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Corporate Property Associates 15 / Morgan Stanley Dean Witter Capital I - Leasehold Mortgage And Security Agreement
MSDWMC Loan No. 02-11559
ENERGY (NJ) QRS 15-10, INC., as mortgagor
(Borrower)
to
MORGAN STANLEY DEAN WITTER MORTGAGE CAPITAL INC., as mortgagee (Lender)
LEASEHOLD MORTGAGE AND SECURITY
AGREEMENT
Dated: August 16, 2002
Location: Perryville Corporate Park - Perryville I
Clinton, New Jersey
County: Hunterdon
PREPARED BY AND UPON
RECORDATION RETURN TO:
Paul, Hastings, Janofsky & Walker LLP
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, California 90071
Attention: Margaret Frick Bertisch
TABLE OF CONTENTS
Page
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ARTICLE I Grants Of Security .................................. 1
Section 1.1 Property Mortgaged .......................... 1
Section 1.2 Assignment of Leases and Rents .............. 4
Section 1.3 Security Agreement .......................... 4
Section 1.4 Pledge of Monies Held ....................... 4
Section 1.5 Conditions to Grant ......................... 4 ARTICLE II Debt and Obligations Secured ........................ 4
Section 2.1 Debt ........................................ 4
Section 2.2 Other Obligations ........................... 5
Section 2.3 Debt and Other Obligations .................. 5
Section 2.4 Payments .................................... 5 ARTICLE III Borrower Covenants .................................. 6
Section 3.1 Payment of Debt. ............................ 6
Section 3.2 Incorporation by Reference .................. 6
Section 3.3 Insurance ................................... 6
Section 3.4 Payment of Taxes, etc. ...................... 9
Section 3.5 Escrow Fund. ................................ 10
Section 3.6 Condemnation ................................ 10
Section 3.7 Restoration After Casualty/Condemnation ..... 11
Section 3.8 Leases and Rents ............................ 15
Section 3.9 Maintenance and Use of Property ............. 17
Section 3.10 Waste ....................................... 17
Section 3.11 Compliance With Laws ........................ 17
Section 3.12 Books and Records ........................... 18
Section 3.13 Payment For Labor and Materials ............. 20
Section 3.14 Performance of Other Agreements ............. 20
Section 3.15 Change of Name, Identity or Structure ....... 21
Section 3.16 Existence ................................... 21
Section 3.17 Management .................................. 21 ARTICLE IV Special Covenants ................................... 21
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Section 4.1 Property Use ............................... 21
Section 4.2 Single Purpose Entity ...................... 22 ARTICLE V Representations and Warranties ............. 25
Section 5.1 Warranty of Title .......................... 25
Section 5.2 Legal Status and Authority ................. 25
Section 5.3 Validity of Documents ...................... 25
Section 5.4 Litigation ................................. 25
Section 5.5 Status of Property ......................... 26
Section 5.6 No Foreign Person .......................... 27
Section 5.7 Separate Tax Lot ........................... 27
Section 5.8 Leases ..................................... 27
Section 5.9 Financial Condition ........................ 28
Section 5.10 Business Purposes .......................... 28
Section 5.11 Taxes ...................................... 28
Section 5.12 Mailing Address ............................ 28
Section 5.13 No Change in Facts or Circumstances ........ 28
Section 5.14 Disclosure ................................. 28
Section 5.15 Third Party Representations ................ 28
Section 5.16 Illegal Activity ........................... 29
Section 5.17 Regulations T, U and X ..................... 29
Section 5.18 Non-Consolidation .......................... 29 ARTICLE VI Obligations and Reliance ................... 29
Section 6.1 Relationship of Borrower and Lender ........ 29
Section 6.2 No Reliance on Lender ...................... 29
Section 6.3 No Lender Obligations ...................... 29
Section 6.4 Reliance ................................... 30 ARTICLE VII Further Assurances ......................... 30
Section 7.1 Recording of Security Instrument, etc. ..... 30
Section 7.2 Further Acts, etc. ......................... 30
Section 7.3 Changes in Tax, Debt Credit and Documentary
Stamp Laws ................................. 31
Section 7.4 Estoppel Certificates ...................... 31
Section 7.5 Flood Insurance ............................ 32
Section 7.6 Replacement Documents ...................... 32
-ii- ARTICLE VIII Due On Sale/Encumbrance .................... 33
Section 8.1 No Sale/Encumbrance ........................ 33
Section 8.2 Sale/Encumbrance Defined ................... 33
Section 8.3 Lender's Rights ............................ 34
