Exhibit 10.106


 


This instrument was prepared by

and when recorded, return to:


 


David A. Grossberg

Schiff Hardin & Waite

6600 Sears Tower

Chicago, Illinois 60606


 


Permanent Real Estate Index
Nos:


 


02-09-301-007, 008, 009, 011,
012

02-09-101-018

02-07-101-001, 002

02-16-101-007, 008


 


AMENDED AND RESTATED

MORTGAGE AND SECURITY AGREEMENT


 


This Amended and Restated Mortgage and Security
Agreement (as the same may be amended, modified, extended, replaced or renewed,
the “Mortgage”) is made as of December 14, 1999, by HUNTLEY
DEVELOPMENT LIMITED PARTNERSHIP, an Illinois limited partnership with a mailing
address of c/o The Prime Group, Inc., 77 W. Wacker Drive, Suite 4200, Chicago,
Illinois 60601 (together with any successors and assigns, the “Mortgagor”),
to, in favor of and for the benefit of U.S. BANK TRUST NATIONAL ASSOCIATION, a
national banking association formerly known as FIRST TRUST NATIONAL
ASSOCIATION, a national banking association, in its capacity as Trustee (as
such term is defined in Article One hereinbelow), with a mailing address of One
Illinois Center, 111 East Wacker Drive, Suite 3000, Chicago, Illinois 60601 (“Mortgagee”),
and pertains to the real estate (“Real Estate”) described in Exhibit
A attached hereto and made a part hereof.


 


ARTICLE ONE

RECITALS


 


1.01                           WHEREAS,
the parties hereto entered into a Mortgage and Security Agreement dated as of
November 19, 1997 (the “Original Mortgage”) contemporaneously with the
closing under that certain Bond Remarketing Contract by and between William
Blair & Company and the Mortgagor dated as of November 19, 1997 (the “Bond
Remarketing Contract”).


 


1.02                           WHEREAS,
pursuant to that certain Village of Huntley, McHenry and Kane Counties, State
of Illinois (the “Village”) Ordinance Number 95-11-27-01 adopted and
approved on November 27, 1995 and pursuant to Ordinance Number 95-12-14-02
adopted and approved on December 14, 1995 (together, and as amended, the “Original
Ordinance”), the Village authorized the issuance of $14,000,000 aggregate
principal amount of Tax Increment Allocation Revenue Bonds


 


1

















 


(Huntley
Redevelopment Project), Series B-1995 (as amended, amended and restated,
supplemented or otherwise modified from time to time and any refinancing
thereof; the “Series B Bonds”) and appointed Mortgagee as trustee, bond
registrar and paying agent for the holders (the “Series B Bondholders”)
of the Series B Bonds.  Pursuant to that
certain Village Ordinance Number 95-12-14-02 adopted and approved
December 14, 1995, the Village issued the Series B Bonds.


 


1.03                           WHEREAS,
the Series B Bonds have a final maturity date of December 1, 2015 (the “Maturity
Date”).  The Bonds are issued
pursuant to the Tax Increment Allocation Redevelopment Act, 65 ILCS §
5/11-74.4-I et seq., as amended (and as heretofore amended, the “Act”)
and bear interest at the rates set forth in said Series B Bonds (the “Interest
Rate”).


 


1.04                           WHEREAS,
the Village in contemplation of the transactions relating to the Bond
Remarketing Contract has adopted and approved Ordinance Number 97-09-18-01 (the
Original Ordinance, as so supplemented, and as further amended, amended and
restated, supplemented or otherwise modified from time to time, the “Series
B Ordinance”), pursuant to which it, among other things, consented to the
addition of the Premises (as hereinafter defined) as additional collateral for
the Series B Bonds.


 


1.05                           WHEREAS,
the parties wish to modify the Original Mortgage by entering into this Amended
and Restated Mortgage and Security Agreement.


 


1.06                           WHEREAS,
capitalized terms utilized herein and not defined herein but defined in that
certain Amended and Restated Intercreditor Agreement (the “Intercreditor
Agreement’) by and among Mortgagor, Mortgagee and Beal Bank, SSB, a Texas
State savings bank (“Beal Bank”), of even date herewith, shall have the
meaning ascribed thereto in the Intercreditor Agreement.


 


1.07                           WHEREAS,
the indebtedness evidenced by the Series B Bonds, including the principal,
interest, prepayment premium, if any, together with all other sums which may be
at any time due, owing, or required to be paid under the Series B Bonds are
herein called the “Indebtedness”.


 


1.08                           WHEREAS,
the term “Trustee” and all other capitalized terms utilized herein and
not defined herein or in the Intercreditor Agreement but defined in the Series
B Ordinance shall have the meaning ascribed thereto in the Series B Ordinance.


 


ARTICLE TWO


THE GRANT


 


Now, therefore, in order to secure (i) payment of the
Indebtedness; and (ii) the payment of any sums due and the performance by
Mortgagor of the covenants, provisions, agreements, and obligations contained
herein (the obligations set forth in clauses (i) and (ii) herein collectively,
the “Obligations”) (whether or not Mortgagor is personally liable for
such payment, performance, and observance), and in consideration of the sum of
Ten and No/100 Dollars ($10.00) in hand paid by Mortgagee to Mortgagor, the
Recitals stated in Article One hereinabove, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Mortgagor hereby grants, bargains, sells, assigns, releases, alienates,
transfers, conveys, and mortgages to Mortgagee and its successors and assigns
forever and hereby represents and warrants to Mortgagee and grants to Mortgagee
and its successors and assigns forever a present and continuing security


 


2

















 


interest in and to Mortgagor’s interest in all of the
following rights, interests, claims, and property (collectively the “Premises”):


 


(a)                                  all
of the real estate described in Exhibit A attached hereto and made a
part hereof (the “Real Estate”);


 


(b)                                 all
estate, claim, demand, right, title, and interest of Mortgagor now owned or
hereafter acquired, including without limitation, any after-acquired title,
franchise, license, remainder, or reversion, in and to (i) any land or vaults
lying within the right-of-way of any street, avenue, way, passage, highway, or
alley, open or proposed, vacated or otherwise, which comprises a portion of the
Real Estate; (ii) any and all alleys, sidewalks, streets, avenues, strips, and
gores of land belonging to the Real Estate; (iii) all rights of ingress and
egress to and from the Real Estate and all adjoining property; (iv) storm and
sanitary sewer, water, gas, electric, railway, telephone, and all other utility
services attributable to the Real Estate; (v) all land use, zoning
developmental rights and approvals, all air rights, water, water rights, water
stock, gas, oil, minerals, coal, and other substances of any kind or character
underlying or relating to the Real Estate or any part thereof; and (vi) each
and all of the tenements, hereditament, easements, appurtenances, other rights,
liberties, reservations, allowances, and privileges relating to the Real Estate
or in any way now or hereafter appertaining thereto, including homestead and
any other claim at law or in equity (collectively the “Appurtenances”);


 


(c)                                  all
right, title, and interest of Mortgagor in and to any and all contracts and
leases, written or oral, express or implied, now existing or hereafter entered
into or arising, and specifically and exclusively relating to the improvement,
use, operation, sale, conversion or other disposition of any interest in the
Real Estate, including without limitation all options to purchase or lease the
Real Estate or any portion thereof or interest therein (collectively the “Contract
Rights”);


 


(d)                                 any
rents and any other interests, estates, or other claims of every name, kind, or
nature, both in law and in equity, which Mortgagor now has or may acquire in
the Real Estate (collectively the “Rents”);


 


(e)                                  all
general intangibles of Mortgagor, including without limitation, goodwill,
trademarks, trade names, option rights, permits, licenses, insurance policies
and proceeds therefrom, rights of action, and books and records relating
specifically and exclusively to the Real Estate (collectively the “Intangible
Personal Property”);


 


(f)                                    all
right, title and interest of Mortgagor in and to all fixtures, equipment and
tangible personal property of every kind, nature or description attached or
affixed to the Real Estate, provided the same are used, usable, or intended to
be used for or in connection with any present or future use, occupation,
operation, maintenance, management or enjoyment of the Real Estate
(collectively the “Tangible Personal Property”);


 


