account) and shall apply or
cause such proceeds to be applied to the payment of those
items referred to in SECTION 5.2(f) which become, and as
they become, due and payable from and after the date of the
occurrence of such damage or loss, until the completion of
the necessary restoration or replacement by the Mortgagor or
until the exhaustion of such proceeds, whichever first
occurs. Upon completion of such restoration or replacement,
any balance of such business interruption insurance proceeds
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in the hands of the Mortgagee shall, provided that no Event
of Default shall have occurred and be continuing, be paid to
the Person lawfully entitled thereto (other than the
Mortgagee) .
5.12. Nothing in this ARTICLE 5 contained shall
(i) relieve the Mortgagor of its duty to repair, restore,
rebuild or replace the Improvements, Building Service Equi-
pment and/or Furnishings and Furniture following damage or
destruction by fire or other casualty or Taking in the event
that no Award or an inadequate Award or that no or
inadequate proceeds of insurance are available to defray the
cost of such restoring, rebuilding or replacement, or (ii)
relieve the Mortgagor or any other Person of its obligations
under the Loan and Security Documents, except if, and to the
extent that, any proceeds of business interruption insurance
are applied by the Mortgagee in accordance with SECTION 5.11
to such required payments.
5.13. Except where SECTION 5.8(1) is applicable,
if, while any insurance proceeds or Award is/are being held
by the Mortgagee, an Event of Default shall occur, the
Mortgagee shall be entitled to receive and apply all such
insurance proceeds or Award in reduction of the indebtedness
and other obligations secured by this Mortgage, in such
order and respective amounts, as the Mortgagee in its
discretion shall determine. All monies held by the
Mortgagee under this ARTICLE 5 shall be held subject to a
first priority security interest securing the Secured
Obligations, which security interest the Mortgagor hereby
grants to the Mortgagee for the ratable benefit of the
Lenders.
5.14. Notwithstanding anything herein or in any
of the Loan and Security Documents to the contrary (other
than SECTION 5.11 hereof which shall govern with respect to
the proceeds of business interruption insurance so long as
Base Rent (as such term is defined in the Land Lease) are
first paid to the landlord under the Land Lease), the
Mortgagee hereby agrees that all proceeds of any insurance
are to be applied as provided in the Land Lease, but if such
proceeds are not, pursuant to the Land Lease, to be applied
to a Casualty Restoration (as such term is defined in the
Land Lease), then the Mortgagee may, if an Event of Default
has occurred and is continuing, apply such monies to the
Secured Obligations, so long as the proceeds of business
interruption insurance shall first be applied to such Base
Rent; provided, however, to the extent that the "Owner"
under the Land Lease is an Affiliate (as such term is
defined in the Construction Loan Agreement) of the Mortgagor
or the Mortgagor has acquired the interest of the "Owner"
under the Land Lease, then provisions of this ARTICLE 5
shall apply without regard to the terms of the Land Lease.
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5.15. The Mortgagor and the Mortgagee agree that
the provisions of SECTIONS 5.9, 5.10 and 5.11 (but only to
the extent they impose requirements for documentation
regarding a Casualty Restoration in addition to those set
forth in the Land Lease) are provisions which the Mortgagee,
pursuant to SECTION 8.3(a) (iii) of the Land Lease,
reasonably requires.
5.16. If the estimated cost of any restoration,
replacement or rebuilding to be undertaken (after
Substantial Completion) pursuant to this ARTICLE 5, as
reasonably determined by the Mortgagee, shall exceed the
amount of insurance proceeds or Award, as the case may be,
available therefor, the amount of the excess, if in excess
of $250,000, shall be paid to the Mortgagee, prior to
beginning any of the restoration, replacement or rebuilding
or such amount shall be assured by letter of credit or other
security reasonably acceptable to the Mortgagee, which
amount must be received by the Mortgagee prior to the
beginning of any of such work. The amount so held by the
Mortgagee shall be disbursed, after the application of any
insurance proceeds or Award, in accordance with SECTION
5.10.
5.17. Nothing in this ARTICLE 5 shall require the
Mortgagor to provide, or cause to be provided, insurance in
respect of the Easement (or the related garage structure) .
5.18. Mortgagor shall not take out or permit the
Hotel Operator to take out separate insurance concurrent in
form or contributing in the event of loss with that required
to be maintained under this Mortgage, or any umbrella or
blanket liability or property policy, unless, in each case,
the Mortgagee is included thereon as an additional insured
(and, in the case of property insurance policies, with loss
payable (subject to the other provisions of this ARTICLE) to
the Mortgagee under a standard mortgagee endorsement of the
character above described). The Mortgagor shall promptly
notify the Mortgagee whenever any such separate, umbrella or
blanket insurance is taken out and shall promptly deliver to
the Mortgagee a certified copy of the policy or policies of
such insurance. Any blanket insurance policy shall
specifically allocate to the Mortgaged Premises the amount
of coverage from time to time required hereunder and shall
otherwise provide the same protection as would a separate
policy insuring only the Mortgaged Property in compliance
with the provisions of this Mortgage.
6. ALTERATIONS; DEMOLITION; ETC.
6.1. Prior to Substantial Completion, neither the
Mortgaged Premises nor any part thereof shall be altered,
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removed or demolished except in accordance with the terms,
provlslons and conditions of the Construction Loan
Agreement. After Substantial Completion, the Mortgagor
shall not demolish, replace or alter the Mortgaged Premises,
or any part thereof, or make any addition thereto, or
construct any additional improvements thereon, or suffer any
of the same to occur, whether structural or otherwise, and
whether voluntarily or in connection with a repair, restor-
ation, replacement or rebuilding required by any of the Loan
and Security Documents (collectively, "change") or
otherwise, except that, subject to the remaining provisions
of the Loan and Security Documents, the Mortgagor may, if no
Event of Default has occurred and is continuing, make
Permitted Alterations; provided, however, that no Permitted
Alteration shall, without the prior written consent of the
Mortgagee, effect a change which would materially diminish
the value of the Mortgaged Premises.
"Permitted Alterations" shall mean (i) the
construction required by, and to be performed in accordance
with the terms of, the Construction Loan Agreement or any
other Loan and Security Document and (ii) any Alteration (as
such term is defined in the Land Lease) permitted under
SECTION 14.6 of the Land Lease, except that any bond or
collateral as described in SECTION 14.6(a) (iii) must be
reasonably satisfactory to the Mortgagee and any Major
Alteration (as defined in SECTION 14.6(a) (vii) of the Land
Lease) must be approved by the Mortgagee, such approval not
to be unreasonably withheld, delayed or conditioned.
6.2. As a condition to performing any change
requiring the approval of the Mortgagee, the Mortgagee may
require that plans and specifications for the proposed work,
prepared by a reputable architect reasonably satisfactory to
the Mortgagee, be submitted to the Mortgagee for approval,
which approval shall not be unreasonably withheld, delayed
or conditioned. If the Mortgagee's approval of a change is
not required, then the Mortgagor will, promptly following
the Mortgagee's request, deliver any plans and
specifications for such change to the Mortgagee. Whether or
not any such proposed work requires the Mortgagee's consent,
(i) all work performed by the Mortgagor shall be completed
with all reasonable diligence and continuity, in a good and
workmanlike manner, and comply with all applicable Legal
Requirements, (ii) unless, and to the extent that, the
provisions of SECTION 6.3 are applicable, no Building
Service Equipment or Furnishings and Furniture shall be
removed from the Mortgaged Premises during the course of any
work unless provision is made for return or replacement
thereof on or prior to the completion of the work, (iii) a
duplicate set of all plans and specifications required to be
filed with any Governmental Authority prior to, or at any
time in connection with, any such alteration, demolition or
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new construction shall be furnished to the Mortgagee prior
to the time that any such plans and specifications are filed
with any Governmental Authority and (iv) the Mortgagor will
pay on demand the reasonable expenses incurred by Mortgagee
in the review of plans and specifications provided for in
this Mortgage.
6.3. The Mortgagor shall have the right, after
Substantial Completion, at any time and from time to time,
to remove and dispose of any item of Building Service
Equipment or Furnishings and Furniture (a) in the ordinary
course of its business, (b) as part of a program to upgrade
the same, (c) which may have become obsolete or unfit for
use or (d) which is no longer useful in the operation of the
Improvements, provided that the Mortgagor promptly replaces
such item with other Building Service Equipment or
Furnishings and Furniture which is either free of superior
title, liens or claims (other than in favor of the
Mortgagee) or has been leased as permitted in SECTION 6.32
of the Construction Loan Agreement, in each case not
necessarily of the same character but of at least equal
quality, value and usefulness in connection with the oper-
ation and maintenance of the Mortgaged Premises; provided,
however, that no removal of any item or category of Building
Service Equipment or Furnishings and Furniture then having a
fair market value of $300,000 (in any calendar year) or more
which is not promptly replaced shall be made without the
prior written consent of the Mortgagee, such consent not to
be unreasonably withheld, delayed or conditioned, and that
the limitations of this provision shall not be applicable to
expenditures from the FF&E Reserve Account (as such term is
defined in the Land Lease). However, if by reason of
technological or other developments in the operation and
maintenance of buildings and other improvements of the
general character of the Improvements or a change in the use
of the Mortgaged Premises or any part thereof, no replace-
ment of the Building Service Equipment or Furnishings and
Furniture so removed would be necessary or desirable for the
proper operation or maintenance of the Improvements, the
Mortgagor shall not be required to replace the item so
removed.
7. SALE; ASSIGNMENT; MORTGAGING; ETC.
7.1. The Mortgagor shall not (a) acquire any other
ventures or undertake any other developments or enter into
any other business or activities other than relating to the
ownership and operations of the Mortgaged Premises, or (b)
enter into any agreement for the (i) sale, transfer,
encumbrance or conveyance of title to the Mortgaged Premises
(other than personal property in the ordinary course of the
Mortgagor's business) or any part thereof or interest of
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Mortgagor therein, or (ii) lease (except for leases
permitted under SECTION 6.3 of the Construction Loan
Agreement and for hotel rooms, ballrooms, conference and
banquet room, meeting and function facilities, and rentals
of other facilities consistent with the ordinary course of
the Mortgagor's business) of all or substantially all of the
Mortgaged Premises or (c) (i) sell, transfer, encumber or
convey, in any manner whatsoever, whether voluntarily or by
operation of law, title to the Mortgaged Premises (other
than personal property in the ordinary course of Mortgagor's
business), or any part thereof or interest of the Mortgagor
therein or (ii) lease (except for leases permitted under
SECTION 6.3 of the Construction Loan Agreement and for
rentals of hotel rooms, conference and banquet room, meeting
and function facilities and rentals of other facilities
consistent with the ordinary course of the Mortgagor's
business) all or substantially all of the Mortgaged
Premises. In no event, however, shall this SECTION restrict
or be deemed to restrict (i) the right of the Mortgagor's
shareholders to acquire other ventures or undertake other
developments, or (ii) the Mortgagor's right to acquire the
fee estate in and to the Land (as such term is defined in
the Land Lease) pursuant to ARTICLE 36 of the Land Lease.
This SECTION shall further not be deemed to prohibit the
creation of easements affecting the Mortgaged Premises which
are submitted to the Mortgagee prior to the execution
thereof by the Mortgagor accompanied by a drawing or survey
showing the location thereof, and as to which Agent has
granted its approval, which approval shall not be
unreasonably withheld, delayed or conditioned.
7.2. The Mortgagee has specifically relied upon
the particular financial status, abilities and management of
the Mortgagor in providing the financial accommodations to
the Mortgagor described herein. The advances evidenced by
the Note would, furthermore, not have been made if the
Mortgaged Premises were not under the ownership of the Mor-
tgagor. Accordingly, the adequacy of the Mortgagee's
security depends upon the Mortgagor continuing to hold and
own its estate in the Mortgaged Premises until the
indebtedness has been paid in full. Therefore, if the
Mortgagor shall violate any of the terms and provisions of
SECTION 7.1 hereof, in addition to all other rights and
remedies available to the Mortgagee under this Mortgage and
the other Loan and Security Documents, the Mortgagee shall
have the option of declaring the entire unpaid principal
balance of the Note, together with all accrued and unpaid
interest and all other sums and charges evidenced thereby,
immediately due and payable.
