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Document Preview Mortgage, Assignment of Leases, Rents and Contracts, Security Agreement And Fixture Filing |
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Title: |
Mortgage, Assignment of Leases, Rents and Contracts, Security Agreement And Fixture Filing |
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Entities: |
Inland Western Retail Real Estate Trust Inc.; Bell, Boyd & Lloyd; Allstate Insurance Company |
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Date: |
2004 |
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Size: |
Preview shows 16KB of 173KB total |
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Price: |
$55 |
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ID: |
#197181 |
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Allstate Insurance Company
Loan No. 122397
MORTGAGE, ASSIGNMENT OF LEASES,
RENTS AND CONTRACTS, SECURITY AGREEMENT
AND FIXTURE FILING
FROM
INLAND SOUTHEAST STONY CREEK, L.L.C., AS MORTGAGOR
TO
ALLSTATE INSURANCE COMPANY, AS MORTGAGEE
DATED: January 5, 2004
LOAN AMOUNT: $14,162,000
PROPERTY ADDRESS:
STONEY CREEK MARKETPLACE
17130 MERCANTILE BOULEVARD
NOBLESVILLE, INDIANA
<Page>
TABLE OF CONTENTS
<Table>
<Caption>
ARTICLE SECTION DESCRIPTION PAGE NUMBER
------- ------- ----------- -----------
<S> <C> <C> <C>
I. COVENANTS OF MORTGAGOR........................................5
1.01. Performance of Obligations Secured............................5
1.02. Insurance.....................................................5
1.03. Condemnation..................................................7
1.04. Damage to property............................................8
1.05. Escrow Fund for Condemnation and Insurance Proceeds..........10
1.06. Taxes, Liens and other Items.................................11
1.07. Assignment of Leases, Contracts, Rents and profits...........12
1.08. Due on Sale or Encumbrance...................................16
1.09. Preservation and Maintenance of property.....................16
1.10. Use of property..............................................17
1.11. Alterations and Additions....................................17
1.12. Offset Certificates..........................................18
1.13. Mortgagee's Costs and Expenses...............................18
1.14. Protection of Security; Costs and Expenses...................19
1.15. Mortgagor's Covenants Respecting Collateral..................20
1.16. Covenants Regarding Financial Statements.....................23
1.17. Environmental Covenants......................................24
1.18. Further Assurances...........................................25
1.19. Mortgagor's Continued Existence..............................26
II. EVENTS OF DEFAULT............................................26
2.01. Monetary and Performance Defaults............................26
2.02. Bankruptcy, Insolvency, Dissolution..........................27
2.03. Misrepresentation............................................27
2.04. Default under Subordinate Loans..............................27
2.05. Liens........................................................27
2.06. Judgments....................................................27
2.07. Leases.......................................................28
2.08. Mortgagor's Continued Existence..............................28
2.09. Breach of Due on Sale or Encumbrance Provision...............28
2.10. Default under Related Agreements.............................28
III. REMEDIES.....................................................28
3.01. Acceleration.................................................28
3.02. Entry........................................................28
3.03. Judicial Action..............................................30
3.04. Foreclosure..................................................30
3.05. Rescission of Notice of Default..............................33
3.06. Mortgagee's Remedies Respecting Collateral...................33
3.07. Proceeds of Sales........................................... 33
3.08. Condemnation and Insurance Proceeds..........................34
</Table>
<Page>
<Table>
<Caption>
ARTICLE SECTION DESCRIPTION PAGE NUMBER
------- ------- ----------- -----------
<S> <C> <C> <C>
3.09. Waiver of Marshalling, Rights of Redemption, Homestead
and Valuation..............................................34
3.10. Remedies Cumulative..........................................35
3.11. Nonrecourse..................................................35
3.12. Evasion of Prepayment Premium................................37
IV. MISCELLANEOUS................................................37
4.01. Severability.................................................37
4.02. Certain Charges and Brokerage Fees...........................37
4.03. Notices......................................................38
4.04. Mortgagor Not Released; Certain Mortgagee Acts...............39
4.05. Inspection...................................................40
4.06. Release or Reconveyance or Cancellation......................40
4.07. Statute of Limitations.......................................40
4.08. Interpretation.............................................. 40
4.09. Captions.....................................................41
4.10. Consent......................................................41
4.11. Delegation to Subagents .....................................41
4.12. Successors and Assigns.......................................41
4.13. Governing Law................................................41
4.14. Changes in Taxation .........................................41
4.15. Maximum Interest Rate........................................41
4.16. Time of Essence..............................................42
4.17. Reproduction of Documents....................................42
4.18. No Oral Modifications........................................42
4.19. Further Assurance............................................42
</Table>
ii
<Page>
MORTGAGE, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS, SECURITY
AGREEMENT AND FIXTURE FILING is made as of January 5, 2004, from INLAND
SOUTHEAST STONY CREEK, L.L.C., a Delaware limited liability company
("Mortgagor"), whose mailing address is 2901 Butterfield Road, Oakbrook,
Illinois 60523, in favor of ALLSTATE INSURANCE COMPANY, an Illinois insurance
corporation ("Mortgagee") whose mailing address is c/o Allstate Investments,
LLC, Allstate Plaza South, Suite G5C, 3075 Sanders Road, Northbrook,
Illinois, 60062.