(g)                                 any
and all (i) proceeds of any insurance, indemnity, warranty or guarantee payable
to the Trustee, to the Bank or to the Mortgagor from time to time solely with
respect to the Real Estate, Appurtenances, Contract Rights, Rents, Intangible
Personal Property or Tangible Personal Property, (ii) payments (in any form
whatsoever) made or due and payable to the Mortgagor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Real Estate, Appurtenances, Contract
Rights, Rents, Intangible Personal Property or Tangible


 


3

















 


Personal Property by any governmental authority (or any person acting
under color of a governmental authority), (iii) products of the Real Estate,
Appurtenances, Contract Rights, Rents, Intangible Personal Property or Tangible
Personal Property and (iv) other amounts from time to time paid or payable
under or in connection with any of the Real Estate, Appurtenances, Contract
Rights, Rents, Intangible Personal Property or Tangible Personal Property,
including, without limitation, litigation proceeds related thereto (collectively
the “Funds”); provided that if any of the foregoing relates to other
property in addition to the Real Estate, Appurtenances, Contract Rights, Rents,
Intangible Personal Property or Tangible Personal Property, Funds shall include
only that portion of the foregoing proceeds, payments, products and other
amounts reasonably allocable to the Real Estate, Appurtenances, Contract
Rights, Rents, Intangible Personal Property or Tangible Personal Property; and


 


(h)                                 all
other property or rights of Mortgagor of any kind or character related
specifically and exclusively to the Premises.


 


Mortgagor agrees that, without the necessity of any
further act of Mortgagor or Mortgagee, the lien of, and the security interest
created by, this Mortgage shall automatically extend to and include any and all
renewals, replacements, substitutions, accessions to the Premises and any real
property hereafter acquired by Mortgagor which may be contiguous or attached to
the Premises but only to the extent that by law the Premises cannot be used
without such real property.


 


To Have And To Hold the Premises hereby mortgaged and
conveyed or so intended, together with the profits thereof, unto Mortgagee, its
successors and assigns, forever, free from all rights and benefits under and by
virtue of the Homestead Exemption Laws of the State of Illinois (the “State”)
or other jurisdiction in which the Real Estate is located (which rights and
benefits are hereby expressly released and waived), for the uses and purposes
herein set forth.


 


Provided, however,
that upon the earlier of the payment in full of all of the Obligations or the
satisfaction of the provisions set forth in Section 6.14 hereof, the estate,
right, title, and interest of Mortgagee in and to the Premises shall cease and
shall be released at the cost of Mortgagor.


 


ARTICLE THREE


GENERAL AGREEMENTS


 


To protect the security of this Mortgage, Mortgagor further covenants
and agrees as follows:


 


3.01                           Recitals.


 


The recitals set
forth above are true and correct and are by reference incorporated herein.


 


3.02                           General
Covenants and Representations. 
Mortgagor shall and hereby agrees to:


 


(a)                                  keep
the Premises free from mechanics’, materialmen’s or like liens or claims or
other liens or claims of lien other than the Permitted Exceptions (as defined
in Section 3.02(h) hereinbelow) and Contested Liens (as defined in Section 3.03
below);


 


(b)                                 comply
with all statutes, rules, regulations, orders, decrees, and other requirements
of


 


4

















 


any governmental
body, whether federal, state, or local, having jurisdiction over the Premises
and the use thereof and observe and comply with any conditions and requirements
necessary to preserve and extend any and all rights, licenses, permits
(including without limitation zoning variances, special exceptions, and
nonconforming uses), privileges, franchises, and concessions that are
applicable to the Premises or its use and occupancy;


 


(c)                                  make
no material alterations in or to the Premises except as otherwise permitted herein;


 


(d)                                 not
initiate nor acquiesce in any zoning reclassification with respect to the Real
Estate other than as required or permitted under that certain Annexation
Agreement among American National Bank and Trust Company Land Trust
No.110482-04, American National Bank and Trust Company Land Trust No.109743-01,
Mortgagor, Vernon Drendel and Shirley Drendel and the Village of Huntley,
Illinois, as amended from time to time (the “Annexation  Agreement”)
or the Applicable Laws (as hereinbelow defined) without Mortgagee’s prior
written consent, provided, however, that Mortgagor may without
Mortgagee’s prior written consent initiate or acquiesce to the following zoning
reclassifications with respect to the Real Estate: a reclassification of that
portion of the Real Estate lying to the east of Highway 47 from office use to
retail use; and a reclassification of that portion of the Real Estate lying to
the west of Highway 47 from: (x) office to the uses permitted for an Alternate
Use Parcel (as such term is defined in Exhibit C to the Annexation Agreement)
(but excluding any residential use allowed under the Alternate Use Designation,
as such term is defined in Exhibit C to the Annexation Agreement), to the
extent the subject Real Estate is classified as of the date of this Mortgage as
office use); and (y) from business park to office, to the extent the subject
Real Estate is classified as of the date of this Mortgage as business park.
Mortgagor shall provide to Mortgagee notice and copies of all notices, pleadings
and other documentation filed by Mortgagor with the appropriate governmental
authorities in the event of any reclassification permitted pursuant to this
Section 3.02(d);


 


(e)                                  forever
warrant and defend its title to the Premises and the validity, enforceability
and priority of the lien and security interests granted in and by this Mortgage
against the claims and demands of all persons, subject to Permitted Exceptions
and Contested Liens;


 


(f)                                    not
be delinquent on any real estate or property taxes then due and owing by the
Mortgagor on the Premises;


 


(g)                                 not
willfully or intentionally take or permit to be taken any action in bad faith
which would allow Mortgagor to utilize the provisions of Section 4.0l(1,)(iii)
except in the event of there being insufficient funds in the Incremental Taxes
Fund to pay on a timely basis the principal and interest due on the Series B
Bonds; and


 


(h)                                 not
at any time insist upon or plead, or in any manner whatever claim or take any
advantage of, any stay, exemption, or extension law, including, but not by way
of limitation, any Homestead Exemption Law, or any so-called “Moratorium Law”
now or at any time hereafter in force, nor claim, take, or insist upon any
benefit or advantage of or from any law now or hereafter in force providing for
the valuation or appraisement of the Premises, or any part thereof, prior to
any sale or sales thereof to be made pursuant to any provisions herein
contained, or any decree, judgment, or order of any court of competent
jurisdiction; or after such sale or sales claim or exercise any rights under
any statute now or hereafter in force to redeem Premises so sold, or any part
thereof,


 


5

















 


or relating to the marshaling thereof, upon foreclosure sale or other enforcement
hereof. Mortgagor acknowledges that the Premises do not constitute agricultural
real estate, as said term is defined in Section 15-1201 of the Foreclosure Act,
or residential real estate as defined in Section 15-1219 of the Foreclosure
Act.


 


(i)                                     deliver
to the Mortgagee within 30 days of the end of each calendar quarter throughout
the term of this Mortgage a Quarterly Construction Update in the form of Exhibit
B attached hereto which Mortgagor shall make available to any individual,
corporation, partnership, joint venture, trust or unincorporated organization,
limited liability company, joint stock company or other similar organization,
government or any political subdivision thereof, court, or any other legal
entity, whether acting in an individual, fiduciary or other capacity (all of
the foregoing collectively, “Persons”; each individually, as a “Person”)
who holds 10% or more of the Series B Bonds.


 


Mortgagor hereby further covenants with and warrants
to Mortgagee that as of the execution and delivery of this Mortgage, Mortgagor
owns the Premises and has good, indefeasible estate therein, in fee simple and
that the Premises are free from all encumbrances whatsoever (and any claim of
any other Person thereto) other than those encumbrances set forth on Exhibit
C attached hereto or otherwise permitted by Mortgagee in writing (“Permitted
Exceptions”);


 


3.03                           Property
Taxes and Contest of Liens. Mortgagor shall be responsible for the payment,
when first due and owing and before delinquency and before any penalty
attaches, of all real estate and personal property taxes and assessments
(general or special), water charges, sewer charges, and any other charges,
fees, taxes, claims, levies, expenses, liens, and assessments, ordinary or
extraordinary, governmental or nongovernmental, statutory or otherwise, that
may be asserted against the Premises or any part thereof or interest therein (“Real
Estate Taxes”).  Notwithstanding
anything contained herein to the contrary, Mortgagor may, in good faith and
with reasonable diligence, contest the validity or amount of any such Real
Estate Taxes as well as any mechanics’, materialmen’s or other liens or claims
of lien upon the Premises (collectively “Contested Liens”), provided
that:


 


(a)                                  such
contest shall have the effect of preventing the collection of the Contested
Liens and the sale or forfeiture of Premises or any part thereof or interest
therein to satisfy the same; and


 


(b)                                 Mortgagor
shall first notify Mortgagee in writing of the intention of Mortgagor to
contest the same; and


 


(c)                                  in
the case of Real Estate Taxes, Mortgagor shall have paid such Real Estate Taxes
under protest.


