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Beacon Properties - Mortgage, Security Agreement And Fixture Filing
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
Center Plaza
Boston, Massachusetts
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
TABLE OF CONTENTS
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Page
1. Payment of Indebtedness . . . . . . . . . . . . 11
2. Covenants of Title. . . . . . . . . . . . . . . 12
3. Usury . . . . . . . . . . . . . . . . . . . . . 12
4. Impositions . . . . . . . . . . . . . . . . . . 13
5. Tax Deposits. . . . . . . . . . . . . . . . . . 15
6. Change in Taxes . . . . . . . . . . . . . . . . 20
7. Insurance . . . . . . . . . . . . . . . . . . . 22
8. Insurance/Condemnation Proceeds . . . . . . . . 25
9. Restoration Following Fire and Other Casualty
or Condemnation. . . . . . . . . . . . . . . . 28
10. Disposition of Condemnation or Insurance
Proceeds . . . . . . . . . . . . . . . . . . . 37
11. Fire and Other Casualty; Self-Help. . . . . . . 40
12. Rent Insurance Proceeds . . . . . . . . . . . . 42
13. Intentionally Omitted . . . . . . . . . . . . . 42
14. Repair; Alterations; Waste; Environmental . . . 42
15. Environmental Indemnification . . . . . . . . . 52
16. Independence of Security . . . . . . . . . . . 52
17. No Other Liens. . . . . . . . . . . . . . . . . 53
18. Management. . . . . . . . . . . . . . . . . . . 54
19 Ground Lease . . . . . . . . . . . . . . . . . 56
20. Sidewalks, Municipal Charges . . . . . . . . . 56
21. Assignment of Rents and Leases . . . . . . . . 57
22. Future Leases . . . . . . . . . . . . . . . . . 60
23. Mortgagor's Obligations as Lessor . . . . . . . 67
24. Leases; Foreclosure . . . . . . . . . . . . . 69
25. Affiliate Subordinate Financing . . . . . . . . 69
26. Events of Default . . . . . . . . . . . . . . . 72
27. Remedies Upon Default . . . . . . . . . . . . . 85
28. Acceleration Interest . . . . . . . . . . . . . 91
29. Late Charge . . . . . . . . . . . . . . . . . . 92
30. Waiver of Statutory Rights. . . . . . . . . . . 93
31. Security Interest . . . . . . . . . . . . . . . 93
32. Right of Entry. . . . . . . . . . . . . . . . . 95
33. Estoppel Certificate. . . . . . . . . . . . . . 95
34. Annual Statements . . . . . . . . . . . . . . . 96
35. Rights Cumulative . . . . . . . . . . . . . . . 98
36. Subrogation . . . . . . . . . . . . . . . . . . 98
37. No Waiver . . . . . . . . . . . . . . . . . . . 99
38. Mortgage Extension. . . . . . . . . . . . . . . 99
39. Indemnification . . . . . . . . . . . . . . . . 100
40. Scope of Liability. . . . . . . . . . . . . 100
41. Attorneys' Fees . . . . . . . . . . . . . . 101
42. Administrative Fees . . . . . . . . . . . . 101
43. Protection of Security . . . . . . . . . . 103
44. Notices . . . . . . . . . . . . . . . . . . 105
45. Release . . . . . . . . . . . . . . . . . . 106
46. Applicable Law. . . . . . . . . . . . . . . 107
47. Invalidity. . . . . . . . . . . . . . . . . 107
48. Captions. . . . . . . . . . . . . . . . . . 107
49. Modifications . . . . . . . . . . . . . . . 108
50. Bind and Inure. . . . . . . . . . . . . . . 108
51. Replacement of Note . . . . . . . . . . . . 108
52. Time of the Essence . . . . . . . . . . . . 109
53. Statutory Condition; Statutory Power
of Sale . . . . . . . . . . . . . . . . . 109
Recording Requested By and When Recorded Return to:
Nutter, McClennen & Fish One International Place Boston, MA 02110-2699 Attn: Robert A. Fishman, Esq.
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE is made as of the day of February, 1996, by CENTER PLAZA ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited partnership, having its principal place of business at 50 Rowes Wharf, Boston, Massachusetts 02110 (hereinafter referred to as "Mortgagor") to CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation having its principal place of business at 900 Cottage Grove Road, Bloomfield, Connecticut 06002 (hereinafter referred to as "Mortgagee").