Section 8.4 Permitted One Time Transfer ................ 34 ARTICLE IX Prepayment ................................. 37
Section 9.1 Prepayment ................................. 37 ARTICLE X Default .................................... 37
Section 10.1 Events of Default .......................... 37 ARTICLE XI Rights and Remedies ........................ 39
Section 11.1 Remedies ................................... 39
Section 11.2 Application of Proceeds .................... 42
Section 11.3 Right to Cure Defaults ..................... 42
Section 11.4 Actions and Proceedings .................... 42
Section 11.5 Recovery of Sums Required To Be Paid ....... 42
Section 11.6 Examination of Books and Records ........... 42
Section 11.7 Other Rights, etc .......................... 43
Section 11.8 Right to Release Any Portion of the Property 43
Section 11.9 Violation of Laws .......................... 43
Section 11.10 Right of Entry ............................. 43
Section 11.11 Subrogation ................................ 44 ARTICLE XII Environmental Matters ...................... 44
Section 12.1 Environmental Representations and Warranties 44
Section 12.2 Environmental Covenants .................... 45
Section 12.3 Lender's Rights ............................ 45
Section 12.4 Operations and Maintenance Programs ........ 46 ARTICLE XIII Indemnifications ........................... 46
Section 13.1 General Indemnification .................... 46
Section 13.2 Mortgage and/or Intangible Tax ............. 47
Section 13.3 Duty to Defend; Attorneys' Fees and Other
Fees and Expenses ........................ 47
Section 13.4 Environmental Indemnity .................... 47 ARTICLE XIV Waivers .................................... 47
Section 14.1 Waiver of Counterclaim ..................... 47
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Section 14.2 Marshalling and Other Matters .............. 47
Section 14.3 Waiver of Notice ........................... 48
Section 14.4 Waiver of Statute of Limitations ........... 48
Section 14.5 Sole Discretion of Lender .................. 48
Section 14.6 WAIVER OF TRIAL BY JURY .................... 48 ARTICLE XV Exculpation ................................ 48
Section 15.1 Exculpation ................................ 48 ARTICLE XVI Notices .................................... 49
Section 16.1 Notices .................................... 49 ARTICLE XVII Applicable Law ............................. 49
Section 17.1 Choice of Law .............................. 49 ARTICLE XVIII Secondary Market ........................... 51
Section 18.1 Transfer of Loan ........................... 51
Section 18.2 Cooperation ................................ 51 ARTICLE XIX Costs ...................................... 52
Section 19.1 Performance at Borrower's Expense .......... 52
Section 19.2 Legal Fees for Enforcement ................. 52 ARTICLE XX Definitions ................................ 52
Section 20.1 General Definitions ........................ 52
Section 20.2 Headings, etc............................... 53 ARTICLE XXI Miscellaneous Provisions ................... 53
Section 21.1 No Oral Change ............................. 53
Section 21.2 Liability .................................. 53
Section 21.3 Inapplicable Provisions .................... 53
Section 21.4 Duplicate Originals; Counterparts .......... 53
Section 21.5 Number and Gender .......................... 53
Section 21.6 Cross Default .............................. 53 ARTICLE XXII Leasehold Mortgage Provisions .............. 53
Section 22.1 Ground Lease Representations and Warranties 54
Section 22.2 Ground Lease Default ....................... 55
Section 22.3 Replacement Ground Lease ................... 55
Section 22.4 Bankruptcy ................................. 55
Section 22.5 Additional Remedies ........................ 56
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Section 22.6 Arbitration ................................ 56
Section 22.7 Estoppel Certificate ....................... 56
Section 22.8 Assignment of Ground Lease ................. 57
Section 22.9 Merger of Estate ........................... 57 ARTICLE XXIII Special New Jersey Provisions .............. 58
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THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (this "Security Instrument") is made as of the ___ day of August, 2002, by ENERGY QRS (NJ) 15-10, INC., a Delaware corporation, having its principal place of business at c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, Second Floor, New York, New York 10020, as mortgagor ("Borrower") to MORGAN STANLEY DEAN WITTER MORTGAGE CAPITAL INC., a New York corporation, having an address at c/o Wells Fargo Bank, N.A., Commercial Mortgage Servicing, 1320 Willow Pass Road, Suite 205, Concord, California 94520, as mortgagee ("Lender").