 


3.04                           Tax
and Lien Payments by Mortgagee.


 


(a)                                  Upon
the failure of Mortgagor to pay the Real Estate Taxes required to be paid in
Section 3.03 above (whether pursuant to the first sentence of Section 3.03 or
under protest as permitted under clause (c) of the second sentence of Section
3.03), Mortgagee is authorized, in its sole discretion, to make any payment of
Real Estate Taxes levied, assessed, or asserted against the Premises or any
part thereof in accordance with any tax bill or statement from the appropriate
public office without inquiry into the accuracy or validity of any Real Estate
Taxes, sales, forfeiture of title or claim relating thereto.


 


6

















 


(b)                                 Mortgagee
is also authorized in the place and stead of Mortgagor to make any payment
relating to any apparent or threatened adverse title, lien, claim of lien,
encumbrance, claim, charge or payment otherwise relating to any other purpose
but not enumerated in this Section whenever, in Mortgagee’s reasonable judgment
and discretion, such advance seems necessary to protect the full security
intended to be created by this Mortgage.


 


(c)                                  All
such advances authorized by this Section 3.04 shall constitute additional
Obligations and shall be repaid by Mortgagor to Mortgagee upon demand with
interest from the date of such advance at the interest rate set forth in the
Series B Bonds as the interest rate then applicable to the Series B Bonds.


 


3.05                           Condemnation.


 


(a)                                  Mortgagor
shall give Mortgagee prompt notice of any proceedings, instituted or
threatened, seeking condemnation or taking by eminent domain or any like
process (a “Taking”), of all or any part of the Real Estate, including
any easement thereon or appurtenance thereto (including severance of,
consequential damage to, or change in grade of, streets), and shall deliver to
Mortgagee copies of any and all papers served in connection with any such proceeding.


 


(b)                                 Mortgagor
hereby assigns, transfers and sets over unto Mortgagee the entire proceeds of
any and all awards resulting from any taking (the “Award”). Mortgagee is
hereby authorized to collect and receive from the condemnation authorities the
entire Award and is further authorized to give appropriate receipts and
acquittance therefor.


 


(c)                                  Upon
any Taking, any Award shall be applied, in Mortgagee’s sole discretion: (i) as
a deposit into an escrow to be established and maintained by Mortgagee (the “Escrow
Account”), for the cost of restoring, replacing, repairing or rebuilding
(collectively, “Restoring”) the Appurtenances or any part thereof; or (ii) as a
deposit into the Collateral Account (as defined in Section 3. l0(b)(iv) below)
to be treated as the other funds from time to time deposited into the
Collateral Account in accordance with Section 3. l0(b)(iv) are so treated.


 


If the Award is deposited into the Escrow Account,
said Award, and any and all interest earned thereon (collectively, the “Escrowed
Funds”), shall be deemed to be held by Mortgagee as additional security for
the payment of the principal and interest on the Series B Bonds. If Mortgagee
acquires title to the Premises pursuant to the Foreclosure Act (as defined in
Section 5.01(a) below) then the Escrowed Funds shall be paid to the Bondholders
in an amount not to exceed the outstanding principal and interest on the Series
B Bonds.


 


3.06                           Restoration
Using Escrowed Funds.


 


(a)                                  If
Mortgagee elects to make any Escrowed Funds available for Restoring the Real
Estate and Mortgagee has received the consent of a majority of the Bondholders
to make any such Escrowed Funds available and Mortgagor is desirous of
Restoring the Real Estate, Mortgagor shall complete, in form and with
supporting documentation reasonably required by Mortgagee, an estimate of the
cost of Restoring the Real Estate to the condition in which it existed prior to
such Taking, free from any security interest in, lien or encumbrances on, or
reservation of title to, such Real Estate.


 


(b)                                 The
Escrowed Funds necessary to complete said Restoring shall be held by


 


7

















 


Mortgagee, or if Mortgagee so desires, a disbursing agent selected by
Mortgagee.  Said Escrowed Funds may be
invested using Mortgagor’s taxpayer identification number in an interest
bearing account mutually acceptable to Mortgagor and Mortgagee. The costs and
expenses of administering disbursements shall be paid by Mortgagor. If the
amount of the Escrowed Funds are insufficient to cover the cost of Restoring
the Real Estate, Mortgagor shall pay the cost of such restoration in excess of
the Escrowed Funds before being entitled to any reimbursement from the Escrowed
Funds.


 


(c)                                  Subject
to Mortgagee’s right to limit the number of disbursements, the Escrowed Funds
shall be disbursed from time to time upon Mortgagee’s being furnished with
architect’s certificates, waivers of lien, contractor’s sworn statements, and
such other evidences as Mortgagee or any disbursing agent may reasonably
require to verify the cost and fact of said restoration. Under no circumstances
shall any portion of the Escrowed Funds be released until Mortgagee has been
reasonably assured that the Escrowed Funds remaining after the requested
disbursement will be sufficient to complete the required restoration. No
payment made prior to the final completion of restoration shall exceed
ninety-five percent (95%) of the value of the work performed from time to time
by contractors or subcontractors which have not completed their work.  Any Escrowed Funds remaining after
restoration shall be deposited into the Collateral Account and treated as the
other funds from time to time deposited into the Collateral Account in accordance
with Section 3.l0(b)(iv) are so treated.


 


3.07                           Restrictions
on  Transfer.


 


(a)                                  Mortgagor
shall not without the prior written consent of Mortgagee:


 


(i)                                     create,
effect, lease, contract for, commit or consent to, or suffer or permit any
conveyance, sale, assignment, transfer, hypothecation, lien, pledge, mortgage,
security interest, or other encumbrance or alienation of the Premises or any
part thereof or any interest therein or title thereto other than the Permitted
Exceptions and Contested Liens or;


 


(ii)                                  fail
to pay when the same shall become due all lawful claims and demands of
mechanics, materialmen, laborers and others which, if unpaid, might result in,
or permit the creation of, a lien on the Premises or on the revenues, rents,
issues, income and profits arising therefrom, subject to Mortgagor’s right to
contest any such lien under Section 3.03 hereinabove.


 


(b)                                             Notwithstanding
anything in this Section 3.07 to the contrary: (i) any general or limited
partner of Mortgagor shall have the right to sell, convey, transfer, assign,
pledge, mortgage, or otherwise alienate any or all of such general or limited
partner’s interest in Mortgagor (by way of transfers of stock ownership,
partnership interests, or otherwise) or in any corporation, limited liability
corporation or partnership which constitutes or comprises any portion of any of
Mortgagor’s general or limited partners; and (ii) Mortgagor shall have the
right to take any and all actions permitted under the terms and provisions of
Section 3.10.


 


3.08                                       Continuation
of Covenants and Remedies.


 


If Mortgagee gives
its written consent to a sale or transfer, whether by operation of law,
voluntarily or otherwise, of all or any part of the Premises, or to the partial
release from the lien of this Mortgage of any portion of the Premises,
Mortgagor shall nevertheless not be deemed to be


 


8

















 


released or discharged
from any of its covenants under this Mortgage with respect to the Premises
which have not been so sold, transferred or released, and Mortgagee shall not
be deemed to have waived its right to exercise its remedies under this Mortgage
as to any portion of the Premises remaining subject to the lien hereof.


 


3.09                           Inspection
of Premises.


 


Mortgagor hereby grants to Mortgagee, its agents, employees, consultants
and contractors, upon reasonable advance notice to Mortgagor and during the
normal business hours of Mortgagor, the right to enter upon the Real Estate for
the purpose of making any and all inspections, reports, tests, inquiries and
reviews as Mortgagee (in its sole and absolute discretion) deems necessary to
assess the then current condition of the Premises, or for the purpose of
performing any other acts which Mortgagee is authorized to perform under this
Mortgage. Mortgagor will cooperate with Mortgagee to facilitate each such entry
and the accomplishment of such purposes.