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8. PRIORITY OF LIEN; NO MERGER
8.1. This Mortgage is and will be maintained as a
valid mortgage lien on the Mortgaged Premises, subject only
to the Permitted Encumbrances, and the Mortgagor will not,
directly or indirectly, create or suffer or permit to be
created, or to stand against the Mortgaged Premises, or any
portion thereof, or against the rents, issues and profits
therefrom, and will promptly discharge, any lien or charge
or any pledge or other encumbrance on the Mortgaged
Premises, other than the Permitted Encumbrances; provided,
however, that nothing herein contained shall require the
Mortgagor to payor cause to be paid any Imposition prior to
the time required under the Loan and Security Documents.
The Mortgagor will keep and maintain the Mortgaged Premises,
and every part thereof, free from all liens of persons
supplying labor and materials in connection with the
construction, alteration, repair, improvement or replacement
of the Improvements or of the Equipment; provided, however,
that it shall not be an Event of Default under the Loan and
Security Documents if any such liens shall be filed against
the Mortgaged Premises, or any part thereof, and the
Mortgagor discharges the same of record, by payment, bonding
or otherwise, within sixty (60) days after the filing
thereof, or deposits with the Mortgagee, cash in the amount
so contested and unpaid or, alternatively, at the
Mortgagor's option, a surety company bond or an irrevocable
letter of credit (in form reasonably satisfactory to the
Mortgagee) issued by an Institutional Lender (as such term
is defined in the Land Lease) or other security (for
example, a personal guaranty or title company indemnity)
reasonably satisfactory to the Mortgagee, in each case in
the amount so contested and unpaid, together with all
interest and penalties in connection therewith and all
charges relating to such contested lien that mayor might,
in the Mortgagee's reasonable judgment, be assessed against,
or become a charge on, the Mortgaged Premises or any part
thereof in or during the pendency of such proceedings. The
Mortgagor shall exhibit to the Mortgagee within fifteen (15)
days of written request all receipts or other satisfactory
evidence of the payment of taxes, assessments, charges,
claims, liens or any other item which may cause any such
lien to be filed against the Mortgaged Premises.
8.2. It is the intention of the parties hereto
that if the Mortgagee shall at any time hereafter acquire
title to all or any portion of the Mortgaged Premises, the
interest of the Mortgagee hereunder and the lien of this
Mortgage shall not merge or become merged in or with the
estate and interest of the Mortgagee as holder and owner of
title to all or any portion of the Mortgaged Premises and
that the estate of the Mortgagee in the Mortgaged Premises
and the lien of this Mortgage and the interest of the
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Mortgagee hereunder shall continue in full force and effect
to the same extent as if the Mortgagee had not acquired
title to all or any portion of the Mortgaged Premises.
9. CONDEMNATION
9.1. The Mortgagor shall promptly notify the
Mortgagee of written notice to it of the institution of any
proceeding or negotiations for the Taking (as hereinafter
defined) of the Mortgaged Premises, or any part thereof,
whether for permanent or temporary use and occupancy, in
condemnation or by the exercise of the power of eminent
domain or by agreement of interested parties in lieu of such
condemnation (all of the foregoing called a "Takinqll)i shall
keep the Mortgagee currently advised, in reasonable detail,
as to the status of such proceedings or negotiations and
will promptly give to the Mortgagee copies of all notices,
pleadings, judgments, determinations and other papers
received or delivered by the Mortgagor with respect thereto.
The Mortgagee shall have the right (but shall have no
obligation) to appear and participate therein and may be
represented by counsel, who, if the Mortgagee elects, may
also be the counsel retained by the Mortgagor to represent
the Mortgagor. The Mortgagor will not, without the Mort-
gagee's prior written consent, enter into any agreement for
the taking of the Mortgaged Premises, or any part thereof,
with anyone authorized to acquire the same by eminent domain
or in condemnation, and it shall be an Event of Default if
the Mortgagor shall enter into any such agreement without
the Mortgagee's prior written consent.
9.2. In the event that the Mortgaged Premises, or
any portion thereof, shall be the subject of a Taking, the
Mortgagee shall be entitled to and shall receive the total
of such portion of all awards made that shall be allowed or
allocated to the Mortgagor or the Mortgagee with respect to
all the right, title and interest of the Mortgagor in and to
the Mortgaged Premises or the portion thereof affected
(herein called the IIAwardll), provided that the obligations
of the Mortgagor to perform the terms, covenants and
conditions of this Mortgage, if any, affected by such Taking
shall continue unimpaired until the actual vesting of title
in such proceeding and the actual receipt by the Mortgagee _
of the entire Award resulting from such Taking.
9.3. If, in accordance with the provisions of the
Land Lease, the Land Lease is terminated as a result of the
Taking of all or Substantially 'All of the Premises (as such
phrase is defined in the Land Lease), then the Mortgagee
shall have the option of treating such Taking as an Event of
Default and of accelerating the entire indebtedness secured
hereby, in which event it shall apply the entire Award in
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reduction of such indebtedness (including principal,
interest and other sums secured hereby, in such order as the
Mortgagee may determine) and shall turn over any balance
remaining to the Person lawfully entitled thereto (other
than the Mortgagee). If there be a Taking which is not a
Taking of Substantially All of the Premises, the net
proceeds of the Award shall be applied in accordance with
the provisions of SECTIONS 5.8, 5.9, 5.10 and 5.11. Any
Award remaining after the completion of such restoration,
replacement or rebuilding shall be applied in reduction of
the indebtedness (including principal, interest and other
sums secured hereby) in such order as the Mortgagee shall
determine.
9.4. If any Award payable to the Mortgagor on
account of a Taking for temporary use or occupancy is made
in a lump sum or is payable other than in equal monthly
installments, the Mortgagor shall pay over such Award to the
Mortgagee promptly upon receipt, and the Mortgagee, at its
option, shall apply such Award to installments of principal
and interest and all other charges secured by this Mortgage
or due under the Note or described in SECTION 5.2(f) as and
when the same become due and payable. Any unapplied portion
of such Award held by the Mortgagee when such Taking ceases
or expires (if no Event of Default has then occurred and is
continuing), or after the indebtedness secured by this
Mortgage shall have been paid in full, shall be paid to the
Person lawfully entitled thereto (other than the Mortgagee) .
9.5. If proceeds of the Award are made available
to the Mortgagor for restoration, replacement or rebuilding
pursuant hereto, the Mortgagor shall be obligated promptly
to restore, replace, rebuild or alter any Improvements or
Building Service Equipment or Furnishings and Furniture
affected by a Taking so as to restore the Mortgaged Premises
to an economically viable whole, all without regard to the
adequacy of the proceeds of an Award, if any, made available
to the Mortgagor.
9.6. Notwithstanding anything herein or in any of
the Loan and Security Documents to the contrary, the
Mortgagee hereby agrees that all proceeds of any Award are
to be applied as provided in the Land Lease; provided,
however, to the extent that the "Owner" under the Land Lease
is an Affiliate (as such term is defined in the Construction
Loan Agreement) of the Mortgagor or the Mortgagor has
acquired the interest of the "Owner" under the Land Lease,
then the provisions of this ARTICLE 9 shall apply without
regard to the terms of the Land Lease.
9.7. The Mortgagor and the Mortgagee agree that
the provisions of SECTIONS 5.9, 5.10 and 5.11 (but only to
the extent they impose requirements for documentation
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regarding a Condemnation Restoration in addition to those
set forth in the Land Lease) are provisions which the
Mortgagee, pursuant to SECTION 9.3(a) (iii) of the Land
Lease, reasonably requires.
9.8. The Mortgagor agrees that it shall not make
any determination pursuant to the definition in the Land
Lease of Substantially All of the Premises without the prior
written consent of the Mortgagee.
9.9. The provisions of SECTIONS 9.2 through 9.8 .
are not applicable to any condemnation of the whole or any
portion of the Easement.
10. SPACE LEASES
10.1. As further security for payment of the
indebtedness secured hereby, the Mortgagor hereby transfers,
assigns and sets over unto the Mortgagee all Space Leases,
if any, whether now or hereafter entered into by the
Mortgagor, with respect to all or any part of the Mortgaged
Premises, and all renewals, extensions, subleases or
assignments thereof, and all other occupancy agreements
(written or oral), whether by concession, license or
otherwise, together with all of the rents, income, receipts,
revenues, issues and profits arising therefrom.
10.2. The Mortgagor will not (a) assign, pledge,
hypothecate or otherwise encumber any of the Space Leases or
the rents, income, issue and profits of the Mortgaged
Premises; or (b) enter into any Space Leases affecting the
Mortgaged Premises or any part thereof unless such Space
Lease is subordinate to the lien of this Mortgage and to any
consolidation, extension, renewal, recasting or refinancing
hereof and the Space Lease (in the case of any Space Lease
of 2,500 or more rentable square feet of retail space, and
for this purpose retail leases shall not include Space
Leases of hotel rooms, ballrooms, meeting and function
facilities and similar hotel facilities) provides that, in
the event of enforcement by the Mortgagee of the remedies
provided for by law or by this Mortgage, each Space Tenant
shall, at the option of the Mortgagee, attorn to any Person
succeeding to the interest of the Mortgagor as a result of _
such enforcement and shall recognize such successor in
interest as landlord (or sublandlord, as the case may be)
under such Space Lease without change in the terms or other
provisions thereof.
10.3. The Mortgagor shall duly and punctually pe-
rform and observe all of the terms, covenants and conditions
of the Space Leases required to be performed and observed by
it as landlord thereunder. The Mortgagor shall require all
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Space Tenants under material Space Leases to observe, keep
and perform all covenants and agreements imposed upon them
under the Space Leases. The Mortgagor shall appear in and
defend any action or proceeding to which it is a party
arising under or in any manner connected with any of the
Space Leases.
10.4. The Mortgagor shall furnish to the Mor-
tgagee a photostatic copy of each written Space Lease
promptly after its execution. At any time, and from time to
time (but not more frequently than on a quarterly basis), on
reasonable notice from the Mortgagee, the Mortgagor shall
deliver to the Mortgagee a schedule of all Space Leases then
in effect, which schedule shall include the following: (i)
the name of the Space Tenant under the Space Lease; (ii) a
description of the space leased thereunder in form
reasonably satisfactory to the Mortgagee, including but not
limited to the approximate number of square feet leased
thereunder, type of activity performed under such lease and
type of space leased; (iii) the rental rate,'including any
escalations if any; (iv) the term of the Space Lease; and
(v) such other information as the Mortgagee may reasonably
request. The provisions of this SECTION 10.4 shall not be
applicable to Space Leases of hotel rooms, ballrooms,
meeting and function facilities and similar hotel
facilities.
11. ON DEFAULT; MANAGEMENT; ETC.
11.1. The Mortgagor shall have the right, subject
nevertheless to the terms and conditions of the Loan and
Security Documents, to collect and retain for its own
account and benefit all of the rents, gross receipts, hotel
room revenues and other payments, if any, from the Space
Leases, from occupancy of hotel rooms at the Mortgaged
Premises and from the Mortgaged Premises generally, and to
use and enjoy the same in the manner provided herein.
11.2. If an Event of Default shall have occurred
and be continuing, the Mortgagee shall be entitled, after
such proceedings as may be required by any applicable law or
ordinance, either in person or by agent or by a receiver to
be appointed by a court, enter upon, take possession of,
and, subject to rights of the Hotel Operator under the
Management Agreement (if then in effect), manage and operate
the Mortgaged Premises or any part thereof; and, to the
extent permitted by law and subject to the rights of the
Hotel Operator under the Management Agreement, as
attorney-in-fact of the Mortgagor, make, enforce, or modify
any of the Space Leases, obtain tenants for and evict
tenants from the Mortgaged Premises, demand, fix and modify
the rents, gross receipts and other charges and profits from
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the Mortgaged Premises, institute all legal proceedings
(including summary proceedings) for collection of all rents
and other charges, obtain possession of the Mortgaged
Premises or any part thereof, or enforce any other rights
theretofore and/or thereafter exercisable by the Mortgagor,
and do any and all other acts which the Mortgagee in its
sole and absolute discretion deems proper to protect the
security hereof; and, with or without taking possession of
the Mortgaged Premises, in the Mortgagor's own name, sue for
or otherwise collect and receive all rents, gross receipts
and other charges, including those past due and unpaid, and
apply the same in accordance with the Management Agreement,
if then in effect, provided, however, that any balance
remaining after the indebtedness secured hereby shall have
been paid in full shall be turned over to such Person as may
lawfully be entitled thereto (other than the Mortgagee) .