RECITALS:
Borrower by its promissory note of even date herewith given to Lender is indebted to Lender in the principal sum of TWENTY-NINE MILLION ONE HUNDRED EIGHTY-FIVE THOUSAND AND 00/100 DOLLARS ($29,185,000.00) (the "Loan Amount") in lawful money of the United States of America due September 1, 2012, if not sooner paid in accordance with the terms of the Note (the note together with all extensions, renewals, modifications, substitutions and amendments thereof shall collectively be referred to as the "Note"), with interest from the date thereof at the rates set forth in the Note, principal and interest to be payable in accordance with the terms and conditions provided in the Note.
Borrower desires to secure the payment of the Debt (as defined in Article 2) and the performance of all of its obligations under the Note and the Other Obligations (as defined in Article 2).
ARTICLE I
GRANTS OF SECURITY
Section 1.1 Property Mortgaged. Borrower does hereby irrevocably mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey to Lender, its successors and assigns, and grant a security interest to Lender, its successors and assigns, in, the following property, rights, interests and estates now owned, or hereafter acquired by Borrower (collectively, the "Property"):
(a) Leasehold Estate. The leasehold estate (the "Leasehold Estate") in the real property described in Exhibit A attached hereto and made a part hereof (the "Land") created by virtue of the Ground Lease Agreement (the "Ground Lease") more particularly described in Exhibit B annexed hereto and made a part hereof, and all rights and privileges created thereunder;
(b) Additional Land. All additional lands, estates and development rights hereafter acquired by Borrower for use in connection with the Leasehold Estate or the Land and the development of the Land and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this Security Instrument;
(c) Improvements. The buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (the "Improvements");
(d) Easements. All easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel thereof, with the appurtenances thereto;
(e) Fixtures and Personal Property. All machinery, equipment, fixtures (including, but not limited to, all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) and other property of every kind and nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, and usable in connection with the present or future operation and occupancy of the Land and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the Improvements (collectively, the "Personal Property"), and the right, title and interest of Borrower in and to any of the Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopted and enacted by the state or states where any of the Property is located (the "Uniform Commercial Code"), and all proceeds and products of the above;
(f) Leases and Rents. All leases, subleases and other agreements affecting the use, enjoyment or occupancy of the Land and/or the Improvements heretofore or hereafter entered into and all extensions, amendments and modifications thereto, whether before or after the filing by or against Borrower of any petition for relief under 11 U.S.C. Section 101 et seq., as the same may be amended from time to time (the "Bankruptcy Code") (the "Leases") and all right, title and interest of Borrower, its successors and assigns therein and thereunder, including, without limitation, any guaranties of the lessees' obligations thereunder, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, revenues, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the Land and the Improvements, whether paid or accruing before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code (the "Rents") and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt;
(g) Insurance Proceeds. All proceeds of and any unearned premiums on any insurance policies covering the Property, including, without limitation, the right to receive and
-2- apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property;
(h) Condemnation Awards. All awards or payments, including interest thereon, which may heretofore and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property;
(i) Tax Certiorari. All refunds, rebates or credits in connection with a reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction;
(j) Conversion. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims;
(k) Rights. The right, in the name and on behalf of Borrower, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Lender in the Property;
(l) Agreements. All agreements, contracts, certificates, instruments, franchises, permits, licenses, plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any Improvements or respecting any business or activity conducted on the Land and any part thereof and all right, title and interest of Borrower therein and thereunder, including, without limitation, the right, upon the occurrence and during the continuance of an Event of Default (defined below), to receive and collect any sums payable to Borrower thereunder;
(m) Intangibles. All trade names, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property; and
(n) Ground Lease Rights. All appurtenances in respect of or otherwise relating to the Ground Lease, including, without limitation, renewal option and expansion rights, and all estate and rights of Borrower of, in and to (i) all modifications, extensions and renewals of the Ground Lease and all rights to renew or extend the term thereof, (ii) all credits to and deposits of Borrower under the Ground Lease, (iii) all other options, privileges and rights granted and demised to Borrower under the Ground Lease, (iv) all of the right and privilege of Borrower to terminate, cancel, abridge, surrender, merge, modify or amend the Ground Lease, and (v) any and all possessory rights of Borrower and other rights or privileges of possession, including, without limitation, Borrower's right to elect to remain in possession of the Property and the Leasehold Estate pursuant to Section 365(h)(1) of the Bankruptcy Code;
(o) Rights Upon Fee Owner Bankruptcy. All of Borrower's claims and rights to damages and any other remedies in connection with or arising from the rejection of the Ground
-3- Lease by the lessor under the Ground Lease (including any successors and assigns thereof, "Fee Owner") or any trustee, custodian or receiver appointed pursuant to the Bankruptcy Code in the event that there shall be filed by or against Fee Owner any petition, action or proceeding under the Bankruptcy Code or under any other similar federal or state law now or hereafter in effect (collectively, "Fee Owner's Bankruptcy"); and
(p) Other Rights. Any and all other rights of Borrower in and to the items set forth in Subsections (a) through (o) above.