 


3.10                           Release
of Lien of Mortgage.


 


(a)                                  For
purposes of this Section 3.10:


 


(i) “Applicable Laws” shall mean the Act, the
Series B Ordinance, the Annexation Agreement, the Redevelopment Plan, any and
all Series Ordinances and all other federal, state and municipal laws,
ordinances, rules and regulations governing the construction of any
improvements to the Real Estate pursuant to and in accordance with the
Redevelopment Plan.


 


(ii) “Consummate a Sale” shall mean evidence of
the execution of all documents required in order to consummate the sale of fee
simple title in any portion of the Premises to a Third Party Purchaser and the
deposit of all such documents (including the purchase price from such Third
Party Purchaser) in a closing escrow with all conditions precedent to the
closing thereof and recording of the deed conveying such fee simple title to
such portion of the Premises satisfied with the exception of the delivery of
the partial release from Mortgagee.


 


(iii) “Third Party Purchaser” shall mean any
Person wherein none of the individuals, shareholders, beneficiaries, limited or
general partners or members, as the case may be, is an affiliate of Mortgagor.


 


(iv) “Commence the Development” shall mean: (x)
evidence of the execution of all documents required by any third party lender
to finance any construction on any portion of the Premises and the deposit of
all such documents in a money lender’s closing escrow with all conditions precedent
to the funding thereof satisfied with the exception of the delivery of the
partial release from Mortgagee; or (y) if the proposed construction will not be
financed with the proceeds of a loan from any such third party lender, the
delivery to the Mortgagee of: (i) true and correct copies of an executed
general contractor’s contract, architect’s contract and construction escrow
with a title company satisfactory to the Trustee; (ii) evidence that all
building permits and other permits and governmental licenses necessary for
proper execution and completion of the construction contemplated by the general
contractor’s and architect’s contracts have been procured; and (iii) evidence
that sufficient funds are available to commence and complete the construction
contemplated by the general contractor’s and architect’s contracts.


 


9

















 


(b)                                 From
time to time throughout the term of this Mortgage, Mortgagor may Consummate a
Sale or, provided no Default or Event of Default (as defined in the Series B
Ordinance) exists and is continuing or would result therefrom, Commence the
Development of any portion of the Premises, and, subject to the following terms
and conditions, Mortgagor shall be entitled to obtain from Mortgagee a release
in the form attached hereto as Exhibit D necessary to Consummate a Sale
or Commence the Development of such portion of the Premises, and Mortgagee
shall release, from the lien of this Mortgage such portion of the Premises as
Mortgagor from time to time designates, upon receipt by Mortgagee of the
following items:


 


(i)  evidence
satisfactory to the Mortgagee that (A) such portion of the Premises so released
(the “Released Portion”) shall remain subject to the Redevelopment Plan;
and (B) the Premises remaining subject to the lien of this Mortgage (the “Remaining
Mortgaged  Parcels”) shall constitute one or more separate and
distinct parcels and tax lots, provided, however, that if said remaining
portion of the Premises is not comprised of separate tax lots as of the
effective date of the release of the Released Portion from the lien of this
Mortgage: (1) Mortgagor shall have provided Mortgagee as of such date of such
release evidence satisfactory to Mortgagee that Mortgagor has prepared a tax
division petition or plat of subdivision and will timely file the same with the
appropriate county authorities in order that the Remaining Mortgaged Parcels
shall be allocated a separate tax lot number or separate tax lot numbers under
the applicable county’s rules and regulations within the next available time
period for the procurement of the same following the effective date of any such
release or evidence that such county authorities will make an allocation of
taxes based on the conveyance of a portion of the Premises without any petition
or plat being filed; and (2) Mortgagor shall have delivered to Mortgagee a true
and correct copy of a Tax Reproration Agreement with the Third Party Purchaser
providing that until such time as the Remaining Mortgaged Parcels shall have
been so allocated a separate tax lot number or separate tax lot numbers, there
shall be a reasonable allocation of real estate taxes between the Remaining
Mortgaged Parcels and the Released Parcels, said allocation based upon the size
and use of the Remaining Mortgaged Parcels and the applicable Released Parcels;
and


 


(ii)                                  a
certificate from a surveyor, an architectural firm or engineering firm to the
effect that (A) the location, size and dimension of each Released Parcel is
indicated on a field survey or recorded subdivision plat; and (B) the Remaining
Mortgaged Parcels have a right of access to a public road or public
right-of-way for vehicles and pedestrians;


 


(iii)  the
payment to Mortgagee of all reasonable costs and expenses incurred by Mortgagee
in connection with the release of the Released Parcel;


 


(iv)  in
connection with the release of any Released Parcel in accordance with the
foregoing provisions of this Section 3.10(b), Mortgagor shall be required to
deposit into the Collateral Account (as defined in the lntercreditor Agreement)
an amount equal to either:


 


(A)              if, before or after
giving effect to such release, no Default or Event of Default (as defined in
the Series B Ordinance) exists and is continuing, the greater of (x) 50%  of
the appraised value of the Released Parcel (as determined pursuant to that
certain appraisal of Frank John Karth & Associates dated July 1997)
(the “Appraised Value”); or (y) an amount per square foot of the
Released Parcel equal to the amount in the column entitled “Deposit to
Collateral Account” with respect to the Released Parcel set forth in Exhibit
E attached hereto, shall be deposited into the Collateral Account; and (if
the Mortgagor Consummates a Sale)


 


10

















 


the
balance of the Funds shall be disbursed to Mortgagor, subject to the rights, if
any, of Beal Bank to such Funds as set forth in the lntercreditor Agreement; or
(B) if the Mortgagor Consummates a Sale and, either before or after giving
effect to the release, a Default or Event of Default (as defined in the Series
B Ordinance) exists and is continuing, then notwithstanding the forgoing clause
(A), 100% of the Funds shall be deposited in the Collateral Account; provided,
however, that at such time as the Default or Event of Default shall no longer
be continuing, an amount equal to the excess of the amount deposited in the
Collateral Account, as such amount has been reduced to cure the Default or
Event of Default, over the greater of (x) or (y) of Clause 3.l0(b)(iv)(A) above
shall be disbursed to the Mortgagor (subject to the rights, if any, of Beal
Bank to such amounts as set forth in the Intercreditor Agreement).


 


If, at such time as, a certificate of occupancy has
been issued by the appropriate governmental authority with respect to a
Released Parcel, the square footage of the improvements constructed on such
Released Parcel divided by the acreage of such Released Parcel equals or
exceeds the number set forth in the column entitled “Minimum FAR in Feet/Acre”
with respect to such Released Parcel as set forth in Exhibit E attached
hereto, and no Default or Event of Default (as defined in the Series. B
Ordinance) then exists or is continuing, all amounts deposited in the
Collateral Account with respect to such Released Parcel, together with any and
all interest thereon, shall be disbursed to Mortgagor (subject to the rights of
Beal Bank, if any, to such amounts as set forth in the Intercreditor
Agreement). In the event that amounts deposited in the Collateral Account with
respect to any Released Parcel for which a certificate of occupancy has been
issued have not been released pursuant to the immediately preceding sentence,
and no Default or Event of Default (as defined in the Series B Ordinance) then
exists or is continuing, such amounts, together with all interest thereon,
shall be disbursed to Mortgagor (subject to the rights of Beal Bank, if any, to
such amounts as set forth in the Intercreditor Agreement) at such times as the
square footage of all improvements constructed on all Released Parcels for
which certificates of occupancy have been issued divided by the acreage of all
such Released Parcels equals or exceeds the average number of square feet of
floor area per acre set forth in the column entitled “Minimum FAR in Feet/Acre”
with respect to all such Released Parcels as set forth in Exhibit E
attached hereto. Any amounts deposited into the Collateral Account pursuant to
this subsection 3.1 0(b)(iv) or otherwise deposited in the Escrow Account shall
be invested in United States Treasury Bills or money market accounts consisting
of United States Treasury Bills.