Neither the entry upon and taking possession of the
Mortgaged Premises, nor the collection and application of
the rents, gross receipts or other charges thereof as
aforesaid, nor any other action taken by the Mortgagee in
connection therewith, shall cure or waive any default
hereunder or waive or modify any notice thereof or notice of
acceleration of the indebtedness theretofore given by the
Mortgagee.
11.3. A notice in writing by the Mortgagee to the
Space Tenants under the Space Leases advising them that the
Mortgagor has defaulted hereunder and requesting that all
future payments of rent, additional rent or other charges
under the Space Leases be made to the Mortgagee (or its
agent), shall be construed as conclusive authority to such
Space Tenants that such payments are to be made to the Mor-
tgagee (or its agent), and each such Space Tenant shall be
fully protected in making such payments to the Mortgagee (or
its agent); and the Mortgagor, to the extent permitted by
law, hereby irrevocably constitutes and appoints the
Mortgagee the attorney-in-fact and agent of the Mortgagor,
coupled with an interest, for the purpose of endorsing the
consent of the Mortgagor on any such notice.
11.4. Notwithstanding anything in this Mortgage
or in any of the other Loan and Security Documents to the
contrary, the Mortgagee (or any receiver appointed in a
foreclosure action in respect of this Mortgage) shall be _
entitled to terminate the Management Agreement only upon (or
within a reasonable time after) the earlier of (w) the
continuation of an Event of Default under SECTION 7.1(a) of
the Construction Loan Agreement for twelve (12) months, or
(x) twelve (12) months after commencement (without the same
having been discontinued during such twelve (12) months) of
any action, suit or other proceeding to foreclosure this
Mortgage or (y) conveyance of the Mortgaged Premises to the
Mortgagee in lieu of, or as a result of, foreclosure or (z)
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Hotel Manager's breach of its obligation referred to in
SECTION 11.5 of this Mortgage and PARAGRAPH 4 of the
Agreement as to Management Agreement where such default has
continued for five (5) Business Days after notice by the
Mortgagee to the Hotel Manager that such a breach has
occurred.
11.5. Notwithstanding anything in this Mortgage
or in any of the Loan and Security Documents to the
contrary, only upon and during the continuation of an Event
of Default under SECTION 7.1(a) of the Construction Loan
Agreement or upon and during the continuation of any fore-
closure action in respect of this Mortgage may the Mortgagee
(or any receiver) require that the Hotel Operator (as such
term is defined in the Construction Loan Agreement) deposit
all payments to be made to the Mortgagor pursuant to the
Management Agreement into an account of the Mortgagor main-
tained at and with the Mortgagee. Such deposits shall be
made if, as and when the Hotel Operator is to make payments
to the Mortgagor pursuant to the Management Agreement, but
in any event shall be made at least once a month (assuming
payments are payable to the Mortgagor). The Mortgagor here-
by grants the Mortgagee, for the ratable benefit of the
Lenders, a first priority security interest in such account
and in the monies at any time therein. If the Management
Agreement is then effect, the monies from time to time in
such account will be applied in accordance with the Manage-
ment Agreement and to the payment of interest on, and
mandatory amortization (without regard to any acceleration)
of, the Loans required to be paid pursuant to SECTION 2.9(b)
of the Construction Loan Agreement.
11.6. Notwithstanding anything herein to the
contrary, the Mortgagee agrees that any receiver appointed
in connection with the enforcement by the Mortgagee of its
rights and remedies hereunder shall not have the authority
to terminate the Management Agreement, and will not inter-
fere with the rights of the Hotel Manager to operate the
Mortgaged Premises pursuant to the Management Agreement,
unless the Mortgagee could, pursuant to the provisions of
SECTION 11.4, terminate the Management Agreement. The
Mortgagee shall request that any court appointing the
receiver specifically provide in its order appointing the
receiver that the authority of the receiver be limited as
provided in the preceding sentence and, in any event, any
Person appointed shall be deemed to have agreed, by its
acceptance of its appointment as receiver, to have expressly
agreed to the limitations provided in this SECTION. The
Mortgagor and the Mortgagee agree that this agreement of the
receiver shall be specifically enforceable by the Mortgagor
and the Hotel Operator.
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12. MORTGAGEE MAY CURE MORTGAGOR'S DEFAULT
If, after any applicable notice and cure period,
the Mortgagor shall fail (i) to make or cause to be made
payment of the Secured Obligations in accordance with the
terms thereof or (ii) to perform or observe any other term,
covenant, condition or obligation required to be performed
or observed by the Mortgagor under this Mortgage, the other
Loan and Security Documents or indebtedness secured hereby,
then, without limiting any other provision of this Mortgage
and without waiving or releasing the Mortgagor from any
obligation or default hereunder, upon ten (10) days notice
to the Mortgagor (or without notice in case of emergency),
the Mortgagee (or any receiver of the Mortgaged Premises)
shall, except as may be otherwise provided in the Loan and
Security Documents and subject to the provisions of the
Project Documents, have the right, but not the obligation,
to make any such payment, or to perform any other act or
take any appropriate action, including, without limitation,
entry on the Mortgaged Premises and performance of work
thereat, as it, in its reasonable discretion, may deem
necessary to cause such other term, covenant, condition or
obligation to be promptly performed or observed on behalf of
the Mortgagor or to protect the security of this Mortgage.
All monies expended by the Mortgagee in exercising its
rights under this Mortgage (including, but not limited to,
reasonable legal expenses and disbursements), together with
interest thereon at Legal Rate from the date of each such
expenditure, shall be paid by the Mortgagor to the Mortgagee
within ten (10) days of demand by the Mortgagee, and shall
be secured by this Mortgage.
13. BOOKS AND RECORDS; FINANCIAL STATEMENTS; ESTOPPELS
BY THE MORTGAGOR AND THE MORTGAGEE; ETC.
13.1. The Mortgagor will keep adequate records
and books of account, in which complete entries will be made
in accordance with the provisions of the Land Lease and
generally accepted accounting principles consistently
applied. The Mortgagor further covenants that it will, at
any reasonable time, and from time to time, upon reasonable
notice permit the Mortgagee or any of its agents or
representatives thereof to examine and make copies of and
abstracts from the books and records of account of, and
visit the properties (including, but not limited to, the
Mortgaged Premises) of, the Mortgagor and to discuss the
affairs, finances and accounts of the Mortgagor with its
representatives.
13.2. The Mortgagor hereby covenants that it
will, at its own expense, deliver to the Mortgagee, within
fifteen (15) Business Days after request, a written
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statement executed by the Mortgagor, setting forth the
amount then due under this Mortgage and whether, to the best
of its knowledge, any offsets or defenses exist against the
indebtedness secured hereby; and, if any such offsets or
defenses are alleged to exist, then the nature of such
offsets or defenses.
13.3. The Mortgagor shall also make available to
the Mortgagee, upon reasonable notice by the Mortgagee, such
further information with respect to the Mortgaged Premises
as the Mortgagee may, from time to time, reasonably request.
13.4. The Mortgagee hereby covenants that it
will, at the Mortgagor's reasonable expense and upon the
Mortgagor's reasonable written request, deliver to the
Mortgagor, within fifteen (15) Business Days after such
written request, a written statement executed by the
Mortgagee, setting forth the outstanding principal balance
of the Note, the accrued and unpaid interest thereon and any
other sums then due and payable under the Loan and Security
Documents.
14. SECURITY AGREEMENTS; ETC.
It is the intent of the parties hereto that this
Mortgage shall constitute a security agreement within the
meaning of the Uniform Commercial Code of the State (the
"Code") with respect to so much of the Building Service
Equipment and Furnishings and Furniture as is considered or
as shall be determined to be personal property or "fixtures"
(as defined in the Code), together with all replacements
thereof, substitutions therefor or additions thereto, and
proceeds and products thereof, as well as in and to the
Space Leases, Mortgaged Leases, the Rents and the remaining
Mortgaged Premises (said property being sometimes herei-
nafter referred to as the "Collateral"), and that a security
interest shall attach thereto for the benefit of the Mor-
tgagee, for the ratable benefit of the Lenders, to secure
the Secured Obligations and all other sums and charges which
may become due hereunder or thereunder. To this end, the
Mortgagor does hereby grant, assign and transfer unto the
Mortgagee, for the ratable benefit of the Lenders, a
continuing security interest in all of the Mortgagor's
right, title and interest in, to and under the Collateral,
as collateral security to secure the full and timely payment
of the indebtedness and the full and timely performance and
discharge of the Secured Obligations. The Mortgagor hereby
authorizes the Mortgagee to file financing and continuation
statements with respect to the Collateral without the
signature of the Mortgagor if lawful; in addition, the
Mortgagor agrees to execute such financing and continuation
statements as the Mortgagee may, from to time, consider
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reasonably necessary to create, perfect and preserve the
Mortgagee's security interest herein granted and the
Mortgagee may cause such statements and assurances to be
recorded and filed, at such times and places as may be
required or permitted by law to so create, perfect and
preserve such security interest. If there shall exist an
Event of Default under this Mortgage, the Mortgagee pursuant
to the appropriate provisions of the Code, shall have the
option of proceeding as to both real and personal property
in accordance with its rights and remedies in respect of the
real property, in which event the default provisions of the
Code shall not apply. The parties agree that, in the event
the Mortgagee shall elect to proceed with respect to the
Collateral separately from the real property, unless a
greater period shall then be mandated by the Code, twenty
(20) days' notice of the sale of the Collateral shall be
reasonable notice. The reasonable expenses of retaking,
holding, preparing for sale, selling and the like incurred
by the Mortgagee shall be assessed against the Mortgagor and
shall include, but not be limited to the legal expenses
incurred by the Mortgagee. The Mortgagor agrees that it
will not remove or permit to be removed from the Mortgaged
Premises any of the Collateral without the prior written
consent of the Mortgagee except as otherwise provided in
SECTION 6.3 hereof. All replacements, renewals and
additions to the Collateral shall be and become immediately
subject to the security interest of this Mortgage and be
covered thereby. The Mortgagor shall, within thirty (30)
days after demand by the Mortgagee, execute and deliver to
the Mortgagee, a supplemental mortgage, financing statement
or other security instrument of similar legal effect as the
Mortgagee may reasonably require, and in form and substance
reasonably satisfactory to the Mortgagee and its counsel,
covering any replacements or substitution of and additions
to the Collateral, and the Mortgagor will pay the reasonable
fees, including reasonable counsel fees of the Mortgagee,
for the preparation and recording or filing of any such
instrument. The Mortgagor warrants and represents that all
Collateral now is, and that all replacements thereof,
substitutions therefor or additions thereto, unless the
Mortgagee otherwise consents, will be free and clear of
liens, encumbrances or security interests of others, other
than the Permitted Encumbrances.
15. RECORDED INSTRUMENTS
The Mortgagor will promptly perform and observe,
or cause to be performed and observed, prior to the
expiration of any applicable notice and cure period, all of
the terms, covenants and conditions of all instruments of
record affecting the Mortgaged Premises, where noncompliance
therewith might materially adversely affect the security of
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this Mortgage or might impose any material duty or material
obligation upon the Mortgagor or any Space Tenant under a
Space Lease and the Mortgagor shall do or cause to be done
all things reasonably within its control to preserve intact
and unimpaired and to renew any and all rights of way, eas-
ements, grants, appurtenances, privileges, licenses, fra-
nchises and other interests and rights in favor of or const-
ituting any portion of the Mortgaged Premises. The
Mortgagor will not, without the prior written consent of the
Mortgagee (which consent will not be unreasonably withheld,
delayed or conditioned), initiate, join in or consent to any
private restrictive covenant or other public or private
restriction as to the use of the Mortgaged Premises.