Section 1.2 Assignment of Leases and Rents. Borrower hereby absolutely and unconditionally assigns to Lender Borrower's right, title and interest in and to all current and future Leases and Rents; it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Nevertheless, subject to the terms of this Section 1.2 and Section 3.8, Lender grants to Borrower a revocable license to collect and receive the Rents. Borrower shall hold a portion of the Rents sufficient to discharge all current sums due on the Debt for use in the payment of such sums.
Section 1.3 Security Agreement. This Security Instrument is both a leasehold mortgage and a "security agreement" within the meaning of the Uniform Commercial Code. The Property includes both real and personal property and all other rights and interests, whether tangible or intangible in nature, of Borrower in the Property. By executing and delivering this Security Instrument, Borrower hereby grants to Lender, as security for the Obligations (defined in Section 2.3), a security interest in the Personal Property to the full extent that the Personal Property may be subject to the Uniform Commercial Code.
Section 1.4 Pledge of Monies Held. Borrower hereby pledges to Lender any and all monies now or hereafter held by Lender, including, without limitation, any sums deposited in the Escrow Fund (as defined in Section 3.5), Net Proceeds (as defined in Section 3.7) and condemnation awards or payments described in Section 3.6, as additional security for the Obligations until expended or applied as provided in this Security Instrument.
Section 1.5 Conditions to Grant. TO HAVE AND TO HOLD the above granted and described Property unto and to the use and benefit of Lender, and the successors and assigns of Lender, forever; PROVIDED, HOWEVER, these presents are upon the express condition that, if Borrower shall well and truly pay to Lender the Debt at the time and in the manner provided in the Note and this Security Instrument, shall well and truly perform the Other Obligations as set forth in this Security Instrument and shall well and truly abide by and comply with each and every covenant and condition set forth herein and in the Note, these presents and the estate hereby granted shall cease, terminate and be void.
ARTICLE II
DEBT AND OBLIGATIONS SECURED
Section 2.1 Debt. This Security Instrument and the grants, assignments and transfers made in Article 1 are given for the purpose of securing the payment of the following, in such order of priority as Lender may determine in its sole discretion (the "Debt"):
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(a) the indebtedness evidenced by the Note in lawful money of the United States of America;
(b) interest, default interest, late charges and other sums, as provided in the Note, this Security Instrument or the Other Security Documents (defined below);
(c) the Default Consideration (as defined in the Note), if any;
(d) all other moneys agreed or provided to be paid by Borrower in the Note, this Security Instrument or the Other Security Documents;
(e) all sums advanced pursuant to this Security Instrument to protect and preserve the Property and the lien and the security interest created hereby; and
(f) all sums advanced and costs and expenses incurred by Lender in connection with the Debt or any part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof, or the acquisition or perfection of the security therefor, whether made or incurred at the request of Borrower or Lender.