W I T N E S S E T H:
THAT, to secure (i) payment to Mortgagee of the principal indebtedness of Sixty Million and No/100 Dollars ($60,000,000) together with interest thereon, as evidenced by that certain promissory note (hereinafter referred to as the "Note") of even date herewith, and any renewals, extensions or modifications thereof (including, without limitation, any modification
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increasing the interest rate, the principal amount, the monthly payments or extending the maturity date) given by Mortgagor to Mortgagee and made payable to the order of Mortgagee, with the final payment being due and payable on March 1, 2003 (the "Maturity Date"), in and by which Note Mortgagor promises to pay the said principal indebtedness and interest at the rate and in installments as provided in the Note (the loan represented and evidenced by the Note is herein referred to as the "Loan"), (ii) the performance of the covenants herein contained and the payment of any monies expended by Mortgagee in connection therewith, (iii) the payment of all obligations and the performance of all covenants of Mortgagor under any other loan documents, agreements or instruments between Mortgagor and Mortgagee given in connection with or related to this Mortgage or the Note, and (iv) any and all additional advances made by Mortgagee to protect or preserve the Security (hereinafter defined) or the security interest created hereby on the Security, or for taxes, assessments, or insurance premiums as hereinafter provided or for performance of any of Mortgagor's obligations hereunder or for any other purpose provided herein (whether or not the original Mortgagor remains the owner of the Security at the time of such advances) [all of the aforesaid indebtedness and obligations of Mortgagor from time to time outstanding being herein referred to as the "Indebtedness", and all of the documents, agreements and instruments between Mortgagor and Mortgagee or given by
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Mortgagor, Beacon Properties, L.P., a Delaware limited partnership ("BPLP"), or CP Holding Corp., as Trustee of the Note Holding Trust under Indenture of Trust dated as of November 30, 1994 ("NHT") in favor of Mortgagee, now or hereafter evidencing or securing the repayment of, or otherwise pertaining to, the Indebtedness, including, but not limited to the Environmental Indemnification Agreement (defined and described in Section 15 hereof), the Intercreditor Agreement (defined and described in Section 25 hereof), the Mortgage Assignment (defined and described in Section 25 hereof), the BPLP Pledge (defined and described in Section 25 hereof), the Mortgage Subordination (defined and described in Section 25 hereof) and the Non-Recourse Guaranty (defined and described in Section 25 hereof), being herein collectively referred to as the "Loan Documents"], Mortgagor does hereby mortgage, grant with MORTGAGE COVENANTS, bargain, sell, assign, pledge, transfer, and convey unto Mortgagee and to Mortgagee's successors and assigns forever, all of the following described land, improvements, real and personal property, rents and leases, and all of its estate, right, title and interest therein (hereinafter collectively called the "Security"):
The land described in Exhibit A attached hereto and made a part hereof, situate, lying and being in the City of Boston,
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County of Suffolk, and Commonwealth of Massachusetts (the "Land");
TOGETHER with all buildings and other improvements now or hereafter located on said Land or any part thereof including but not limited to, all extensions, betterments, renewals, renovations, substitutions and replacements of, and all additions and appurtenances to, the Security (the "Improvements");
TOGETHER with all of the right, title and interest of Mortgagor in and to the land lying in the bed of any street, road, highway or avenue in front of or adjoining the Land to the center lines thereof;
TOGETHER with the right to use, in perpetuity, in connection with the operation of the Security the names "Center Plaza", "One Center Plaza", "Two Center Plaza" and "Three Center Plaza" and any other names similar thereto;
TOGETHER with the benefit of and subject to those of the Permitted Encumbrances (as hereinafter defined) listed in Part I of Exhibit B attached hereto and made a part hereof, including, without limitation, all easements now or hereafter located on or appurtenant to the Land and/or Improvements, or under or above the same or any part thereof, and together with all rights-of-way
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and (to the extent assignable) all licenses, permits, approvals and privileges, belonging or in any way appertaining to the Land and/or Improvements including without limitation (i) any drainage ponds or other like drainage areas not located on the Land which may be required for water run-off, (ii) any easements necessary to obtain access from the Land to such drainage areas, or to any other location to which Mortgagor has a right to drain water or sewage, (iii) any land required to be maintained as undeveloped land by the zoning rules and regulations applicable to the Land, and (iv) any easements and agreements which are or may be established to allow satisfactory ingress to, egress from and operation of the Land and/or the Improvements;