16. CONCERNING THE SPECIAL PROJECT DOCUMENTS.
16.1. The Mortgagor covenants and agrees as
follows:
(a) to promptly and faithfully observe,
perform and comply (prior to the expiration of any
applicable notice and cure period) with all the terms,
covenants and provisions of each of the Special Project
Documents on its part to be observed, performed and complied
with;
(b) not to terminate (including a termin-
ation pursuant to the express provisions thereof), cancel,
surrender (including, without limitation, by reason of an
election by the Mortgagor not to remain in possession of the
property demised or an estate created by a Special Project
Document in case such Special Project Document shall be
rejected, terminated or annulled by any trustee appointed
for landlord's or the other party's assets in debtor relief
proceedings), modify, elect any option (other than the
option and/or right of first refusal set forth in ARTICLE 36
of the Land Lease), including, without limitation, any
option not to continue a Special Project Document for a
renewal term, amend or in any way alter or permit the
alteration of any of the terms, covenants or provisions of
any Special Project Document; provided, however, that the
Mortgagee will not unreasonably withhold, delay or condition
its consent to any amendment or modification to the Garage _
Easement Agreement which does not reduce the number of
parking spaces available to the Mortgagor or materially
diminish the Mortgagor's rights under the Garage Easement
Agreement;
(c) not to waive, excuse or discharge any of
the material obligations and agreements of the landlord or
other party under any Special Project Document, or
subordinate or consent to the subordination of any Special
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Project Document to any mortgage or deed of trust on the
landlord's or the other party's interest in the property
demised or encumbered by such Special Project Document; and
(without the prior written consent of the Mortgagee, which
consent will not be unreasonably withheld, delayed or
conditioned) or consent to any restriction, covenant or
agreement affecting the leasehold or other estate created by
any Special Project Document, the Mortgagor shall enforce
the obligations of the landlord under each of the Mortgaged
Leases and, in its commercially reasonable judgment, enforce
the obligations of the other party to Garage Easement
Agreement to the end that the Mortgagor may enjoy all of the
material rights, powers and privileges granted to it under
each of the Mortgaged Leases and the Garage Easement
Agreement and will promptly notify the Mortgagee of any
written notice of default given by the Mortgagor or by a
landlord or other party under any Special Project Document;
(d) to promptly notify the Mortgagee of any
written notice which the Mortgagor receives asserting any
default by the Mortgagor in the observance or performance of
any of the terms, covenants and conditions to be observed or
performed by the Mortgagor under any and/or all of the
Special Project Documents or any written notice received by
the Mortgagor from the landlord under or other party to any
and/or all of the Special Project Documents of any
termination or purported termination thereof, without giving
effect to any grace periods or times to cure, and to
promptly deliver to the Mortgagee copies of each such notice
of default or notice of termination and all other material
notices received or delivered by the Mortgagor in connection
with either or both of the Mortgaged Leases; and
(e) to furnish to the Mortgagee such
information and evidence as the Mortgagee may reasonably
require concerning the Mortgagor's due observance, perfo-
rmance and compliance with the terms, covenants and
provisions of each of the Special Project Documents.
16.2. Subject to the provisions of SECTION
2(b) (ii) of the Completion and Payment Guaranty and the
limitations of this sentence, in the event of any default by
the Mortgagor in the observance or performance of any of the
terms, covenants or conditions to be observed or performed _
by Mortgagor under any and/or all of the Special Project
Documents, the Mortgagee may, at its option and without
notice, only after receipt of a "Notice of Failure to Cure"
pursuant to SECTION 11.4 of the Land Lease or SECTION 10 of
the Garage Easement Agreement, cause the default or defaults
to be remedied and otherwise exercise any and all of the
rights of the Mortgagor under any and/or all of the Special
Project Documents with respect to which such default or
defaults has occurred in the name of and on behalf of the
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Mortgagor, and the Mortgagee may take any such action even
though the existence of such default or the nature thereof
may be questioned or denied by the Mortgagor, but no such
action by the Mortgagee shall waive or constitute a release
of any default by the Mortgagor hereunder. Subject to the
limitations of the preceding sentence, the Mortgagor hereby
expressly grants to the Mortgagee (or its agents), and
agrees that the Mortgagee (and its agents) shall have, the
absolute and immediate right (subject to applicable law and
the requirements of the Project Documents) to enter upon the
Mortgaged Premises, or any part thereof, to such extent and
as often as the Mortgagee, in its reasonable discretion,
deems necessary or desirable for the purpose of taking any
such action. The Mortgagor shall, within ten (10) days of
demand, reimburse the Mortgagee for all reasonable advances
made and reasonable expenses incurred by the Mortgagee
and/or any Lender in curing any such default (including,
without limitation, reasonable attorneys' fees), together
with interest thereon computed at the Legal Rate from the
date that an advance is made or expense is incurred to and
including the date that same is paid to the Mortgagee or
such Lender, and all such amounts, together with the
interest thereon, shall be part of the indebtedness secured
by this Mortgage.
16.3. In order to cure any failure of compliance,
default or event of default referred to in SECTION 16.2
hereof, or effecting, in whole or in part, any such cure
after receipt of a Notice of Failure to Cure, the Mortgagee
may do (but shall be under no obligation to do) any act or
execute any document in the name of the Mortgagor or as its
attorney-in-fact, as well as in the name of the Mortgagee.
To the extent permitted by law and subject to the
limitations in SECTION 16.2, the Mortgagor hereby
irrevocably appoints the Mortgagee, with full power of
substitution, its true and lawful attorney-in-fact in its
name or otherwise, to do any and all acts and to execute any
and all documents which may be necessary or in the
reasonable opinion of the Mortgagee desirable to effect any
such cure. Each Person who shall become a holder of
Tenant's Interest in the Premises (as such term is defined
in the Land Lease), by the acceptance of such interest,
shall, to the extent permitted by law (subject to the
limitations of SECTION 16.2), be deemed to have irrevocably_
appointed the Mortgagee, will full power of substitution,
such Person's true and lawful attorney-in-fact in such
Person's name and otherwise to do any and all acts and to
execute any and all documents which may be necessary or in
the opinion of the Mortgagee desirable (subject to the
limitations of SECTION 16.2) to effect any such cure (after
receipt of a Notice of Failure to Cure. The powers of
attorney granted by or pursuant to this SECTION 16.3 and all
authority hereby conferred are made, granted and conferred
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subject to and in consideration of the interests of the
Mortgagee for the purpose of assuring repayment of the
indebtedness. Accordingly, such powers of attorney shall be
coupled with an interest and irrevocable prior to the
payment in full of the indebtedness and shall not be
terminated prior thereto or affected by any act of the
Mortgagor or any other Person or by operation of law,
including, but not limited to, the dissolution, death,
disability or incompetency of any Person or the occurrence
of any other event, and if the Mortgagor or other Person
should be dissolved or die or become disabled or incompetent
or any other such event should occur before the repayment in
full of the indebtedness, such attorney-in-fact is
nevertheless fully authorized to act under such powers of
attorney as if such dissolution, death, disability or inco-
mpetency or other event had not occurred and regardless of
notice thereof.
16.4. So long as the indebtedness shall remain
unpaid, unless the Mortgagee shall otherwise consent, the
estates of the respective parties to the Special Project
Documents shall not merge but shall always be kept separate
and distinct, notwithstanding the union of said estates in
either the landlord or other party under any and/or all of
the Special Project Documents, the Mortgagee or the Mor-
tgagor or any third party, whether by purchase or otherwise.
16.5. If the Mortgagor owns or hereafter acquires
the fee title or any other estate, title or interest (other
than as a mortgagee hereunder) in the property or estate
demised or created by any and/or all of the Special Project
Documents, or any part thereof, including, without
limitation, any interest in any "Substitute Spaces" (as such
term is defined in Garage Easement Agreement), the lien of
this Mortgage shall attach to, cover and be a lien upon such
acquired estate, title or interest and same shall thereupon
be and become a part of the Mortgaged Premises encumbered by
this Mortgage with the same force and effect as if
specifically intended to be encumbered hereby, and such lien
shall be prior to all other liens on the property so
acquired by the Mortgagor. The Mortgagor agrees to execute
all instruments and documents which the Mortgagee may
reasonably require to ratify, confirm and further evidence
the Mortgagee's lien on the acquired estate, title or
interest. Furthermore, to the extent permitted by law, the
Mortgagor hereby appoints the Mortgagee its true and lawful
attorney-in-fact to execute and deliver all such instruments
and documents in the name and on behalf of the Mortgagor.
This power, being coupled with'an interest, shall be
irrevocable as long as the indebtedness secured hereby
remains unpaid, with the same force and effect as is
provided in SECTION 16.3 hereof.
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16.6. If any Special Project Document is
cancelled or terminated, and if the Mortgagee or its
designee or nominee or any purchaser upon foreclosure shall
acquire an interest in any new lease of or an estate in the
property demised or encumbered by any such Special Project
Document, the Mortgagor shall have no right, title or
interest in or to the new lease or estate.
16.7. The Mortgagor will use its reasonable
efforts diligently exercised to obtain within twenty (20)
days after any written demand from time to time made by the
Mortgagee, an estoppel certificate from the landlord or
other party to the Special Project Documents, such estoppel
certificates in the forms required to be delivered by such
parties pursuant such Special Project Documents or if no
such form is provided for in the applicable Special Project
Document, in such form as is reasonably satisfactory to the
Mortgagee; provided, however, that if no Event of Default
has occurred and is continuing, then the Mortgagee may not
request and receive such estoppels more than twice in any
calendar year.
16.8. The Mortgagee shall not have any liability
or obligation under any and/or all of the Project Documents
by reason of its acceptance of this Mortgage.
16.9. The Mortgagor will promptly notify the
Mortgagee of any request made by any party to a Special
Project Document for an arbitration or appraisal proceeding
pursuant to a Special Project Document, and of the
institution of any arbitration or appraisal proceeding. The
Mortgagor will not appoint or consent to the appointment of
any arbitrator or appraiser in an arbitration or appraisal
under any Special Project Document except in accordance with
the provisions of the applicable Special Project Document.
The Mortgagor will promptly deliver to the Mortgagee a copy
of each notice, pleading, brief and preliminary, interim and
final determination of the arbitrators and other papers
received by it in each such arbitration or appraisal
proceeding.
16.10. No provision of this Mortgage or of any of
the other Loan and Security Documents which requires the
making of a payment or the performance of an act by the
Mortgagor, or permits the Mortgagor to take any action,
conduct any contest of any Legal Requirements or
Impositions, or otherwise do any other act or thing, which
is similar to any payment, performance or act or thing which
is required to be paid or performed by the Mortgagor under
any and/or all of the Special Project Documents or which the
Mortgagor is permitted to do under any and/or all of the
Special Project Documents, shall be deemed to limit or
restrict the generality of the Mortgagor's covenants with
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respect to the Special Project Documents contained in
SECTION 16.1 hereof. Without limiting the generality of the
foregoing, the Mortgagor shall not contest any Legal
Requirements or Impositions or defer compliance therewith if
the same is not permitted under the Special Project
Documents and could constitute or give rise to any default
under the provisions of any and/or all of the Special
Project Documents, unless the Mortgagor first shall have
obtained and delivered to the Mortgagee a written agreement
or agreements, in form and substance reasonably
satisfactory to the Mortgagee, signed by the other party ,
under the Special Project Documents, where a default would
arise as a result of such contest or deferral, to the effect
that no default will be declared thereunder by reason of
such contest or deferment and covering such other matters as
the Mortgagee may reasonably request.
16.11. Pursuant to SECTION 11.2(b) of the Land
Lease the Mortgagee confirms that this Mortgage is subject
and subordinate to the Owner's Interest in the Premises (as
such term is defined in the Land Lease) and to the terms of
the Land Lease and the Condominium Unit Lease.