 


(c)                                  In
addition to each of the partial releases from the lien of this Mortgage which
Mortgagee may from time to time throughout the term of this Mortgage execute,
Mortgagee shall release the Premises in its entirety from the lien of this
Mortgage at such time as either:


 


(i)                                     the
Series B Bonds have been indefeasibly paid in full; or


 


(ii)                                  for
two consecutive fiscal years, the amount of Incremental Taxes deposited in the
Incremental Taxes Fund, exclusive of all interest earned thereon, during the
period commencing November 15 and terminating on the following
November 14, equals at least one and four-tenths (1.40) times the greater
of:


 


(x)                                   the
average annual debt service on the outstanding Series B Bonds and the
outstanding Series A Bonds provided that (a) such average annual debt


 


11

















 


service is equal to the sum of the average
annual debt service on the outstanding Series B Bonds plus the average
annual debt service on the outstanding Series A Bonds, and (b) such average
annual debt service calculation shall not include those Bond Years which occur
prior to the first principal payment date on the Series A Bonds; or


 


(y)                                 the
actual debt service payable during the succeeding twelve month period on the
Series B Bonds and the Series A Bonds


 


The calculations described in clause (ii) above shall be made on
November 15th of each year throughout the term of this Mortgage.


 


(d)                                 If
Mortgagee holds Escrowed Funds in the Escrow Account and/or holds funds in the
Collateral Account and the Series B Bonds have been paid in full, concurrent
with the release by Mortgagee of the lien of this Mortgage, Mortgagee shall
disburse to Mortgagor, subject to the rights of Beal Bank under the
Intercreditor Agreement, if any, the Escrowed Funds and/or the funds in the
Collateral Account together with all interest thereon.


 


(e)                                  A
portion of the Real Estate included in the description of the Real Estate set
forth on Exhibit A is also separately described on Exhibit A-I
attached hereto and is herein referred to as “Parcel 1B” In the event Mortgagor
shall Commence the Development of Parcel lB by July 10, 1998, Mortgagee
shall release Parcel lB from the lien of this Mortgage pursuant to the
execution and delivery to Mortgagor of a partial release for Parcel lB in the
form attached hereto as Exhibit D. The partial release delivered by
Mortgagee pursuant to this Section 3.10(e) shall not be subject to the terms
and provisions of Section 3.l0(b); however, nothing in this Section 3.10(e)
shall be interpreted to prevent the release of Parcel lB from the lien of this
Mortgage pursuant to Section 3.10(b).


 


(f)                                    A
portion of the Premises consists of the real estate legally described on Exhibit
G attached hereto and made a part hereof (the “Auto Mall Property”).
The term “Non-Buildable Auto Mall Property” shall mean that portion of
the Auto Mall Property described on Exhibit G-l attached hereto and made
a part hereof. The term “Buildable Auto Mall Property” shall mean that
portion of the Auto Mall Property described on Exhibit G-2 attached
hereto and made a part hereof. In the event Mortgagor desires to Consummate a
Sale or Commence the Development of the Auto Mall Property, each of the terms
and provisions of Section 3.10 hereinabove shall apply with, at Mortgagee’s
election, the following variations thereto:


 


(1)                                     In
connection with the release of any portion of the Buildable Auto Mall Property,
the provisions of clause (A) of Section 3.10(b)(iv) shall be deemed
inapplicable and, in lieu thereof, provided further that no Default or Event of
Default (as defined in the Series B Ordinance) exists and is continuing,
Mortgagor shall upon the release of any portion of the Buildable Auto Mall
Property only be required to deposit into the Collateral Account an amount
equal to 50% of the product of: (a) $3.72 multiplied by (b) the square
footage of the then applicable Released Parcel of Buildable Auto Mall Property.


 


(2)                                  Subject
to the further restrictions set forth hereinbelow in this Section 3.10(f), the
provisions of clause A of Section 3. 10(b)(iv) shall not apply with respect to
the release of any portion of the Non-Buildable Auto Mall Property.


 


12

















 


(3)                                  In
addition to complying with all of the other terms and conditions of Section
3.10 (other than clause (A) of Section 3.10(b)(iv) above), Mortgagor shall only
be permitted to obtain a release of the Non-Buildable Auto Mall Property when:
(a) the Incremental Sales Taxes (as such term is defined on Exhibit H
attached hereto) from the Auto Mall Property equal or exceed One Hundred
Seventy Thousand and no/l00ths {$170,000) Dollars for any consecutive twelve
month period; and (b) Mortgagee has approved (which approval will not be
unreasonably withheld or delayed) a restrictive covenant which: (i) will be
effective no later than the date of the release of the NonBuildable Auto Mall
Property; (ii) will encumber the Non-Buildable Auto Mall Property; and (iii)
will by its terms and provisions restrict the use of the Non-Buildable Auto
Mall Property to the following: (A) a ring road dedicated as a public right of
way at approximately the location marked as “Ring-Road” on Exhibit G-3
attached hereto and made a part hereof and an ingress-egress road dedicated as
a public right of way at approximately the location marked as “Ingress-Egress
Road” on Exhibit G-3, which Ring Road and Ingress-Egress Road shall
provide continuous uninterrupted ingress and egress from the Ring Road across
the Ingress-Egress Road to Freeman Road; and (B) a water retention facility to
service the Buildable Auto Mall Property, which water retention facility shall
be located on that portion of the Non-Buildable Auto Mall Property marked as
Lot 12 on Exhibit G-3.


 


(4)                                  Mortgagor
shall also be required to provide to Mortgagee prior to the release of any
portion of the Auto Mall Property evidence reasonably satisfactory to Mortgagee
of a restrictive covenant encumbering all of the Auto Mall Property (which
restrictive covenant may or may not be included within the restrictive covenant
otherwise required to be approved by Mortgagee pursuant to Section 3.10(f)(3)
above with respect to the Non-Buildable Auto Mall Property) requiring that: (A)
the Buildable Auto Mall Property be required to be used solely as and for the
retail sale of automobiles to the general public; and (B) the Non-Buildable
Auto Mall Property shall be owned by a property owners’ association comprised
of the owners of the Buildable Auto Mall Property.


 


(5)                                  Mortgagor
shall be permitted prior to the release of any portion of the Auto Mall
Property to encumber the Auto Mall Property with a private cross-easement
agreement (the “Cross-Easement Agreement”) governing the Auto Mall
Property which grants such easements for the benefit and burden of the lots
constituting the Auto Mall Property as are generally and customarily required
in cross-easement agreements governing commercial retail park developments in
order to create the infrastructure easements required in order to develop the
Auto Mall Property for the uses herein in this Section 3.10(f) above set forth.
The Cross-Easement Agreement shall be subject to the prior written approval of
Mortgagee and shall bind Mortgagor, its successor and assigns, and the grantees
of any portion of the Auto Mall Property and their successors and assigns.


 


3.11                                       Environmental
Compliance.


 


Mortgagor hereby
agrees to comply with any and all federal, state or local laws, rules and
regulations relating to environmental protection including, but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. § 9601 et seq., (“CERCLA”), as amended by the Superfund
Amendments and Reauthorization Act of 1986, and such other legislation, rules
and regulations as are in, or may hereafter come into, effect and apply to
Mortgagor, Mortgagee or the Premises or any occupancy users thereof, whether as
lessees, tenants,


 


13

















 


licensees or otherwise
(collectively, the “Environmental Laws”). Mortgagor shall defend,
indemnify and save and hold Mortgagee harmless from and against any and all
claims, costs or expenses relating to such environmental protection provisions.