TOGETHER with any and all awards hereafter to be made by any municipal or other governmental authorities to the present and all subsequent owners of the Security for the taking of all or any portion of the Security by power of eminent domain, including, without limitation, awards for damage to the remainder of the Security and any awards for any change or changes of grade of streets affecting the Security, which said awards are hereby assigned to Mortgagee, and Mortgagee, at its option, is hereby authorized, directed and empowered (subject to Section 8 below) to collect and receive the proceeds of any such awards from the authorities making the same and to give proper receipts and acquittances therefor, and to apply the same in accordance with
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the applicable provisions of this Mortgage (all of the foregoing Land, Improvements, rights, easements, rights-of-way, licenses, privileges, and awards, collectively, the "Real Property");
TOGETHER with all proceeds, insurance or otherwise, paid for the damage done to any of the Security and all proceeds of the conversion, voluntarily or involuntarily, of any of the Security into cash or liquidated claims;
TOGETHER with all fixtures, machinery, equipment, goods, and every other article of personal property, tangible and intangible, now or hereafter attached to or used in connection with the Real Property, or placed on any part thereof and whether or not attached thereto, appertaining or adapted to the use, management, operation or improvement of the Real Property, insofar as the same and any reversionary right thereto may now or hereafter be owned or acquired by Mortgagor (as more completely described in this paragraph and the next following paragraph, the "Personal Property"), including, but without limitation: all partitions; screens; awnings; shades; blinds; floor coverings; hall and lobby equipment; heating, lighting, plumbing, ventilating, refrigerating, incinerating, elevator, escalator, air conditioning and communication plants or systems with appurtenant fixtures; vacuum cleaning systems; call systems; sprinkler systems and other fire prevention and extinguishing
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apparatus and materials; all equipment, manual, mechanical and motorized, for the construction, maintenance, repair and cleaning of, and removal of snow from, parking areas, walks, underground ways, truck ways, driveways, common areas, roadways, highways and streets; all equipment, manual, mechanical and motorized, for the transportation of customers or employees to and from the facilities on the Real Property; all telephone, computer and other electronic equipment and appurtenances thereto, including software; and all other machinery, pipes, poles, appliances, equipment, wiring, fittings, panels and fixtures; and any proceeds therefrom, any replacements thereof or additions or accessions thereto; all of Mortgagor's rights, but not Mortgagor's obligations, under Mortgagor's leases for Personal Property; all contract rights held by Mortgagor from time to time in existence of whatever nature relating to the Real Property or Personal Property, including, but not limited to, architectural and engineering plans, drawings, tests, reports or studies, contracts for goods or services and management contracts, all warranties and guaranties under such contracts and rights under insurance policies; all rights of Mortgagor under architect's contracts, construction contracts, completion bonds, performance bonds and payment bonds related to the Real Property or Personal Property; all accounts, accounts receivable, parking garage revenues and receivables, contract rights, general intangibles, documents, instruments and chattel paper arising from or in
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connection with the Real Property or Personal Property, including all books and records in connection therewith and reserve accounts required to be established now or at any time in the future under the Loan Documents, and all proceeds of any and all of the same; all rights under all causes of action held by Mortgagor related to the Real Property or Personal Property, including claims relating to construction or the condition of the Improvements; all of Mortgagor's right, title and interest in and to all artwork and sculpture located on the Real Property; and all building materials, supplies and other property delivered to the Real Property for incorporation into the Improvements thereon, all of which, to the extent permitted by law, are declared to be a part of the realty and covered by the lien hereof, but said lien shall not cover any fixture, machinery, equipment or article of personal property which is owned by a tenant and which can be removed from the Real Property by the tenant, but said lien shall include any other fixture, machinery, equipment or article of personal property incorporated into the improvements so as to constitute realty under applicable law;
TOGETHER with all of Mortgagor's books of account and records relating to the Security, including all computers and software relating thereto;