17. CONCERNING THE OTHER PROJECT DOCUMENTS.
17.1. The Mortgagor covenants and agrees as
follows:
(a) to promptly and faithfully observe,
perform and comply (prior to the expiration of any
applicable notice and cure period) with all the material
terms, covenants and provisions of each of the Other Project
Documents on its part to be observed, performed and complied
with, in each instance at the times set forth therein;
(b) not to terminate, cancel, surrender
(including, without limitation, by reason of an election by
the Mortgagor not to remain in possession of the property
demised or an estate created by an Other Project Document in
case such Other Project Document shall be rejected,
terminated or annulled by any trustee appointed for the
other party's assets in debtor relief proceedings), elect
any option, including, without limitation, any option not ~o
continue an Other Project Document for a renewal term,
materially amend or materially modify any of the terms,
covenants or provisions of any Other Project Document, in
each case without the prior written consent of the
Mortgagee, which consent will not be unreasonably withheld,
delayed or conditioned;
(c) not to subordinate or consent to the
subordination of any Other Project Document to any mortgage
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or deed of trust on the landlord's or the other party's
interest in the property demised or encumbered by such Other
Project Document or consent to any restriction, covenant or
agreement affecting the estate created by any Other Project
Document, without the prior written consent of the
Mortgagee, which consent will not be unreasonably withheld,
delayed or conditioned; the Mortgagor shall enforce the
obligations of the other party under each Other Project
Document in its commercially reasonably judgment and will
promptly notify the Mortgagee of any written notice of
default by the Mortgagor to (or received by the Mortgagor
from) the other party under any Other Project Document; and
(d) to promptly notify the Mortgagee of any
written notice from the other party to any and/or all of the
Other Project Documents of any termination or purported
termination thereof, without giving effect to any grace
periods or times to cure, and to promptly deliver to the
Mortgagee copies of each such notice of default or notice of
termination.
17.2. In the event of any default by the
Mortgagor in the observance or performance of any of the
terms, covenants or conditions to be observed or performed
by Mortgagor under any and/or all of the Other Project
Documents, the Mortgagee may, at its option and without
notice, and in each case only to the extent allowed by the
applicable Other Project Document, cause the default or
defaults to be remedied and otherwise exercise any and all
of the rights of the Mortgagor under any and/or all of the
Other Project Documents with respect to which such default
or defaults has occurred in the name of and on behalf of the
Mortgagor, and the Mortgagee may take any such action even
though the existence of such default or the nature thereof
may be questioned or denied by the Mortgagor, but no such
action by the Mortgagee shall waive or constitute a release
of any default by the Mortgagor hereunder. The Mortgagor
hereby expressly grants to the Mortgagee (or its agents),
and agrees that the Mortgagee (and its agents) shall have,
the absolute and immediate right (subject to applicable law
and to the requirements of the Other Project Documents) to
enter upon the Mortgaged Premises, or any part thereof, to
such extent and as often as the Mortgagee, in its reasonable
discretion, deems necessary or desirable for the purpose of
taking any such action. The Mortgagor shall, within ten
(10) days of demand, reimburse the Mortgagee for all
reasonable advances made and reasonable expenses incurred by
the Mortgagee and/or any Lender in curing any such default
(including, without limitation, reasonable attorneys' fees),
together with interest thereon computed at the Legal Rate
from the date that an advance is made or expense is incurred
to and including the date that same is paid to the Mortgagee
or such Lender, and all such amounts, together with the
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interest thereon, shall be part of the indebtedness secured
by this Mortgage. Notwithstanding the foregoing provisions
of this SECTION 17.2, the right of the Mortgagor to cure a
default of the Mortgagor under the Other Project Documents
may be exercised only if an Event of Default shall have
occurred and be continuing.
17.3. Subject to the limitations of the last
sentence of SECTION 17.2, in order to cure any failure of
compliance, default or event of default referred to in
SECTION 17.2 hereof, or effecting, in whole or in part, any
such cure, the Mortgagee may do (but shall be under no
obligation to do) any act or execute any document in the
name of the Mortgagor or as its attorney-in-fact, as well as
in the name of the Mortgagee. To the extent permitted by
law, the Mortgagor hereby irrevocably appoints the
Mortgagee, with full power of substitution, its true and
lawful attorney-in-fact in its name or otherwise, to do any
and all acts and to execute any and .all documents which may
be necessary or in the reasonable opinion of the Mortgagee
desirable to effect any such cure. Each Person who shall be
an assignee of the interest of the Mortgagor under any
and/or all of the Other Project Documents or Tenant's
Interest in the Premises, by the acceptance of such an
assignment, shall, to the extent permitted by law, be deemed
to have irrevocably appointed the Mortgagee, will full power
of substitution, such Person's true and lawful
attorney-in-fact in such Person's name and otherwise to do
any and all acts and to execute any and all documents which
may be necessary or in the opinion of the Mortgagee
desirable to effect any such cure. The powers of attorney
granted by or pursuant to this SECTION 17.3 and all
authority hereby conferred are made, granted and conferred
subject to and in consideration of the interests of the
Mortgagee for the purpose of assuring repayment of the
indebtedness. Accordingly, such powers of attorney shall be
coupled with an interest and irrevocable prior to the
payment in full of the indebtedness and shall not be
terminated prior thereto or affected by any act of the
Mortgagor or any other Person or by operation of law,
including, but not limited to, the dissolution, death,
disability or incompetency of any Person or the occurrence
of any other event, and if the Mortgagor or other Person
should be dissolved or die or become disabled or incompetent
or any other such event should occur before the repayment in
full of the indebtedness, such attorney-in-fact is
nevertheless fully authorized to act under such powers of
attorney as if such dissolution, death, disability or inco-
mpetency or other event had not occurred and regardless of
notice thereof.
17.4. The Mortgagor will use its reasonable
efforts to obtain within twenty (20) days after any written
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demand from time to time made by the Mortgagee, an estoppel
certificate from the landlord or other party to the Other
Project Documents, such estoppel certificates in the forms
required to be delivered by such parties pursuant such Other
Project Documents or if no such form is provided for in the
applicable Other Project Document, in such form as is
reasonably satisfactory to the Mortgagee; provided, however,
that if no Event of Default has occurred and is continuing,
then the Mortgagee may request and receive such estoppels
not more than twice in any calendar year.
17.5. The Mortgagee shall not have any liability
or obligation under any and/or all of the Other Project
Documents by reason of its acceptance of this Mortgage.
17.6. The Mortgagor will promptly notify the
Mortgagee of any request made by any party to a Other
Project Document for an arbitration or proceeding pursuant
to a Other Project Document, and of the institution of any
arbitration or appraisal proceeding. The Mortgagor will not
appoint or consent to the appointment of any arbitrator or
appraiser in an arbitration or appraisal under any Other
Project Document except in accordance with the provisions of
the applicable Other Project Document. The Mortgagor will
promptly deliver to the Mortgagee a copy of each material
notice, pleading, brief and other papers received by it in
each such arbitration or appraisal proceeding and of each
preliminary, interim and final determination of the
arbitrators received by it in each such arbitration
proceeding.
17.7. No provision of this Mortgage or of any of
the other Loan and Security Documents which requires the
making of a payment or the performance of an act by the
Mortgagor, or permits the Mortgagor to take any action,
conduct any contest of any Legal Requirements or
Impositions, or otherwise do any other act or thing, which
is similar to any payment, performance or act or thing which
is required to be paid or performed by the Mortgagor under
any and/or all of the Other Project Documents or which the
Mortgagor is permitted to do under any and/or all of the
Other Project Documents, shall be deemed to limit or
restrict the generality of the Mortgagor's covenants with
respect to the Other Project Documents contained in SECTION_
17.1 hereof. Without limiting the generality of the
foregoing, the Mortgagor shall not contest any Legal
Requirements or Impositions or defer compliance therewith if
the same is not permitted under the applicable Other Project
Documents and could constitute or give rise to any default
under the provisions of any and/or all of the Other Project
Documents, unless the Mortgagor first shall have obtained
and delivered to the Mortgagee a written agreement or
agreements, in form and substance reasonably satisfactory to
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the Mortgagee, signed by the other party under the Other
Project Documents, where a default would arise as a result
of such contest or deferral, to the effect that no default
will be declared thereunder by reason of such contest or
deferment and covering such other matters as the Mortgagee
may reasonably request.
18. DEFAULT AND REMEDIES
18.1. The Mortgagee shall be entitled to exercise
any and all of the remedies provided for in SECTION 18.2
during the continuation of any Event of Default, whether
such Event of Default shall occur prior to or after
Substantial Completion.
18.2. If an Event of Default shall occur and be
continuing, the Mortgagee may, at the Mortgagee's election
and subject to the provisions of applicable law and the Loan
and Security Documents, exercise any or all of the following
rights, remedies and recourses:
(a) Foreclose this Mortgage in accordance
with the laws of the State and the provisions hereof, for
the entire indebtedness secured hereby or for any portion of
such indebtedness or any other sums secured hereby which are
then due and payable, subject to the continuing lien of this
Mortgage for the balance of the indebtedness not then due.
(b) Make application to a court of competent
jurisdiction as a matter of strict right and without notice
to the Mortgagor or regard to the adequacy of the Mortgaged
Premises for the repayment of the indebtedness, or the
solvency of any Person liable for payment thereof, for
appointment of a receiver of the Mortgaged Premises and the
Mortgagor does hereby irrevocably consent to such
appointment and any such application must comply with
SECTION 11.6.
(c) Exercise any and all other rights and
remedies granted under this Mortgage or now or hereafter
existing in equity, at law, by virtue of statute or other-
wise.
(d) Exercise any and all other rights and
remedies granted under the Note, any guaranty of the
indebtedness or under any of the other Loan and Security
Documents, in such order and priority as the Mortgagee shall
determine in its sole discretion.
(e) Nothing in this SECTION 18.2 shall be
construed to limit the Mortgagee's right to exercise any
rights and remedies which, pursuant to law and/or the Loan
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and Security Documents, may be exercised'prior to an Event
of Default.
18.3. The Mortgaged Premises may be sold in one
or more parcels and in such manner and order as the Mor-
tgagee, in its sole discretion, may elect, it being
expressly understood and agreed that the right of sale
arising out of any Event of Default shall not be exhausted
by anyone or more sales.
18.4. The Mortgagee shall have all rights,
remedies and recourses granted in this Mortgage and
available at law or equity (including specifically those
granted by the Code in effect and applicable to the
Mortgaged Premises, or any portion thereof) and same (a)
shall be cumulative and concurrent, (b) may be pursued
separately, successively and/or concurrently against the
Mortgagor, or others obligated under the Note or with
respect to the indebtedness, or against the Mortgaged
Premises, or against anyone or more of them, at the sole
discretion of the Mortgagee, (c) may be exercised as often
as occasion therefor shall arise, it being agreed by the
Mortgagor that the exercise or failure to exercise any of
same shall in no event be construed as a waiver or release
thereof or of any other right, remedy or recourse and (d)
are intended to be, and shall be, nonexclusive. Moreover,
the Mortgagee may not be required to proceed hereunder
before proceeding against any other security and shall not
be required to proceed against any other security before pr-
oceeding hereunder, and shall not be precluded from
proceeding against any or all of any security in any order
or at the same time.
Notice is hereby given to all persons now or her-
eafter claiming an interest in or lien upon the Mortgaged
Premises subordinate and inferior to the lien of this
Mortgage that neither the Mortgagor nor such persons shall
have any right or claim of right to cause a marshalling of
the Mortgagor's assets or property before proceeding against
the security afforded by this Mortgage or to proceed or to
enforce any of the remedies afforded the Mortgagee hereunder
or by law in any order or at the same time or at all.