 


Mortgagor hereby represents and warrants as of the
date hereof and covenants to Mortgagee that:


 


(a)                                     The
Premises, and the use and operation thereof, are currently in compliance and
will remain in compliance with all Environmental Laws;


 


(b)                                 All
required governmental permits, if any, required under Environmental Laws are in
effect and will remain in effect and the Premises, and the use and operation of
the Premises, comply and will continue to comply with all required governmental
permits;


 


(c)                                  There
are and will be no environmental, health or safety hazards that pertain to any
of the Premises or the business or operations conducted thereon in violation of
any Environmental Laws.  No use,
treatment, storage or disposal of hazardous wastes or hazardous substances has
or will occur on, in or underneath the Premises in violation of any
Environmental Laws. The terms “hazardous wastes” and “hazardous
substances” are defined in CERCLA, the Resource Conservation and Recovery
Act, 42 U.S.C. § 6901 et seq., and Section 311(b)(2)(A) of the Federal
Pollution Control Act, as amended, 33 U.S.C. 1321(b)(2)(A), and the regulations
adopted and publications promulgated pursuant to said laws;


 


(d)                                 There
are no pending or threatened actions or proceedings (or notices of potential
actions or proceedings) by any governmental agency or any other entity alleging
that the Premises are in violation of any Environmental Law. Mortgagor will
promptly notify Mortgagee of any notices, and any pending or threatened action
or proceeding in the future alleging that the Premises are in violation of any
Environmental Law and Mortgagor will promptly cure any condition complained of
and have any such actions and proceedings dismissed to the satisfaction of
Mortgagee;


 


(e)                                  The
business and all operations conducted on the Premises have and will dispose of
their hazardous wastes and hazardous substances in compliance with all
applicable Environmental Laws.  There
are no pending or threatened actions or proceedings concerning the disposal of
hazardous wastes and hazardous substances that pertain to any of the Premises
or the business or operations conducted thereon alleging any violation of any
Environmental Law.  Mortgagor will
promptly notify Mortgagee of any such proceedings in the future, and Mortgagor
will promptly take all reasonable actions to cure and to have any such actions
or proceedings dismissed to the satisfaction of Mortgagee;


 


(f)                                    The
Premises to not constitute Real Property as defined in the Illinois Responsible
Property Transfer Act of 1988, 765 ILCS 90/1 et seq., (1995) (“IRPTA”) and,
therefore, the IRPTA disclosure requirements to not apply to this Mortgage; and


 


(g) Mortgagor
assumes all obligations of compliance of the Premises with all Environmental
Laws.  Any fees, costs and expenses
imposed upon or incurred by Mortgagee at any time and from time to time on
account of any breach of any of the covenants,


 


14

















 


representations or warranties contained in this Section 3.11 shall be
immediately due and payable by Mortgagor to Mortgagee upon demand for
reimbursement for same, and shall become part of the Obligations.  Mortgagor hereby covenants and agrees to
protect, defend, indemnify, and hold harmless Mortgagee from any and all such
costs and expenses.


 


3.12                           Further
Assurances


 


Mortgagor shall do all acts necessary to keep valid and effective the
lien and security interest created by this Mortgage and to carry into effect
its objectives and to protect the Mortgagee. Mortgagor shall upon the request
of Mortgagee from time to time execute, acknowledge and deliver all such
additional papers and instruments and perform all such further acts as
Mortgagee deems reasonably necessary to evidence, perfect or confirm the liens
and security interests, or the priority thereof, created by this Mortgage.


 


Without limited the generality of the foregoing, Mortgagor will
promptly and, insofar as not contrary to applicable law, at Mortgagor’s
expense, execute, record, re-record, file and refile in such offices, at such
times and as often as may be necessary, this Mortgage, additional mortgages,
security agreements, and every other instrument in addition to or supplemental
hereto, including applicable financing statements, continuation statements,
affidavits or certificates as may be necessary to create, perfect, maintain,
continue, extend and/or preserve the liens, encumbrances and security interests
intended to be granted and created in and by this Mortgage and the rights and
remedies of Mortgagee and Mortgagor hereunder. 
Upon request of Mortgagee, Mortgagor shall promptly supply evidence of
fulfillment of the foregoing acts and further assurances.


 


ARTICLE FOUR


EVENTS OF DEFAULT


 


4.01                           Defaults.


 


It
shall constitute an event of default (“Default”) of and under this
Mortgage if any of the following events shall occur:


 


(a)                                              Mortgagor
shall fail to timely observe, perform or discharge any of the Obligations
(other than the Obligations described in Section 4.01(b) hereof), and any such
failure shall remain unremedied for thirty (30) days (the “Grace Period”)
after notice to Mortgagor of the occurrence of such failure; provided, however,
that Mortgagee may, at its option, extend any applicable Grace Period up to an
additional ninety (90) days if Mortgagee determines in good faith that: (i)
such default cannot reasonably be cured within such Grace Period but can be
cured within the additional ninety (90) days; and (ii) Mortgagee’s immediate
exercise of any remedies provided in this Mortgage or by law is not necessary
for the protection or preservation of the Premises or Mortgagee’s security
interest therein or lien thereon, and Mortgagor shall promptly commence and
diligently pursue the cure of such default; or


 


(b)                                 the
Village has failed to pay principal and interest payments under the Series B
Bonds as and when required to be paid pursuant to Sections 3 and 5A of the
Series B Ordinance (a “Bond Payment Default”) and, upon the occurrence
of any such Bond Payment Default:


 


(i)                                     the
Village has failed to issue tax exempt bonds, the proceeds of which have been
so


 


15

















 


designated by the Village to be used to cure the Bond
Payment Default; or


 


(ii)                                  Neither
Beal Bank nor Mortgagor shall have elected to pay to Mortgagee, on behalf of
and for the benefit of the Bondholders, an amount equal to: (x) the principal
due under the Series B Bonds as of the date of the Bond Payment Default; plus
(y) an amount equal to the interest due on the Series B Bonds as of the Bond Payment
Default divided by an amount equal to the following calculation: the number
“1.00” less the maximum federal corporate income tax rate as of the date of the
Bond Payment Default; or


 


(iii)                               Neither Mortgagor nor
Beal Bank shall have elected to: (a) direct Mortgagee to call a mandatory
tender of the Series B Bonds in accordance with Section 5(d)  of
the Series B Ordinance, said direction in the form of Exhibit F attached
hereto; and (b) deposit sufficient cash with Mortgagee, simultaneously with
such direction to Mortgagee, in an amount necessary to purchase all but not
less than all of the outstanding Series B Bonds at a purchase price of par plus
accrued and unpaid interest, if any, plus (provided the Series B Bonds
are tendered on or prior to November 30, 2006) two percent (2%) of the
principal amount of such Series B Bonds outstanding. Upon receipt of such
direction and sufficient cash deposit, Mortgagee hereby agrees to call for a
Mandatory Tender of the Series B Bonds pursuant to Section 5(d) of the Series B
Ordinance, to cause the transfer of the beneficial ownership of the Series B
Bonds in accordance with Sections 4 and 5 of the Original Ordinance to
Mortgagor or Beal Bank, as the case may be, arid to deliver such tendered
Series B Bonds to Mortgagor or Beal Bank, as the case may be, or their
respective assigns or designees; provided, however, that if Mortgagor and Beal
Bank both elect to direct a mandatory tender, the Mortgagee shall direct the
mandatory tender for the benefit of Beal Bank and shall return any funds
deposited by Mortgagor, provided,  however, that Beal Bank shall
have the right, notwithstanding the fact that it may have exercised its right
to purchase the outstanding Series B Bonds in accordance with this Section 4.01
(b)(iii), to declare a Bond Payment Default at such time as Beal Bank so
purchases the outstanding Series B Bonds in accordance with this Section
4.01(b)(iii).


 


(c)                                  In
addition to the right of Beal Bank to purchase the outstanding Series B Bonds
as set forth in Section 4.01(b)(iii) above, Beal Bank shall also have the right
if there has been a Default under Section 4.01(a) which has not been cured
prior to the expiration of all applicable Grace Periods, if any, to (a) direct
Mortgagee to call a mandatory tender of the Series B Bonds in accordance with
Section 5(d) of the Series B Ordinance, said direction in the form of Exhibit
F attached hereto; and (b) deposit sufficient cash with Mortgagee,
simultaneously with such direction to Mortgagee, in an amount necessary to
purchase all but not less than all of the outstanding Series B Bonds at a
purchase price of par plus accrued and unpaid interest, if any, plus
(provided the Series B Bonds are tendered on or prior to November 30,
2006) two percent (2%) of the principal amount of such Series B Bonds
outstanding. Upon receipt of such direction and sufficient cash deposit,
Mortgagee hereby agrees to call for a Mandatory Tender of the Series B Bonds
pursuant to Section 5(d) of the Series B Ordinance and to deliver such tendered
Series B Bonds to Beal Bank, or its assigns.