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TOGETHER with all contracts of sale and leases in the nature of a sale of the Real Property, or any portion thereof, now and hereafter entered into and all right, title and interest of Mortgagor thereunder, including, without limitation, cash or securities deposited thereunder to secure performance by the contract purchasers, which deposits Mortgagor may retain unless an Event of Default (as hereinafter defined) exists hereunder; all licenses, permits, franchises, governmental approvals and all sanitary sewer, drainage, water and utility service agreements, reservations and capacities benefiting the Real Property or any part thereof; and all rights of Mortgagor under any covenants, agreements, easements, restrictions or declarations relating to, or as an appurtenance to, the Real Property or the Personal Property or any part thereof;
TOGETHER with all leases, subleases, licenses, concession agreements, occupancy agreements or grants of other possessory interests now or hereafter in force or effect, oral or written, and all renewals, extensions, modifications, replacements and guaranties thereto affecting all or any part of the Land or Improvements;
TOGETHER with all rents, issues, revenues (including garage revenues), profits and income from the Real Property and Personal Property;
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TOGETHER with all of the right, title and interest of Mortgagor in and to all and singular the tenements, hereditaments and appurtenances belonging to or in any way pertaining to the Security; all the estate, right, title and claim whatsoever of Mortgagor, either in law or in equity, in and to the Security; and any and all other, further or additional title, estate, interest or right which may at any time be acquired by Mortgagor in or to the Security, and if Mortgagor shall at any time acquire any further estate or interest in or to the Security, the lien of this Mortgage shall attach, extend to, cover and be a lien upon such further estate or interest automatically without further instrument or instruments, and Mortgagor, upon request of Mortgagee, shall execute such instrument or instruments as shall reasonably be requested by Mortgagee to confirm such lien, subject to the limitations on Mortgagor's liability set forth in Section 40 below;
TO HAVE AND TO HOLD the Security, and each and every part thereof, unto Mortgagee and its successors and assigns forever, for the purposes and uses herein set forth.
AND, Mortgagor hereby further covenants, agrees and warrants (as applicable) as follows:
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1. Payment of Indebtedness. Mortgagor will pay the principal indebtedness and interest thereon in accordance with the provisions of the Note and all prepayment fees, late charges and fees required thereunder, and all extensions, renewals, modifications, amendments and replacements thereof, and will keep and perform all the covenants, promises and agreements, and pay all sums provided in (i) each of the Note or any other promissory note or notes at any time hereafter issued by Mortgagor to evidence the Indebtedness, (ii) this Mortgage, and (iii) any and all other Loan Documents, all in the manner herein or therein set forth. Subject to the limitations of liability set forth in Section 40 of this Mortgage and Section 16 of the Note, Mortgagor shall be fully liable for such payment and performance. If more than one corporation, partnership, trust, limited liability company or other entity or person shall in the future execute this Mortgage as Mortgagor or shall directly assume some or all of the obligations of Mortgagor hereunder, whether as a result of a transfer of an interest in the Security permitted by the Loan Documents, or otherwise as may be agreed to in writing by Mortgagee, then each such entity and person shall be jointly and severally liable for the satisfaction of all obligations and duties of Mortgagor under this Mortgage, subject to the limitations of liability set forth in Section 40 of this Mortgage and Section 16 of the Note.
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2. Covenants of Title. Mortgagor has good and indefeasible title to the entire Real Property in fee simple, has absolute title to the Personal Property (except as to personal property which is leased by Mortgagor, as to which Mortgagor shall have good title to the lessee's interest under the leases), and has good right and full power to sell, mortgage and convey the same; the Security is free and clear of easements, restrictions, liens, leases and encumbrances, except those easements, restrictions, liens, leases and encumbrances listed on Exhibit B hereto or which may hereafter be created in accordance with the terms hereof (the "Permitted Encumbrances"); and Mortgagor will warrant and defend title to the Security against all claims and demands whatsoever except the Permitted Encumbrances. The Permitted Encumbrances also include leases and lease amendments hereafter entered into by Mortgagor in accordance with Section 22 hereof. Mortgagee shall have the right, at its option and at such time or times as it shall deem necessary, to take whatever action it may deem necessary to defend or uphold the lien of this Mortgage or otherwise enforce any of the rights of Mortgagee hereunder or any obligation secured hereby, including without limitation, the right to institute appropriate legal proceedings for such purposes.