18.5. Neither the Mortgagor nor any other person_
hereafter obligated for payment of all or any part of the
indebtedness shall be relieved of such obligation by reason
of (a) the failure of the Mortgagee to comply with any
request of the Mortgagor, or of any other person so
obligated, to foreclose the lien of this Mortgage, (b) the
release, regardless of consideration, of the Mortgaged
Premises or any other collateral security for the
indebtedness or the addition of any other property to the
Mortgaged Premises or any other collateral security for the
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indebtedness or (c) the foreclosure by the Mortgagee of one
or more of the other security agreements securing the indeb-
tedness, or the acceptance by the Mortgagee, or its
designated nominee or nominees of a deed or assignment in
lieu thereof.
18.6. The Mortgagee may release, regardless of
consideration, any part of the Mortgaged Premises or any
other collateral security for the indebtedness without, as
to the remainder, in any way impairing, affecting,
subordinating or releasing the lien or security interests
created in or evidenced by this Mortgage. For payment of
the indebtedness, the Mortgagee may resort to any other
security therefore held by the Mortgagee in such order and
manner as the Mortgagee may elect. The Mortgagee may, to
the full extent that it may lawfully do so, pursue anyone
or more remedies permitted hereunder or under applicable law
to enforce the provisions of this Mortgage, to collect the
indebtedness secured hereby or to realize the security given
therefor at the same time or at different times without in
any way impairing or waiving its right to pursue any other
remedy or remedies so provided.
18.7. To the fullest extent permitted by law but
except as to notice required hereunder or under any of the
Loan and Security Documents, the Mortgagor hereby
irrevocably and unconditionally waives and releases (a) all
benefit that might accrue to the Mortgagor by virtue of any
present or future law exempting the Mortgaged Premises from
attachment, levy or sale on execution or providing for any
appraisement, valuation, stay of execution, exemption from
civil process, redemption or extension of time for payment,
(b) all notices of any Event of Default or of the
Mortgagee's election to exercise or its actual exercise of
any right, remedy or recourse provided for under this Mor-
tgage and (c) any right to a marshalling of assets or a sale
in inverse order of alienation.
18.8. In case the Mortgagee shall have proceeded
to invoke any right, remedy or recourse permitted under this
Mortgage and shall thereafter elect to discontinue or
abandon same for any reason, the Mortgagee shall have the
unqualified right so to do and, in such an event, the
Mortgagor and the Mortgagee shall be restored to their
former positions with respect to the indebtedness, this
Mortgage, the Mortgaged Premises and otherwise, and the
rights, remedies, recourses and powers of the Mortgagee
shall continue as if same had never been invoked, but no
Default and/or Event of Default, unless cured, shall be
deemed to have been waived as a result thereof.
18.9. The proceeds of any foreclosure sale of,
and the Rents and other amounts generated by the holding,
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leasing, operation or other use of, the Mortgaged Premises
shall be applied by the Mortgagee (or the receiver, if one
is appointed) to the extent that funds are so available
therefrom in the following orders of priority (provided,
however, that if the Management Agreement is then in effect,
then the Rents and other amounts (but not the proceeds of
any foreclosure sale) shall be applied as provided in
accordance with the Management Agreement and, if and to the
extent applicable, SECTION 11.5) :
(a) first, to the payment of the costs and
expenses of taking possession of the Mortgaged Premises and
of holding, using, leasing, repairing, improving and selling
the same, including, without limitation (i) receivers' fees,
(ii) court costs, (iii) reasonable attorneys' and
accountants' fees and disbursements, (iv) costs of
advertisement and (v) the payment of any and all
Impositions, Ground Rents, liens, security interests or
other rights, titles or interests equal or superior to the
lien and security interest of this Mortgage (except those to
which the Mortgaged Premises has been sold subject to and
without in any way implying the Mortgagee's prior consent to
the creation thereof) ;
(b) second, to the payment of all amounts,
other than the principal of the indebtedness remaining under
the Note and accrued but unpaid interest, which may be due
under the Note and this Mortgage as provided therein, in
such order and priority as the Mortgagee may determine;
(c) third, to the payment of all accrued but
unpaid interest due on the Note;
(d) fourth, to the payment of all principal
due on the Note;
(e) fifth, to the extent funds are available
therefor out of the sale proceeds or the Rents and, to the
extent known by the Mortgagee, to the payment of any
indebtedness or obligation secured by a subordinate mortgage
on or security interest in the Mortgaged Premises without in
any way implying the Mortgagee's prior consent to the
creation thereof; and
(f) sixth, to the Person lawfully entitled
thereto (other than the Mortgagee) .
19. LEGAL EXPENSES
19.1. The Mortgagor will pay to the Mortgagee,
within fifteen (15) days after demand and only to the extent
such costs are incurred after an Event of Default, all
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reasonable costs, charges and expenses (including, without
limitation, reasonable attorneys' fees) incurred or paid at
any time by the Mortgagee in any action or proceeding to
foreclose this Mortgage or because of the failure of the
Mortgagor to perform, comply with or abide by any of the
stipulations, agreements, conditions or covenants contained
herein or in or with respect to the indebtedness secured
hereby, together with interest on each such payment made by
the Mortgagee with respect to such reasonable costs, charges
and expenses at the Legal Rate from the date each such
payment is made until such amount is paid to the Mortgagee.
However, in any such action or proceeding the party
substantially prevailing in such action or proceeding shall
be entitled to recover from the other party the prevailing
party's reasonable expenses of such action (including
reasonable attorneys' fees).
19.2. Except as otherwise expressly provided in
SECTION 19.1, If any action or proceeding be commenced in
which the Mortgagee is made a party, or in which it becomes
necessary to defend or uphold the title, rights or lien of
this Mortgage, all sums paid by the Mortgagee for the
reasonable expense of any litigation to prosecute or defend
the title, rights and lien created by this Mortgage
(including, without limitation, reasonable attorneys' fees)
shall be paid by the Mortgagor, together, to the extent
permitted by law, with interest thereon at the Legal Rate
from the date each such payment is made until such amount is
paid to the Mortgagee, and all such sums and the interest
thereon shall be a lien on the Mortgaged Premises, prior to
any right, title or interest in or claim upon the Mortgaged
Premises attaching or accruing subsequent to the lien of
this Mortgage, and shall be deemed to be secured by this
Mortgage.
20. TAX ON MORTGAGE; ETC.
In the event that hereafter it is claimed by any
Governmental Authority that any tax or other governmental
charge is due, unpaid and payable by the Mortgagor or the
Mortgagee upon this Mortgage, the indebtedness secured
hereby or upon any increase in the indebtedness secured
hereby, or any modification, amendment, extension, spreader_
and/or consolidation hereof (other than a tax assessed by
the United States government, the State, or any political
subdivision of either on the interest income received and
retained by the Mortgagee (or any Lender) hereunder
including but not limited to any tax assessed against or
withheld from interest or other payments made under the
indebtedness secured hereby or this Mortgage by any foreign
government or political subdivision thereof), or upon the
interest of the Mortgagor or the Mortgagee in the Mortgaged
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Premises, the Mortgagor will forthwith pay such tax and any
interest and penalties thereon and, within a reasonable time
thereafter, will deliver to the Mortgagee satisfactory proof
of payment thereof, or reimburse the Mortgagee, together
with interest thereon at the interest rate then in effect
under the Note from the date paid by the Mortgagee until the
Mortgagor pays such sum to the Mortgagee, if the Mortgagee
shall have paid same. If the Mortgagor shall fail to pay
such tax within thirty (30) days after notice, or if such
payment or agreement to pay the same shall be unenforceable,
the Mortgagee shall have the right to give one hundred and
twenty (120) days notice to the Mortgagor requiring the
payment of the entire unpaid amount of indebtedness secured
hereby, and all interest accrued and unpaid thereon. If
such notice be given, the said indebtedness and interest
shall become due, payable and collectible at the expiration
of said thirty (120) day period.
21. NO CREDITS
21.1. In the event of the passage after the date
of this Mortgage of any law of the State deducting from the
value of real property for the purpose of taxation any lien
or encumbrance thereon or changing in any way the laws for
the taxation of mortgages or debts secured by mortgages for
state or local purposes or the manner of the collection of
any such taxes, and imposing a tax, either directly or
indirectly, on this Mortgage, the Note or the indebtedness,
the Mortgagor shall, if permitted by law, pay any tax
imposed as a result of any such law within the statutory
period or within thirty (30) days after demand by the
Mortgagee, whichever is less, provided, however, that if the
Mortgagor is not permitted by law to pay such taxes, the
Mortgagee shall have the right, at its option, to declare
the indebtedness due and payable on a date specified in a
prior notice to the Mortgagor of not less than thirty (30)
days.
22. MAINTENANCE; WASTE; INSPECTION; ETC.
22.1. The Mortgagor shall take good care of, and
keep and maintain, the Mortgaged Premises in good and safe _
order and condition, and shall make all repairs therein and
thereon, interior and exterior, structural and
nonstructural, ordinary and extraordinary, foreseen and
unforeseen, necessary to keep the Mortgaged Premises in good
and safe order and condition and as a first class convention
center hotel, however the necessity or desirability therefor
may arise.
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22.2. The Mortgagor shall not commit, and shall
use all reasonable efforts to prevent, waste, damage or
injury to the Mortgaged Premises.
22.3. Except as otherwise required in connection
with the construction of the Project (as such term is
defined in the Construction Loan Agreement) prior to
Substantial Completion, the Mortgagor will neither do nor
permit to be done anything to the Mortgaged Premises that
may materially adversely impair the value thereof or
security hereunder. The Mortgagor shall, within thirty (30)
days after demand by the Mortgagee (or immediately upon
demand in case of emergency), make such repairs or perform
such items of maintenance, to the Mortgaged Premises as the
Mortgagee may reasonably require in order to cause the
Mortgaged Premises to comply with the standards established
in this ARTICLE.
23. ESCROW
In order to more fully protect the security of
this Mortgage and to insure the payment of Impositions and
insurance premiums, during the continuation of an Event of
Default, at the option of the Mortgagee, the Mortgagor, on
the first day of each month, shall pay to the Mortgagee, as
escrowed sums, an amount equal to one-twelfth of (a) the
annual Impositions (estimated, wherever necessary) to become
due for the tax year during which such payment is so
directed and (b) the insurance premiums for the same year
for those insurance policies as are required hereunder, and
any monies so paid to the Mortgagee shall be held in an
interest bearing account which shall not be commingled with
the Mortgagee's other funds. For the purpose of the
preceding sentence, the month in which such last preceding
installment of premiums and Impositions became due and
payable and each month thereafter until and including the
month in which such demand was made shall be included deemed
to have elapsed. If the Mortgagee determines that any
amounts theretofore paid by the Mortgagor are insufficient
for the payment in full of such Impositions and insurance
premiums, the Mortgagee may notify the Mortgagor of the
increased amounts required to provide a sufficient fund,
whereupon the Mortgagor shall pay to the Mortgagee, within _
thirty (30) days thereafter, the additional amount stated in
the Mortgagee's notice. Upon assignment of this Mortgage,
the Mortgagee shall have the right to pay over the balance
of the escrowed sums then in its possession to the assignee
whereupon the assignor shall then become completely released
from all liability with respect to the sums so transferred.
Upon full payment of the indebtedness or at such earlier
time as the Mortgagee may elect, the balance of the escrowed
sums in its possession shall be paid over to the Person
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lawfully entitled thereto (other than the Mortgagee). If no
Event of Default shall be continuing, the escrowed sums
shall, at the option of the Mortgagee, be repaid to the
Mortgagor in sufficient time to allow the Mortgagor to
satisfy the Mortgagor's obligations under this Mortgage to
pay the Impositions and the required insurance premiums or
be paid directly by the Mortgagee to the Governmental
Authority and the insurance company entitled thereto.
Notwithstanding anything to the contrary contained in this
SECTION or elsewhere in this Mortgage, the Mortgagee hereby
reserves the right to waive the payment by the Mortgagor to
the Mortgagee of the escrowed sums, and, in the event the
Mortgagee does so waive such payment, it shall be without
prejudice to the Mortgagee's rights to insist, at any
subsequent time or times, that such payments be made in
accordance herewith.