 


16

















 


ARTICLE FIVE


REMEDIES


 


5.01                           Remedies.


 


(a)                                  Upon
the occurrence of a Default, Mortgagee may, subject to the restrictions set
forth in Section 5.02 hereinbelow and the rights of Mortgagor and Beal Bank set
forth in Section 4.01 above, at any time declare the Indebtedness to be
immediately due and payable and the Indebtedness shall thereupon become
immediately due and payable and shall be subject to the Optional Mandatory
Redemption as set forth in the Series B Ordinance without any further
presentment, demand, protest or notice of any kind being required and
Mortgagee, at its option may, in its sole discretion, also be entitled to do
any of the following:


 


(i)                                     in
person, by agent, or by a receiver, without regard to the adequacy of security,
the solvency of Mortgagor or the condition of the Premises, without obligation
to do so and without notice to or demand upon Mortgagor, enter upon and take
possession of the Premises, or any part thereof, in its own name or in the name
of an agent and do any acts which Mortgagee deems necessary to preserve the
value or marketability of the Premises; sue for or otherwise collect the Rents,
and apply the same, less costs and expenses of operation and collection,
including reasonable attorneys’ fees, against the Obligations, all in such
order as Mortgagee may determine; appear in and defend any action or proceeding
purporting to affect, in any manner whatsoever, the Obligations, the security
hereof or the rights or powers of Mortgagee; pay, purchase or compromise any
encumbrance, charge or lien that in the judgment of Mortgagee is prior or
superior hereto; and in exercising any such powers, pay necessary expenses,
employ counsel and pay reasonable attorneys’ fees;


 


(ii)                                              as
a matter of strict right and without notice to Mortgagor or anyone claiming
under Mortgagor, and without regard to the then value of the Premises, apply ex
parte to any court having jurisdiction to appoint a receiver to enter upon
and take possession of the Premises, and Mortgagor hereby waives notice of any
application therefor, provided a hearing to confirm such appointment with
notice to Mortgagee is set within the time required by law (any such receiver
shall have all the powers and duties of receivers in similar cases and all the
powers and duties of Mortgagee in case of entry as provided herein, and shall
continue as such and exercise all such powers until the date of confirmation of
sale, unless such receivership is sooner terminated); or


 


(iii)                               commence an action to
foreclose this Mortgage in the manner provided in this Mortgage or under the
Illinois Mortgage Foreclosure Law (735 ILCS Sections 5/15-1101 et seq.
[l995]  (the
“Foreclosure Act”).


 


(b)                                 In:
(i) any action to foreclosure the lien of this Mortgage or enforce any other
remedy of Mortgagee hereunder; or (ii) any other proceeding whatsoever in
connection with the Series B Bonds or the Premises in which Mortgagee is named
as a party, there shall be allowed and included, as additional indebtedness in
the judgment or decree for sale resulting therefrom, all expenses paid or
incurred in connection with such proceeding by or on behalf of Mortgagee,
including, without limitation, reasonable attorneys’ fees, appraisers’ fees,
outlays for documentary and expert evidence, stenographers’ charges,
publication costs, land and environmental survey costs and costs (which may be
estimated as to items to be expended after entry of such judgment or decree) of
procuring all abstracts of title, title certificates, title searches and
examinations, title insurance policies, and any similar data and assurances
with respect to the title to the Premises as Mortgagee may deem reasonably
necessary either to prosecute or to defend in such proceeding or to evidence to
bidders at


 


17

















 


any sale pursuant to such decree the true condition of the title to or
value of the Premises. All expenses and fees as may be incurred in the
protection of any of the Premises and the maintenance of the lien of this
Mortgage thereon in any litigation affecting the Series B Bonds or the
Premises, including probate and bankruptcy proceedings, or in preparation for
the commencement or defense of any proceeding or threatened suit or proceeding
in connection therewith, shall upon demand of Mortgagee be immediately due and
payable by Mortgagor with interest thereon at the rate set forth in the Series
B Bonds and shall become a part of the Obligations secured by this Mortgage.


 


(c)                                  Unless
otherwise provided herein, if Mortgagor shall at any time fail to perform or
comply with any of the terms, covenants and conditions required on Mortgagor’s
part to be performed and complied with under the terms of this Mortgage,
Mortgagee may, in its sole discretion:


 


(i)                                     make
any payments hereunder payable by Mortgagor or;


 


(ii)                                  after
the expiration of any applicable Grace Period and subject to Mortgagee’s rights
to contest certain obligations specifically granted in this Mortgage, perform any
such other acts thereunder on part of Mortgagor to be performed and enter upon
the Premises for such purpose.


 


(d)                                             The
proceeds of any foreclosure sale of the Premises shall be distributed and
applied in accordance with the Foreclosure Act and the Intercreditor Agreement
or as otherwise directed by order of the court in which this Mortgage is
foreclosed.


 


(e)                                              The
exercise of any right or remedy by Mortgagee hereunder shall not in any way
constitute a cure or waiver of default hereunder or under the Series B Bonds,
or invalidate any act done pursuant to any notice of default, or prejudice
Mortgagee in the exercise of any of its nights hereunder or under the Series B
Bonds.


 


Mortgagor
waives any right to require Mortgagee to: (i) proceed against any other Person,
(ii) proceed against the Premises or (iii) pursue any other remedy in its
power; and, further waives any defense arising by reason of any disability or
other defense of Mortgagor or any other Person, or by reason of the cessation
from any cause whatsoever of the liability of Mortgagor or any other Person.
Until the Obligations shall have been paid in full, Mortgagor shall not have
any right to subrogation, and Mortgagor waives any right to enforce any remedy
which Mortgagor now has or may hereafter have against Mortgagee or against any
other Person and waives any benefit of and any right to participate in any
security whatsoever now or hereafter held by Mortgagee for or with respect to
the Obligations.


 


(f)                                    Upon,
or at any time after, a Default hereunder and the filing of a complaint to
foreclose this Mortgage, the court in which such complaint is filed shall
appoint a receiver of the Premises whenever Mortgagee, when entitled to
possession, so requests pursuant to Section 15-1702(a) of the Foreclosure Act.
Such Receiver shall have all powers and duties prescribed by Section 15-1704 of
the Foreclosure Act, including the power to make leases to be binding upon all
parties, including Mortgagor after redemption, the purchaser at a sale pursuant
to a judgment of foreclosure and any Person acquiring an interest in the
mortgaged real estate after entry of a judgment of foreclosure, all as provided
in Subsection (g) of Section 15-1701 of the Foreclosure Act. In addition, such
receiver shall also have the following powers: (i) to extend or modify any then
existing leases, which extensions and modifications may provide for terms to
expire, or for options to lessees to


 


18

















 


extend or renew terms to expire, beyond the maturity date of the
Obligations and beyond the date of the issuance of a deed or deeds to a
purchaser or purchasers at a foreclosure sale, it being agreed that any such
leases, and the options or other such provisions to be contained therein, shall
be binding upon Mortgagor and all persons whose interests in the Premises are
subject to the lien hereof and upon the purchaser or purchasers at any
foreclosure sale, notwithstanding any redemption, discharge of the mortgage
indebtedness, satisfaction of any foreclosure judgment, or issuance of any
certificate of sale or deed to any purchaser; and (ii) all other powers which
may be necessary or are usual in such cases for the protection, possession,
control, management and operation of the Premises during the whole of the
period of receivership.  The court from
time to time, either before or after entry of judgment of foreclosure, may
authorize the receiver to apply the net income in its hands in payment in whole
or in part of: (i) the Obligations, or any amounts included in any judgment of
foreclosure or supplemental judgment or other item for which Mortgagee is
authorized to make an advance, as referred to in Subsection (b)(5) of Section
15-1302 of the Foreclosure Act; and (ii) the deficiency in case of a sale and
deficiency.


 


5.02                                       Restrictions
on Mortgagee Foreclosure Actions.


 


If
during the period commencing on the date of this Mortgage and terminating
December 31, 2000 (the “Foreclosure Moratorium Period”), payments
of principal and interest required to be paid under the Series B Bonds have not
been paid as and when so required Mortgagee shall not be permitted to exercise
any of its rights hereunder, including, but not limited to, its rights of
foreclosure under either: (i) §15-1501 of the Foreclosure Act as a mortgagee
under said Foreclosure Act; or (ii) §15-1403 of the Foreclosure Act to the
extent common law strict foreclosure is available thereunder, with the
exception of the rights granted herein to Mortgagee to enforce the covenants of
Mortgagor set forth in Sections 3.02, 3.03 and 3.04 hereinabove, which rights
Mortgagee shall have the right to enforce throughout the term of this Mortgage,
including during the Foreclosure Moratorium Period.