3. Usury. It is hereby expressly agreed that if from any circumstances whatsoever fulfillment of any provision of the
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Note, this Mortgage, or any other Loan Documents, at the time performance of such provision shall be due, shall involve transcending the limit of validity presently prescribed by any applicable usury statute or any other law, with regard to obligations of like character and amount, then ipso facto the obligation to be fulfilled shall be reduced to the limit of such validity, so that in no event shall any exaction be possible under the Loan Documents that is in excess of the limit of such validity. In no event shall Mortgagor be bound to pay for the use, forbearance or detention of the money loaned pursuant to the Loan Documents, interest of more than the current applicable legal limit, if any; the right to demand any such excess being hereby expressly waived by Mortgagee.
4. Impositions. Subject to the right of Mortgagor to contest an Imposition (as hereinafter defined) as set forth below and subject to Section 5 below, Mortgagor shall pay, before the last day on which the same may be paid without penalty or interest, all real estate taxes, sewer rents, water charges, municipal electric and all other municipal and governmental assessments, rates, charges, impositions and liens (hereinafter referred to as "Impositions") which now or hereafter are imposed by law upon the Security. Subject to the contest rights hereinafter provided for, if any Imposition is not paid within the time hereinabove specified, Mortgagee shall have the right to
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pay the same, together with any penalty and interest thereon, and the amount or amounts so paid or advanced shall forthwith be payable by Mortgagor to Mortgagee and shall be secured by the lien of this Mortgage; but Mortgagor may in good faith contest, at Mortgagor's own cost and expense, by proper legal proceedings, the validity or amount of any Imposition, on the condition that Mortgagor first shall deposit with Mortgagee or a mutually satisfactory escrow agent pursuant to a mutually satisfactory agreement, as security for the payment of such contested item, an amount equal to the contested item plus all penalties and interest which would be payable if Mortgagor is ultimately required to pay such contested item (with due credit to Mortgagor for interest which will accrue on such deposit if held by such escrow agent, Mortgagee hereby agreeing to permit such escrow agent to invest the same at Mortgagor's direction in the investments permitted under the Tax Escrow Agreement (as defined in Section 5 hereof) unless an Event of Default exists hereunder, in which event Mortgagee shall direct such investments), and on the further condition that no amount so contested may remain unpaid for such length of time as shall permit the Security, or the lien thereon created by the item being contested, to be sold for the nonpayment thereof, or as shall permit an action of foreclosure or the like to be commenced by the holder of any such lien. In the event that there is not an escrow agent, any deposit required hereunder shall be deposited with Mortgagee to
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be held in a service account which is non-interest bearing to Mortgagor. Mortgagor will not claim any credit on, or make any deduction from the Indebtedness by reason of the payment of, any Imposition.
Mortgagor hereby assigns to Mortgagee all rights of Mortgagor now or hereafter arising in and to the refund of any Imposition and any interest thereon. If at the time of receipt of any such refund by Mortgagee there exists no Event of Default hereunder, then Mortgagee shall pay over the same to Mortgagor promptly after demand; if there exists an Event of Default hereunder, Mortgagee may apply said refund in reduction of the Indebtedness in whatever order Mortgagee may elect.
5. Tax Deposits. Mortgagor, Mortgagee and Fowler, Goedecke, Ellis & O'Connor, Incorporated, as Escrow Agent, have entered into a certain Real Estate Tax Escrow and Security Agreement of even date herewith, the terms of which provide for the escrow and payments of money with respect to real estate taxes (the "Tax Escrow Agreement"). Mortgagor covenants to perform its obligations under the Tax Escrow Agreement, and Mortgagee hereby agrees that such performance shall satisfy Mortgagor's obligations under this Mortgage with respect to real estate taxes. In the event that Mortgagor shall default beyond applicable grace periods under the Tax Escrow Agreement, or the
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Tax Escrow Agreement shall be terminated for any reason, or in the event that the Tax Escrow Agreement becomes ineffective or otherwise unenforceable, then the balance of the terms and conditions of this Section 5 shall be applicable and control with respect to real estate taxes.