24. NO WAIVER
24.1. No failure or delay on the part of the
Mortgagee in exercising any power or right hereunder shall
operate as a waiver thereof or a waiver of any other term,
provision or condition hereof, nor shall any single or
partial exercise of any such right or power preclude any
other or further exercise thereon or the exercise of any
other right or power hereunder; and all rights and remedies
of the Mortgagee hereunder are cumulative and shall not be
deemed exclusive of any rights or remedies provided by law.
24.2. A waiver in one or more instances of any of
the terms, covenants, conditions or provisions hereof or of
the indebtedness secured hereby shall apply to the
particular instance or instances and at the particular time
or times only, and no such waiver shall be deemed a
continuing waiver, but all of the terms, covenants,
conditions and other provisions of this Mortgage and of the
indebtedness secured hereby shall survive and continue to
remain in full force and effect until payment in full of the
indebtedness; and no waiver shall be effective unless in
writing, dated and signed by the Mortgagee.
25. MODIFICATION
No change, amendment, modification, cancellation
or discharge hereof, or any part hereof, shall be valid
unless in writing, dated and signed by the party against
whom such change, amendment, modification, cancellation or
discharge is sought to be charged.
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26. NOTICES
All notices, demands, requests, consents,
approvals or other communications (hereinafter collectively
called "Notices") given or required to be given hereunder to
the Mortgagor or the Mortgagee shall be given in the manner
set forth in the Construction Loan Agreement.
27 . FURTHER ASSURANCES
The Mortgagor will, at any time and from time to
time after the execution and delivery of this Mortgage,
promptly upon request of the Mortgagee, execute and deliver
such further deeds of trust, mortgages, instruments of
further assurances and other documents and do such further
acts and things as the Mortgagee may reasonably request in
order to evidence further the lien and security interest of
this Mortgage, to protect further the security of the
Mortgagee, and, otherwise, to effect fully the purposes of
this Mortgage.
28. MISCELLANEOUS PROVISIONS
28.1. All sums which, by the terms of this Mor-
tgage or the indebtedness (or by the instruments, if any,
executed and delivered by the Mortgagor to the Mortgagee as
additional security for this Mortgage and such indebtedness)
are payable by the Mortgagor to the Mortgagee (or any
Lender) shall, together with the interest thereon provided
for herein or in such indebtedness or such instruments, be
secured by this Mortgage and added to and deemed part of the
indebtedness secured hereby, whether or not the provision
which obligates the Mortgagor to make any such payment
specifically so states.
28.2. Any interest provided to be paid by the
Mortgagor in respect of the indebtedness secured hereby,
whether such interest be on the principal sum of the
indebtedness or any other sum which is to constitute part of
the indebtedness secured hereby, shall be computed, to the
extent such computation shall not cause a violation of any
law, on the basis of a three hundred sixty (360) day year
and on the actual number of days elapsed.
28.3. The assignment and security interest herein
granted shall not be deemed or construed to constitute the
Mortgagee as a trustee or mortgagee in possession of the
Mortgaged Premises, or any portion thereof, to obligate the
Mortgagee to lease the Mortgaged Premises, or any portion
thereof, or attempt to do same, or to take any action, incur
any expenses or perform or discharge any obligation, duty or
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liability whatsoever under any Project Document, any of the
Space Leases or otherwise.
28.4. By accepting or approving anything required
to be observed, performed or fulfilled or to be given to the
Mortgagee pursuant to this Mortgage, including (but not
limited to) any officer's certificate, balance sheet,
statement of profit and loss or other financial statement,
survey, appraisal or insurance policy, the Mortgagee shall.
not be deemed to have warranted, consented to, or affirmed
the sufficiency, legality, effectiveness or legal effect of
the same, or of any term, provision or condition thereof,
and such acceptance or approval thereof shall not be or
constitute any warranty, consent or affirmation with respect
thereto by the Mortgagee.
28.5. All obligations contained in this Mortgage
are intended by the parties to be, and shall be construed
as, covenants running with the Mortgaged Premises.
28.6. This Mortgage shall be governed by and
construed and enforced according to the laws of the State,
without regard to conflicts or choice of laws rules.
28.7. The provisions of SECTION 8.17 of the
Construction Loan Agreement are hereby incorporated herein
by reference.
28.8. The Mortgagor hereby waives and renounces
all homestead and similar exemption rights provided for by
the constitution and Laws of the United States and/or the
State in and to the Mortgaged Premises as against the
collection of the indebtedness secured by this Mortgage, or
any part thereof.
28.9. The Mortgagor agrees that where, by the
terms of this conveyance or the indebtedness secured hereby,
a day is named or a time fixed for the payment of any sum of
money or the performance of any agreement, the time stated
enters the consideration and is of the essence of the whole
contract.
28.10. (a) This Mortgage secures such future
advances as may be made by the Lenders at their option and _
for any purpose, to the Mortgagor or any successor in title
to all or any portion of the Mortgaged Premises, within
twenty (20) years from the date hereof. The total amount of
indebtedness secured by this Mortgage may decrease or
increase from time to time, but the total unpaid balance so
secured at any time shall not exceed twice the principal
amount of the Note, plus interest and any disbursement made
for the payment of taxes, levies or insurance on the
Mortgaged Premises, with interest on those disbursements at
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the rate provided in the Note. The provisions of this
SECTION shall not be construed to imply any obligation on
the Lenders to make any future advances, it being the
intention of the parties that any future advances shall be
solely at the discretion and option of the Lenders, except
as otherwise expressly provided in the Loan and Security
Documents. Any reference to the Note in this Mortgage shall
be construed to include any future advances made pursuant to
this SECTION.
(b) (i) The Mortgagor waives and agrees not to
assert any right to limit future advances under this
Mortgage, and any such attempted limitations shall be null,
void and of no force and effect.
(ii) An Event of Default hereunder shall
automatically exist if the Mortgagor executes any instrument
which would have the effect of impairing the priority of, or
limiting any future advance, which might ever be made under
the Mortgage.
28.11. It is expressly understood and agreed that
this Mortgage and the obligations of the Mortgagor hereunder
are solely corporate obligations of the Mortgagor, and that
no personal liability whatsoever, whether arising at common
law or in equity or by constitution or statute, shall attach
to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors of the Mortgagor or any
of them, under or by reason of the obligations, covenants or
agreements contained in this Mortgage or implied therefrom;
and that any and all such personal liability of, and any and
all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, under or by
reason of the obligations, covenants or agreements contained
in this Mortgage or implied therefrom, are hereby expressly
waived and released as a condition of, and as a
consideration for, the execution and delivery of this
Mortgage by the Mortgagor.
MORTGAGOR, AGENT AND EACH LENDER HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM BASED ON THIS MORTGAGE, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE OR
ANY LOAN AND SECURITY DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN AND SECURITY
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
MORTGAGOR, AGENT AND EACH LENDER TO ENTER INTO THIS
MORTGAGE.
29. SUCCESSORS AND ASSIGNS
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29.1. The covenants and agreements contained in
this Mortgage shall run with the land and bind the
Mortgagor, the heirs, executors, administrators, principals,
legal representatives, successors and assigns of the
Mortgagor and each person constituting the Mortgagor and all
subsequent owners, encumbrancers and tenants of the
Mortgaged Premises, or any part thereof (provided that
nothing in this SECTION shall be deemed to constitute the
consent of the Mortgagee to any sale, lease, assignment,
conveyance or encumbrance of the Mortgaged Premises), and
shall inure to the benefit of the Mortgagee, its successors
and assigns and all subsequent beneficial owners of this
Mortgage and to the benefit of the Mortgagee and its
successors and assigns.
30. GENDER AND NUMBER
In this Mortgage, wherever the context so
requires, the neuter gender includes the masculine and/or
feminine gender and the singular number includes the plural.
31. INVALIDITY OF PROVISIONS
In case anyone or more of the provisions con-
tained in this Mortgage shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect
any other provisions hereof, but this Mortgage shall be
construed as if such invalid, illegal or unenforceable pro-
vision had never been included.
32. ENTIRE AGREEMENT
Together with the Loan and Security Documents,
this Mortgage embodies the entire agreement and
understanding between the parties relating to the subject
matter hereof.
THE WRITTEN LOAN AND SECURITY DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
33. NOTICE AND RIGHT OF AGENCY'S TO CURE THE
MORTGAGOR'S DEFAULTS
(a) The Mortgagee shall give to the Agency, in
the manner provided by the provisions of SECTION 26.1 of the
Land Lease, a copy of each notice of default at the same
time as it gives notice of default to the Mortgagor.
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(b) The Agency shall have the same period after
the giving of such notice of default to (1) cure the event
of default referred to in the notice or (2) cause it to be
cured. Nothing contained herein shall be construed as
imposing any obligation upon the Agency to so perform or
comply on behalf of the Mortgagor.
(c) If the Agency performs the Mortgagor's
obligations under the Loan and Security Documents on behalf
of the Mortgagor and within the time periods allowed to the
Mortgagor to perform such obligations, the Mortgagee shall
accept such performance by the Agency with the same force
and effect as though performed by the Mortgagor.
IN WITNESS WHEREOF, the Mortgagor has executed and
delivered this Mortgage as of the day and year first above
written.
Witnesses:
MB REDEVELOPMENT, INC.
~~~
Name : --A'7""---(>~ 6-. ,H?r-s...s
~1iA.~
Name: €:.Co.tv-..e Lt. ColA tf\
Post Office Address:
407 Lincoln Road
Suite 6-K
Miami, Florida 33139
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STATE OF NEW YORK
ss. :
COUNTY OF NEW YORK
.rA
On this 12- day of September, 1996, before me per-
sonally came :::TA-W- ~ Ot-c /Z- ,to me personally known,
who, being by me duly sworn, did depose and say that he
resides at 7<."-/ Ii $,~ k _ /4.;-v ~dL ; that he is
the \6,...//11;1- Yrv;{. P'.~Ir/tf,,4'16Y' MB REDEVELOPMENT, INC., the
corporation described in, and which executed the foregoing
instrument; and that he signed his name thereto by order of
the board of directors of said corporat'
SCOTT I. SCHNEIDER
NOTARY PUBLIC, State of New York
No.01SC4839146
Qualified in Westchester County
Certificate Filed in New York County
Commission Expires Juno 3D, 199~"7
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EXHIBIT A
HOTEL LEGAL DESCRIPTION
PARCEL I:
LOTS 1, 2, 17 AND 18, BLOCK 55, FISHER'S FIRST SUBDIVISION OF At. TON BEACH,
ACCORDING TO PLAT THEREOF, RECORDED IN PLAT BOOK 2, AT PAGE 77, OF THE
PUBLIC RECORDS OF D.4DE COUNTY, FLORIDA, LESS THAT PART OF LOTS 2 AND
17 LYING NORTH OF A LINE, WHICH SAID LINE IS LOCATED AND DESCRIBED AS
FOLLOWS:
BEGIN AT THE NORTHWEST CORNER OF LOT 16, BLOCK 55, FISHER'S FIRST
SUBDIVISION OF ALTON BEACH, THENCE RUN SOUTHWESTERLY ALONG THE
WESTERL Y . LINE OF SAID LOTS 16 AND 17 FOR A DISTANCE OF 72 FEET TO A
POINT. SAID POINT BEING THE POINT OF BEGINNING OF THE LINE BEING
DESCRIBED; THENCE EASTERLY PARALLEL TO THE NORTHERLY LINE OF LOT 16
AND LOT 3, BLOCK 55 OF FISHER'S FIRST SUBDIVISION OF ALTON BEACH FOR A
DIST ANCE OF 400 FEET TO A POINT IN THE EASTERLY LINE OF LOT 2, OF SAID
BLOCK 55. F"ISHER'S FIRST SUBDIVISION OF AlTON BEACH.
AS TO LOTS 2 AND 17, SAID PROPERTY MAY ALSO BE DESCRIBED AS LOTS 2 AND
17, LESS THE NORTH 21.3 FEET THEREOF, IN BLOCK 55, AL. TON BEACH FISHER'S
FIRST SUBDIVISION, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT
BOOK 2. AT PAGE 77, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA.