Section 2.2 Other Obligations. This Security Instrument and the grants, assignments and transfers made in Article 1 are also given for the purpose of securing the performance of the following (the "Other Obligations"):
(a) all other obligations of Borrower contained herein;
(b) each obligation of Borrower contained in the Note and in the Other Security Documents; and
(c) each obligation of Borrower contained in any renewal, extension, amendment, modification, consolidation, change of, or substitution or replacement for, all or any part of the Note, this Security Instrument or the Other Security Documents.
Section 2.3 Debt and Other Obligations. Borrower's obligations for the payment of the Debt and the performance of the Other Obligations shall be referred to collectively below as the "Obligations."
Section 2.4 Payments. Unless payments are made in the required amount in immediately available funds at the place where the Note is payable, remittances in payment of all or any part of the Debt shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by Lender in funds immediately available at the place where the Note is payable (or any other place as Lender, in Lender's sole discretion, may have established by delivery of written notice thereof to Borrower) and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practice of the collecting bank or banks. Acceptance by Lender of any payment in an amount less than the amount then due shall be deemed an acceptance on account only, and the failure to pay the entire amount then due shall be and continue to be an Event of Default.
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ARTICLE III
BORROWER COVENANTS
Borrower covenants and agrees that:
Section 3.1 Payment of Debt. Borrower will pay the Debt at the time and in the manner provided in the Note and in this Security Instrument.
Section 3.2 Incorporation by Reference. All the covenants, conditions and agreements contained in (a) the Note and (b) all and any of the documents other than the Note or this Security Instrument now or hereafter executed by Borrower and/or others and by or in favor of Lender, which wholly or partially secure or guaranty payment of the Note (the "Other Security Documents"), are hereby made a part of this Security Instrument to the same extent and with the same force as if fully set forth herein.
Section 3.3 Insurance.
(a) Borrower shall obtain and maintain, or cause to be maintained, insurance for Borrower and the Property providing at least the following coverages:
(i) Property Insurance. Insurance with respect to the Improvements and building equipment insuring against any peril now or hereafter included within the classification "All Risks of Physical Loss" in amounts at all times sufficient to prevent Lender from becoming a co-insurer within the terms of the applicable policies and under applicable law, but in any event such insurance shall be maintained in an amount which, after application of deductible, shall be equal to the full insurable value of the Improvements and building equipment, the term "full insurable value" to mean the actual replacement cost of the Improvements and building equipment (without taking into account any depreciation, and exclusive of excavations, footings and foundations, landscaping and paving) determined annually by an insurer, a recognized independent insurance broker or an independent appraiser selected and paid by Borrower and in no event less than the coverage required pursuant to the terms of any Lease;
(ii) Liability Insurance. Comprehensive general liability insurance, including bodily injury, death and property damage liability, insurance against any and all claims, including all legal liability to the extent insurable and imposed upon Lender and all court costs and attorneys' fees and expenses, arising out of or connected with the possession, use, leasing, operation, maintenance or condition of the Property in such amounts as are generally available at commercially reasonable premiums and are generally required by institutional lenders for properties comparable to the Property but in any event for a combined single limit of at least $10,000,000;
(iii) Workers' Compensation Insurance. Statutory workers' compensation insurance with respect to any work on or about the Property;
(iv) Business Interruption Insurance. Business interruption and/or loss of "rental income" insurance in an amount sufficient to avoid any co-insurance penalty and to provide proceeds which will cover a period of not less than eighteen (18) months, from the date
-6- of casualty or loss, the term "rental income" to mean the sum of (A) the total then ascertainable Rents payable under the Leases and (B) the total ascertainable amount of all other amounts to be received by Borrower from third parties which are the legal obligation of the tenants, reduced to the extent such amounts would not be received because of operating expenses not incurred during a period of non-occupancy of that portion of the Property then not being occupied;
(v) Boiler and Machinery Insurance. Broad form boiler and machinery insurance (without exclusion for explosion) covering all boilers or other pressure vessels, machinery, and equipment located in, on or about the Property and insurance against loss of occupancy or use arising from any breakdown in such amounts as are generally required by institutional lenders for properties comparable to the Property;