Mortgagor shall deposit with Mortgagee or with an escrow agent selected by Mortgagor and approved by Mortgagee (not to be unreasonably withheld or delayed) pursuant to an escrow agreement reasonably acceptable to Mortgagee, on the first day of the calendar month immediately following the date of this Mortgage and on the first day of each calendar month thereafter (each of which dates is hereinafter called the "monthly tax deposit date") until the payment in full of the Indebtedness, a sum equal to one-twelfth of the real estate taxes, assessments and any other Impositions which are required to be, or are customarily, paid with real estate taxes or assessments (the "Qualified Impositions") to be levied, charged, assessed or imposed upon or for the Security within one year after said monthly tax deposit date. If on any monthly tax deposit date the amount of Qualified Impositions to be levied, charged, assessed or imposed within the ensuing one year period shall not be fixed, such amount, for the purpose of computing the deposit to be made by Mortgagor hereunder, shall be estimated by Mortgagee, with appropriate
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adjustment when the amount of such Qualified Impositions is fixed.
The sums deposited by Mortgagor under this Section shall be held in an interest bearing account with interest being retained by Mortgagee and free of trust, except as otherwise provided in the grammatical paragraph next following and except to the extent, if any, that applicable law shall otherwise require, and applied in payment of such Qualified Impositions when due (subject to Mortgagor's contest rights set forth above). Mortgagor shall give fifteen (15) days prior written notice to Mortgagee in each instance when a Qualified Imposition is due, specifying the Qualified Imposition to be paid and the amount thereof, the place of payment and the last day on which the same may be paid in order to be within the time limit specified in Section 4 hereof entitled "Impositions". Mortgagee shall not be responsible for any acts of or events affecting the escrow agent nor shall Mortgagee have any obligation or liability to Mortgagor if a different depository, or a different account with the selected escrow agent, would or might pay a greater return on invested funds.
Notwithstanding the foregoing provision, so long as Mortgagor holds title to and controls the Security, Impositions are paid in full when due and there exists no uncured default
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under the Loan Documents, notice of which has been given by Mortgagee to Mortgagor, the interest earned by such escrows, less reasonable escrow costs, will be paid to Mortgagor on each monthly tax deposit date; provided, however, that interest shall be paid only if the escrow account is held by a mutually agreed escrow agent and not by Mortgagee itself.
If for any reason the sums on deposit with Mortgagee or escrow agent under this Section shall not be sufficient to pay a Qualified Imposition within the time specified in Section 4 hereof, then Mortgagor shall, within ten (10) days after demand by Mortgagee, deposit sufficient sums so that Mortgagee may pay such Qualified Imposition in full, together with any penalty and interest thereon, subject to Mortgagor's contest rights set forth above. Mortgagee may change its estimate of Qualified Impositions for any period, on the basis of a change in an assessment or tax rate or on the basis of a prior miscalculation or for any other bona fide reason communicated by Mortgagee to Mortgagor, in which event Mortgagor shall deposit with Mortgagee or escrow agent within ten (10) days after demand the amount of any excess of the deposits which would theretofore have been payable under the revised estimate over the sums actually deposited.
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If any Qualified Imposition shall be levied, charged, assessed or imposed upon or for the Security, or any portion thereof, and if such Qualified Imposition shall also be a levy, charge, assessment or imposition upon or for any other premises not covered by the lien of this Mortgage, then the computation of the amounts to be deposited under this Section shall be based upon the entire amount of such Qualified Imposition and Mortgagor shall not have the right to apportion any deposit with respect to such Qualified Imposition.
Upon an assignment of this Mortgage, Mortgagee shall have the right to arrange to transfer all amounts deposited and still in its possession to the assignee and, provided that the assignee assumes the obligations of Mortgagee with respect to such amounts deposited, Mortgagee shall thereupon be completely released from all liability with respect to such deposit and Mortgagor or the owner of the Security shall look solely to the assignee or transferee in reference thereto.
Upon the payment in full by Mortgagor of the entire Indebtedness, any sums then held by Mortgagee (or escrow agent) under this Section shall be refunded to Mortgagor.
All amounts deposited shall be held by Mortgagee as additional security for the sums secured by this Mortgage, and
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Mortgagor hereby grants to Mortgagee a security interest in such sums, and upon the occurrence of an Event of Default hereunder, Mortgagee may, in its sole and absolute discretion, apply said amounts to the payment of the Indebtedness in whatever order Mortgagee may elect.
Immediately upon receipt of such by Mortgagor, Mortgagor shall deliver to Mortgagee copies of all notices, demands, claims, bills, and receipts in relation to the Qualified Impositions.