In consideration of the indebtedness herein recited and as security for
payment and performance of the payment of both principal and interest and the
other obligations set forth below, Mortgagor has granted, conveyed, bargained,
sold, alienated, enfeoffed, released, confirmed, transferred, pledged, warranted
and mortgaged, and by these presents does hereby grant, convey, bargain, sell,
alien, enfeoff, release, confirm, transfer, pledge, warrant and mortgage unto
Mortgagee, all of Mortgagor's estate, right, title and interest in, to and under
that certain real property located in Noblesville, County of Hamilton, State of
Indiana, more particularly described in EXHIBIT A attached hereto and
incorporated herein by this reference (the "Land");
TOGETHER with all of Mortgagor's now or hereafter acquired estate, right,
title and interest in, to and under all buildings, structures, improvements and
fixtures now existing or hereafter erected on the Land and all right, title and
interest, if any, of Mortgagor in and to the streets and roads, opened or
proposed, abutting the Land to the center lines thereof, all rights of reversion
(including, without limitation, the right of reversion retained in that certain
Limited Warranty Deed recorded with the Hamilton County Recorder of Deeds as
Instrument No. 2000-57951 and re-recorded as Instrument No. 2001-25776), and
strips within or adjoining the Land, the air space and right to use said air
space above the Land, all rights of ingress and egress on or within the Land,
all easements, rights and appurtenances thereto or used in connection with the
Land, including without limitation, all lateral support, alley and drainage
rights, all revenues, income, rents, cash or security deposits, advance rental
deposits, profits, royalties, and other benefits thereof or arising from the use
or enjoyment of all or any portion thereof (subject however to the rights and
authorities given herein to Mortgagor to collect and apply such revenues, and
other benefits), all interests in and rights, royalties and profits in
connection with all minerals, oil and gas and other hydrocarbon substances
thereon or therein, and water stock, all options to purchase or lease, all
development or other rights relating to the Land or the operation thereof or
used in connection therewith (including, without limitation, all concurrency
rights, permits, prepaid utilities and impact fees of any nature, storm water
drainage rights and reservations, sanitary sewer rights and reservations,
potable water rights and reservations, allocations of traffic trips, use, rights
and reservations, law enforcement, library, park and educational fees, uses,
rights and reservations, and any tax and utility refunds and rebates,
irrespective of the time period to which such refunds and rebates relate),
including all Mortgagor's right, title and interest in all fixtures,
attachments, partitions, machinery, equipment, building materials, appliances
and goods of every nature whatever, whether now or hereafter located on, or
attached to, the Land, all of which, including replacements and additions
thereto, shall to the fullest extent permitted by law and for the purposes of
this Mortgage, be deemed to
1
<Page>
be real property and, whether affixed or annexed thereto or not, be deemed
conclusively to be real property; and Mortgagor agrees to execute and deliver,
from time to time, such further instruments and documents as may be required by
Mortgagee to confirm the legal operation and effect of this Mortgage on any of
the foregoing. All of the foregoing property described in this Section (the
"Improvements") together with the Land and the hereinafter defined Collateral,
shall be hereinafter referred to as the "Property").
MORTGAGOR HEREBY FURTHER GRANTS to Mortgagee a security interest in, and
assigns, all of Mortgagor's now existing or hereafter acquired right, title and
interest in the following with the understanding and intention that this
Mortgage shall also constitute a security agreement pursuant to the Uniform
Commercial Code of the State of Indiana.
(A) All equipment, fixtures, inventory, goods, farm goods, instruments,
appliances, furnishings, machinery, tools, raw materials, component parts, work
in progress and materials, and all other tangible personal property of
whatsoever kind, used or consumed in the improvement, use or enjoyment of the
Property now or any time hereafter owned or acquired by Mortgagor, wherever
located and all products thereof whether in possession of Mortgagor or whether
located on the Property or elsewhere;
(B) To the extent such general intangibles are assignable, all general
intangibles relating to the Property or the design, development, operation,
management and use of the Property (other than trademarks that contain the word
"Inland"), including, but not limited to, (1) all names under which or by which
the Property may at any time be owned and operated or any variant thereof, and
all goodwill in any way relating to the Property and all service marks and
logotypes used in connection therewith, (2) all permits, licenses,
authorizations, variances, land use entitlements, approvals, consents,
clearances, and rights obtained from governmental agencies issued or obtained in
connection with the Property, (3) all permits, licenses, approvals, consents,
authorizations, franchises and agreements issued or obtained in connection with
the construction, use, occupation or operation of the property, (4) all
materials prepared for filing or filed with any governmental agency, and (5) all
of the books and records of Mortgagor in any way relating to construction or
operation of the Property;
(C) All shares of stock or partnership interest or other evidence of
ownership of any part of the Property that is owned by Mortgagor in common with
others, including all water stock relating to the property, if any, and all
documents or rights of membership in any owners' or members' association or
similar group having responsibility for managing or operating any part of the
Property provided, however, that the foregoing shall not include any ownership
interests in Mortgagor;
(D) All accounts, deposit accounts, supporting obligations,
letter-of-credit rights, tax or insurance escrows or other escrows held pursuant
to or in connection with this Mortgage or otherwise in connection with the
Property, accounts receivable, instruments, documents, documents of title,
general intangibles, rights to payment and contract rights of every kind, all of
Mortgagor's rights, direct or indirect, under or pursuant to any and all
construction, development, financing, guaranty, indemnity, maintenance,
management, service, supply and warranty agreements, commitments, contracts,
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