(vi) Flood Insurance. If required by Subsection 5.5(j) hereof, flood insurance in an amount at least equal to the lesser of (A) the principal balance of the Note, or (B) the maximum limit of coverage available for the Property under the National Flood Insurance Act of 1968, The Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended;
(vii) Builder's Risk Insurance. At all times during which structural construction, repairs or alterations are being made with respect to the Improvements (A) owner's contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in Subsection 3.3(a)(i) written in a so-called builder's risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to Subsection 3.3(a)(i), (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;
(viii) Terrorism Insurance. The comprehensive all risk insurance and business income insurance policies required under subsections (i) and (iv) above shall be required to cover perils of terrorism and acts of terrorism in an amount equal to Fifty Million Dollars ($50,000,000) and with a deductible no greater than two percent (2%) of the "full insurable value" of the Property (as more specifically defined in subsection (i) above) so long as such insurance coverage is available at commercially reasonable rates (as determined by Lender in its sole discretion); provided however, if a Rating Agency in connection with a Securitization of the Loan or in connection with its rating surveillance of the certificates issued pursuant to a Securitization of the Loan would not provide or maintain a rating for any portion of the Loan or such certificates which would otherwise be available but for the failure to maintain such terrorism insurance, Borrower will so maintain such insurance if obtainable from any insurer or any Governmental Authority (for the maximum amount obtainable up to the amounts set forth in subsections (i) and (iii) above and with deductibles no greater than those provided in subsections (i) and (iii) above); and
(ix) Other Insurance. Such other insurance with respect to the Property against loss or damage of the kinds from time to time customarily insured against and in such amounts as are required by institutional lenders for properties comparable to the Property.
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(b) All insurance provided for in Subsection 3.3(a) hereof shall be obtained under valid and enforceable policies (the "Policies" or in the singular, the "Policy"), and shall be issued by one or more domestic primary insurer(s) having (i) a general policy rating of A or better and a financial class of A:VII or better by A.M. Best Company, Inc. (or if a rating of A.M. Best Company, Inc. is no longer available, a similar rating from a similar or successor service) and (ii) a claims paying ability rating by a credit rating agency approved by Lender or which actually rates this Loan (a "Rating Agency") of not less than A by Standard & Poor's Corp. or such comparable rating by such other Rating Agency. All insurers providing insurance required by this Security Instrument shall be authorized to issue insurance in the state in which the Property is located. The Policy referred to in Subsection 3.3(a)(ii) above shall name Lender as an additional named insured and the Policies referred to in Subsection 3.3(a)(i), (iv), (v), (vi) and (vii), and as applicable (viii), above shall provide that all proceeds be payable to Lender as set forth in Section 3.7 hereof. The Policies referred to in Subsections 3.3(a)(i), (v), (vi) and (vii) shall also contain: (i) a standard "non-contributory mortgagee" endorsement or its equivalent relating, inter alia, to recovery by Lender notwithstanding the negligent or willful acts or omission of Lender; (ii) to the extent available at commercially reasonable rates, a waiver of subrogation endorsement as to Lender; and (iii) an endorsement providing for a deductible per loss of an amount not more than that which is customarily maintained by prudent owners of similar properties in the general vicinity of the Property, but in no event in excess of $100,000, if such coverage availability in the commercial insurance marketplace for properties that are of similar size, scope, and usage of those detailed in the Foster Wheeler Lease (defined below) shall change, Lender, in its sole and absolute discretion, shall review such coverages available at the time. The Policy referred to in Subsection 3.3(a)(i) above shall provide coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements together with an "Ordinance or Law Coverage" or "Enforcement" endorsement if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses. All Policies shall contain (i) a provision that such Policies shall not be cancelled or terminated, nor shall they expire, without at least thirty (30) days' prior written notice to Lender in each instance; and (ii) include effective waivers by the insurer of all claims for Insurance Premiums (defined below) against any loss payees, additional insureds and named insureds (other than Borrower). Certified statements for a senior officer of Foster Wheeler verifying that the Policies have been renewed and paid for shall be delivered to Lender not less than twenty (20) days prior to the expiration date of any of the Policies required to be maintained hereunder. Certificates of insurance with respect to all renewal and replacement Policies shall be delivered to Lender promptly upon Borrower's receipt thereof, provided, however, in no event shall such certificates be delivered more than sixty (60) days after the expiration date of any of the Policies required to be maintained hereunder, which certificates shall bear notations evidencing ...
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