Notwithstanding the foregoing provisions, Mortgagee hereby waives the requirement for deposits as to that portion of Qualified Impositions payable directly to the governmental or other authority by tenants under the terms of leases approved by Mortgagee, provided satisfactory proof of payment is promptly furnished to Mortgagee.
6. Change in Taxes. In the event that, by reason of changes in law or in the application or interpretation thereof, any tax (other than general income taxes and similar taxes based on income) shall be due or become due and payable to the United States of America, the Commonwealth of Massachusetts or any political subdivision thereof with respect to the execution and delivery or recordation of this Mortgage or any other Loan
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Document or the interest of Mortgagee in the Security, Mortgagor shall, subject to Mortgagor's contest rights set forth in Section 4 above, which shall be applicable hereto, mutatis mutandis, pay such tax at the time and in the manner required by applicable law and Mortgagor shall hold Mortgagee harmless and shall indemnify Mortgagee against any liability of any nature whatsoever as a result of the imposition of any such tax. Notwithstanding the foregoing, in the event that such tax shall be due or become due and payable as aforesaid in an amount greater than $150,000 and if Mortgagee shall require Mortgagor to make payment thereof or to indemnify Mortgagee as aforesaid, Mortgagor shall have the right to prepay the Indebtedness in full, without paying a prepayment fee. If Mortgagor is not permitted by law to make such payments, the Indebtedness shall, at the option of Mortgagee, become due and payable upon one hundred eighty (180) days notice without Mortgagor being obligated to pay a prepayment fee. Notwithstanding the foregoing, Mortgagee shall not require Mortgagor to pay such taxes or to indemnify Mortgagee as aforesaid, nor will Mortgagee exercise its option to accelerate the Indebtedness pursuant to the preceding sentence, unless it is the policy of Mortgagee to enforce such rights generally (meaning that, over the course of numerous transactions, Mortgagee would more often than not elect to enforce such rights) in connection with similar commercial mortgage loans held by Mortgagee.
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7. Insurance. Mortgagor shall, at all times until the Indebtedness shall be paid in full, keep the Security insured against loss or damage for its full replacement cost (which cost shall be reset once a year at Mortgagee's option) under policies of so-called All Risk Replacement Cost Insurance with Agreed Amount Endorsement (including risks of war and nuclear explosion, if available at commercially reasonable rates), and shall further provide flood insurance (if the Security is situated in an area which is considered a flood risk area by the federal government or any agency thereof), boiler and machinery insurance, earthquake insurance (if available at commercially reasonable rates), rent loss insurance in an amount sufficient to cover the total of all rents accruing from the Security for a one (1) year period, comprehensive general liability insurance in a minimum amount of One Million Dollars ($1,000,000), and excess or umbrella liability of at least Five Million Dollars ($5,000,000), and during any period of restoration, a policy or policies of builder's "all risk" insurance in an amount not less than the full insurable value of the Security against such risks as Mortgagee may reasonably request, and such other appropriate insurance as Mortgagee may reasonably require from time to time, in such amounts and with such companies as shall be reasonably approved by Mortgagee with a Best's rating of A:X or better (except to the extent Mortgagee, in its reasonable discretion, approves a lower Best's rating upon Mortgagor's written request),
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and will deliver the original policy or policies of such insurance (or certified duplicates thereof) to Mortgagee. Each such policy shall provide that the same may not be cancelled or materially modified except upon thirty (30) days prior written notice to Mortgagee, and shall otherwise be in such form as shall be reasonably acceptable to Mortgagee, so that at all times until the payment in full of the Indebtedness, Mortgagee shall have and hold the said policy and policies (or certified duplicates thereof) as further collateral for the payment of all Indebtedness. Each liability policy shall name Mortgagee as an "additional insured"; and each other policy required to be maintained hereunder (other than rent loss insurance) shall name Mortgagee as "loss payee" and provide that all proceeds shall be payable to Mortgagee and that no act or thing done by Mortgagor shall invalidate the policy as against Mortgagee, and shall be endorsed with standard non-contributory mortgagee clauses and lender's loss payee endorsements in favor of and in form reasonably acceptable to Mortgagee. If Mortgagor shall fail to obtain any such policy or policies required by Mortgagee, or shall fail to deliver the same (or certifie...
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