PARCEL II:
PARCEL OF LAND LYING BETWEEN BLOCK 55, OF FISHER'S FIRST SUBDIVISION OF
A.L TON BEACH, ACCORDING TO PLAT THEREOF, RECORDED IN PLAT BOOK 2, AT
PAGE 77. OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, AND THE HIGH
WATER MARK OF THE ATLANTIC OCEAN. WHICH SAID PARCEL OF LAND IS
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGIN A.T THE SOUTHEAST CORNER OF SAID LOT 1, BLOCK 55. FISHER'S FIRST
SUBDIVISION OF AL TON BEACH, THENCE RUN NORTHERLY ALONG THE
EASTERLY LINE OF LOT 1 AND LOT 2 OF SAlDBLOCK 55, FISHER'S FIRST
SUBDIVISION OF AL TON BEACH A DISTANCE OF 102.2 FEET MORE OR LESS TO A
POINT IN THE EASTERLY LINE OF SAID LOT 2. WHICH SAID POINT IS 72 FEET
. SOUTH OF THE NORTHEAST CORNER OF LOT 3 OF SAlD BLOCK 55 OF FISHER'S
F"lRST SUBDIVISION OF ALTON BEACH; THENCE RUN IN AN EASTERL Y DIRfCTION
~ONG A LINE PARALLEL TO THE EASTERLY EXTENSION OF THE NORTH LINE OF
SAJO LOT .3. TO THE HIGH WATER MARK OF THE ATLANTIC OCEAN; THENCE RUN
IN A SOUTHERL Y DIRECTION ALONG THE HIGH WATER MARK OF THE ATLANTIC
OCEAN A DISTANCE OF 102.2 FEET MORE OR LESS TO A POINT ON SAID HIGH
WATER MARK OF THE ATLANTIC OCEAN WHICH IS THE INTERSECTION WITH THE
E A.STERL Y EXTENSION OF THE SOUTHERLY LINE OF SAID LOT 1; THENCE IN A
WESTERL Y DIRECTION ALONG THE EASTERLY EXTENSION OF SAID SOUTH LINE
OF" LOT , TO THE POINT OF BEGINNING.
1 of It "3
HOTEL LEGAL DESCRIPTION
PARCEL III:
LOTS 3 AND 16 AND THE NORTH 21.3 FEET (AS MEASURED ,6LONG LOT LINES) OF
LOTS 2 AND 17, BLOCK 55, FISHER'S FIRST SUBDIVISION OF ,6L TON BEACH,
ACCORDING TO THE PLAT THEREOF AS FILED FOR RECORD IN PLAT BOOK 2,
PAGE 77, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA; TOGETHER
WITH: THAT CERT AlN PARCEL OF LAND LYING EAST OF AND ADJACENT TO THE
LAND DESCRIBED ABOVE; SAID LAND BOUNDED ON THE SOUTH BY THE SOUTH
LINE OF THE ABOVE DESCRIBED PARCEL EXTENDED EASTERL Y BOUNDED ON
THE NORTH BY THE NORTH LINE OF THE ABOVE DESCRIBED PARCEL EXTENDED
EASTERL Y BOUNDED ON THE EAST BY THE MEAN HIGH WATER LINE OF THE
ATLANTIC OCEAN AND BOUNDED ON THE WEST BY THE EAST LINE OF SAID LOTS
2 AND 3 AFOREMENTIONED.
PARCEL IV:
LOTS 9, 10. 11, 12 AND NORTH '12 OF LOT 8 AND THE NORTH 112 OF LOT 1.3, BLOCK
56 OF FISHER'S FIRST SUBDIVISION OF ,6L TON BEACH FLORIDA. A SUBDIVISION IN
FRACTlON,6L SECTION .34, TOWNSHIP 5.3 SOUTH, RANGE 42 EAST, ACCORDING TO
THE PLAT THEREOF, RECORDED IN PLAT BOOK 2. AT PAGE 77, OF THE PUBLIC
RECORDS OF DADE COUNTY, FLORIDA.
PARCEL V:
BEGINNING AT THE NORTHEAST CORNER OF LOT 9, IN BLOCK 56 OF FISHER'S
FIRST SUBDIVISION OF ,6L TON BEACH, AS THE SAME IS SHOWN MARKED AND
DESIGNATED ON A PLAT OF SAID SUBDIVISION, RECORDED IN PLAT BOOK 2, AT
PAGE 77, IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT IN .AND FOR DADE
COUNTY. FLORIDA; THENCE RUN IN AN EASTERLY DIRECTION ALONG THE
NORTH LINE OF LOT 9 OF BLOCK 56, PRODUCED TO THE HIGH WATER LINE Of
THE ATLANTIC OCEAN; THENCE RUN IN A SOUTHERLY DIRECTION MEANDERING
SAID HIGH WATER LINE A DISTANCE OF 76.05 FEET PLUS OR MINUS TO A POINT,
SAID POINT BEING AT THE INTERSECTION OF THE LAST MENTIONED COURSE
WITH THE CENTER LINE OF LOT 8 OF BLOCK 56 PRODUCED TO THE HIGH WATER
LINE OF THE ATLANTIC OCEAN; THENCE RUN IN A WESTERLY DIRECTION ALONG
SAID CENTER LINE OF LOT B. BLOCK 56 PRODUCED TO THE HIGH WATER LINE OF
THE ATLANTIC OCEAN; THENCE RUN IN A WESTERLY DIRECTION ALONG SAID
CENTER LINE OF LOT B,BLOCK 56 PRODUCED TO THE EAST LINE OF BLOCK 56, AT
ITS INTERSECTION WITH THE CENTER LINE OF LOT B, IN BLOCK 56; THENCE RUN
IN A NORTHERLY DIRECTION ALONG SAID EAST LINE OF BLOCK 56, A DISTANCE
OF 76.05 FEET PLUS OR MINUS TO A POINT OF BE,GINNING.
2 of JI '3
HOTEL LEGAL DESCRIPTION
PARCEL VI:
BEGINNING AT THE SOUTHEAST CORNER OF LOT 10. IN BLOCK 56 AS SHOWN BY
THE PLAT ENTITLED "FISHER'S FIRST SUBDIVISION or AI.. TON BEACH". SAID PLAT
BEING RECORDED IN PLAT BOOK 2, AT PAGE 77, OF THE PUBLIC RECORDS OF
DADE COUNTY. FLORIDA; RUN IN A NORTHERLY DIRECTION ALONG THE EAST
LINE OF SAID LOT 10. A DIST ANCE 01=" 50.7 FEET TO THE NORTHEAST CORNER OF
LOT 10; THENCE RUN IN AN EASTERLY DIRECTION ALONG THE NORTH LINE OF
SAID LOT la, PRODUCED EASTERLY TO THE HIGH WATER LINE OF THE ATLAN,I:
OCEAN; THENCE RUN IN A SOUTHERLY DIRECTION, MEANDERING SAID HIGH
WATER LINE A DISTANCE OF -50.7 FEET, PLUS OR MINUS, TO A POINT; THENCE
RUN IN A WESTERLY DIRECTION ALONG THE SOUTH LINE OF LOT 10, IN BLOCK
56, PRODUCED EASTERLY, TO THE POINT OF BEGINNING.
PARCEL VII:
THE SOUTH 112 OF LOTS 8 AND 1.3 AND ALL OF LOTS 7 AND 14. LESS THE SOUTH
12.65 FEET OF SAID LOTS 7 AND 14, TOGETHER WITH THAT PIECE OF PARCEL OF
LAND LYING BETWEEN THE NORTH AND SOUTH BOUNDARIES OF SAJD
PROPERTY EXTENDING EASTWARD TO THE ATLANTIC OCEAN. ALL LYING AND
BEING IN BLOCK 56. OF FISHER'S FIRST SUBDIVISION OF ALTON BEACH,
ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, AT PAGE 77.
OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA.
PARCEL VIII:
THAT PORTION OF AVENUE C (AlK/A 16TH STREET> AS SHOWN IN FISHER'S FIRST
SUBDIVISION OF ALTON BEACH. RECORDED AT PLAT BOOK 2, AT PAGE 77, OF THE
PUBLIC RECORDS OF DADE COUNTY, FLORIDA. AND ITS EASTERLY EXTENSION
BOUNDED ON THE WEST BY THE EASTERLY RIGH:r-OF-WAY LINE OF COLLINS
AVENUE AND BOUNDED ON THE EAST BY THE EROSION CONTROL LINE, ALL OF
WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE, AT THE NORTHWEST CORNER OF LOT 11, BLOCK 56, FISHER'S FIRST
SUBDIVISION OF ALTON BEACH, PLAT BOOK 2, AT PAGE 77, OF THE PUBLIC
RECORDS OF DADE COUNTY. FLORIDA. SAID POINT BEING THE POINT OF
BEGINNING; THENCE NORTH 88 DEGREES 00 MINUTES 49 SECONDS EAST ALONG
THE NORTH LINE OF SAID BLOCK 56 AND ITS EASTERLY EXTENSION FOR A
DIST ANCE OF 576.20 FEET TO THE POINT OF INTERSECTION WITH THE EROSION
CONTROL LINE OF THE ATLANTIC OCEAN; THENCE NORTH 8 DEGREES 54
MINUTES 53 SECONDS EAST, ALONG THE EROSION CONTROL LINE FOR A
DIST ANCE OF 71.28 FEET TO THE POINT OF INTERSECTION WITH THE EASTERL Y
EXTENSION OF THE SOUTH LINE OF BLOCK 55 OF THE ABOVE MENTIONED
FISHER'S FIRST SUBDIVISION OF AI.. TON BEACH; THENCE SOUTH 88 DEGREES 00
MINUTES 49 SECONDS WEST, ALONG THE SOUTH LINE OF SAID BLOCK 55 AND ITS
EASTERL Y EXTENSION FOR A DIST ANCE OF 577.88 FEET TO THE POINT OF
INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY OF COLLINS AVENUE;
THENCE SOUTH 07 DEGREES 35 MINUTES 04 SECONDS WEST,AlONG THE
EASTERL Y RIGHT -OF -WAY LINE OF COLLINS AVENUE FOR A DI5T ANCE OF" 70.98
FEET TO THE POINT OF BEGINNING.
3 of ;.3
EXHLBIT B
GARAGE EASEMENT
LEGAL DESCRIPTION
Lds 8.9.10./1.12 and 13.Block 51.Flsters FIrst SubdivIsIon of Man B8OCh.occordlng to tte
Plat ttereof.as reaYd8d In Plat Book 2.Page 77 at tlYJ Public Records at Dade County. FlorIda.
togeft1Jr with 011 of 16th Sfr8t/ (AvefXJ8 'r;-J.less and except tre fOI/ONIIYJ descrIbed parcel:
BEGINNING at tttJ SoothNest cornsr of Block 54 d' sold FlstBrs FIrst SubdIvIsIon at" Moo
Beoctf Plat: tt1Jnce North 8Ef 0' 5.Y East along tt1J South line a sold Block 54.0 dIstance of .
443.D8 feet.to tttJ Souftsost corner of" sold Block 54: tfr3nce South or 35104' west. 0 dIstance of
96.26 feet.to a point of cusp with 0 tangent curve COflCCNe to tfr3 SouthNest; th8rt;e alolYJ tlYJ arc of
sold curve to ttrJ left.frNlng 0 radIus d' 25lXJ feet 000 0 csrrtral angle at 9G'(XY OCI.an arc dIstance
of 3927 feet.to 0 point at tOngenGy;ttrJnce North 8Z 24' 5Z- West. 0 dIstance d' 2475 feet:fh8nce
South 88' ()(Y 53' west along 0 line 8lXJ f f!Jfi North of and parallel with. os measured at rlglt alYJles
to tre North line of Block 51 d' sold plat.a dIstance of 38218 feet to 0 point on tte Easterly RIgtf
-cf -Woy line of Wastington. Avenue: ttence North or 59' If west 010f'K) sold Easterly Rl9ft-of-
Wc.y Jlne.a dIstance of" 62lXJ feet to tte SoufhNest corner of saId Block 54 aOO tte PoInt of b8glnnlng.
l o~ I
~ _1 4-