 


ARTICLE SIX


MISCELLANEOUS


 


6.01                               Notices
Consents. and Approvals.


 


Any notice, consent, or approval that Mortgagee or
Mortgagor may desire or be required to give to the other shall be in writing
and shall be mailed or delivered to the intended recipient thereof at its
address set forth below or at such other address as such intended recipient
may, from time to time, by notice in writing, designate to the sender pursuant
hereto. Any such notice, consent, or approval shall be deemed effective (a) if
given by nationally recognized overnight courier providing for next business
day for delivery, one (1) business day after delivery to such courier, or (b)
if given by United States mail (registered or certified), two (2) business days
after such communication is deposited in the mails or (c) if in person, when
written acknowledgment of receipt thereof is given. Except as otherwise
specifically required herein, notice of the exercise of any right or option
granted to Mortgagee by this Mortgage is not required to be given.


 


	
   

  	
  (a)

  	
  If to Mortgagee:

  	
  U.S. Bank Trust National Association, formerly

  
	
   

  	
   

  	
   

  	
  known as First Trust National Association

  
	
   

  	
   

  	
   

  	
  One Illinois Center

  



 


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  111 East Wacker Drive

  
	
   

  	
   

  	
   

  	
  Suite 3000

  
	
   

  	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
   

  	
  Attention: Corporate Trust Department

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  If to Mortgagor:

  	
  Huntley Development Limited Partnership

  
	
   

  	
   

  	
   

  	
  c/o The Prime Group, Inc.

  
	
   

  	
   

  	
   

  	
  77 W. Wacker Drive, Suite 4200

  
	
   

  	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
   

  	
  Attention: Michael W. Reschke

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  	
  The Prime Group, Inc.

  
	
   

  	
   

  	
   

  	
  77
  W. Wacker Drive, Suite 4200

  
	
   

  	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
   

  	
  Attention: Robert J. Rudnik

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  If to Beal Bank:

  	
  Beal Bank, SSB

  
	
   

  	
   

  	
   

  	
  15770 North Dallas Parkway

  
	
   

  	
   

  	
   

  	
  Suite 300

  
	
   

  	
   

  	
   

  	
  Dallas, Texas 75248

  
	
   

  	
   

  	
   

  	
  Attention: William T. Saurenmann

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  	
  Jenkens & Gilchrist

  
	
   

  	
   

  	
   

  	
  1445 Ross Avenue

  
	
   

  	
   

  	
   

  	
  Dallas, Texas 75202

  
	
   

  	
   

  	
   

  	
  Attention: Lawrence Adams

  



 


6.02                           Covenants
Run with Land.


 


All of the covenants of this Mortgage shall run with the title to the
Land constituting the Real Estate.


 


6.03                           Governing
Law.


 


This Mortgage shall be governed by and construed in accordance with the
laws of the State of Illinois.


 


6.04                           Severability.


 


If any provision of this
Mortgage, or any paragraph, sentence, clause, phrase, or word, or the
application thereof, in any circumstance, is held invalid, the validity of the
remainder of this Mortgage shall be construed as if such invalid part were
never included herein.


 


6.05                           Headings.


 


The headings of articles,
sections, paragraphs, and subparagraphs in this Mortgage are for


 


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convenience of
reference only and shall not be construed in any way to limit or define the
content, scope, or intent of the provisions hereof.


 


6.06                           Grammar.


 


As used in this Mortgage, the singular shall include the plural, and
masculine, feminine, and neuter pronouns shall be fully interchangeable, where
the context so requires.


 


6.07                           Deed
in Trust.


 


If title to the Premises
or any part thereof is now or hereafter becomes vested in a trustee, any
prohibition or restriction contained herein against the creation of any lien on
the Premises shall be construed as a similar prohibition or restriction against
the creation of any lien on or security interest in the beneficial interest of
such trust.


 


6.08                           Successors
and Assigns.


 


This Mortgage and all provisions hereof shall be
binding upon Mortgagor, its successors, assigns, legal representatives, and all
other persons or entities claiming under or through Mortgagor. The word
“Mortgagee” when used herein, shall include Mortgagee’s successors, assigns,
and legal representatives, including all other holders, from time to time, of
the Series B Bonds.


 


6.09                           No
Oral Change.


 


This Mortgage may only be modified, amended or changed
by an instrument in writing signed by Mortgagor and the Mortgagee, and may only
be released, discharged or satisfied of record by an agreement in writing
signed by the Mortgagee. No waiver of any term, covenant, condition, or
provision of this Mortgage shall be effective unless given in writing by
Mortgagee and if so given by Mortgagee shall only be effective in the specific
instance in which given. Furthermore, any waiver by Mortgagee of the provisions
of this Mortgage after the occurrence of an Default shall not be deemed to be a
waiver of the right of Mortgagee in the future to insist upon strict compliance
with such provisions upon the occurrence of any other or subsequent Default.


 


6.10                           Entire
Agreement.


 


This Mortgage supersedes, in all respects, all prior
written or oral agreements between Mortgagor and Mortgagee relating to this
Mortgage and there are no agreements, understandings, warranties or
representations between the parties with respect to the matters addressed in
this Mortgage except as set forth in this Mortgage.


 


6.11                           Construction.


 


Mortgagor acknowledges that Mortgagor and Mortgagor’s
counsel have reviewed this Mortgage and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
will not be employed in the construction or interpretation of this Mortgage or
any amendments or schedules to any of the foregoing.


 


21

















 


6.12                           Savings
Clause.


 


Anything elsewhere herein contained to the contrary
notwithstanding: (a) in the event that any provision in this Mortgage shall be
inconsistent with any provision of the Foreclosure Act, the provisions of the
Foreclosure Act shall take precedence over the provisions of this Mortgage, but
shall not invalidate or render unenforceable any other provision of this Mortgage
that can be construed in a manner consistent with the Foreclosure Act; and (b)
if any provision of this Mortgage shall grant to Mortgagee any rights or
remedies upon default of Mortgagor which are more limited than the rights that
would otherwise be vested in Mortgagee under the Foreclosure Act in the absence
of said provision, Mortgagee shall be vested with the rights granted in the
Foreclosure Act to the full extent permitted by law; and (c) without limiting
the generality of the foregoing, all expenses incurred by Mortgagee to the
extent reimbursable under Sections 15-1510 and 15-1512  of the Foreclosure Act,
whether incurred before or after any  decree or judgment of foreclosure, shall
be added to the Obligations or by the judgment of foreclosure.


 


6.13                           Maximum
Amount Secured.


 


The maximum amount of the Obligations secured by this
Mortgage is $28,000,000.


 


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6.14                           Approval
of  Bondholders.


 


Any and all actions to be taken by the Mortgagee shall
be those actions as are approved and directed by a majority of the Bondholders
(as defined in the Series B Ordinance).


 


6.15                           Nonrecourse
to Mortgagor.  Except as hereinafter
provided, Mortgagee shall neither seek nor take any deficiency or monetary
judgment against Mortgagor, any director, partner, joint venturer, shareholder,
officer, employee, agent or representative of Mortgagor (each a “Non-Recourse
Party” and collectively sometimes the “Non-Recourse Parties”) or any
of the property of any of the Non-Recourse Parties other than the Premises, and
it is expressly understood and agreed that nothing contained herein shall be
construed as creating any liability on Mortgagor or the Non-Recourse Parties
personally to pay the Obligations, all such personal liability, if any, being
expressly waived by Mortgagee and by every Person now or hereafter claiming any
right or security hereunder, and that so far as Mortgagor and the Non-Recourse
Parties are personally concerned, Mortgagee shall look solely to the Premises
hereby mortgaged. It is agreed, acknowledged and understood, however, that
nothing contained in this Section 6.15 shall in any manner or way release,
affect or impair the right of Mortgagee to receive or recover from Mortgagor
(but not any other Non-Recourse Party) any sums expended by Mortgagee: (i) to
pay for any and all of Mortgagee’s costs, expenses, damages, or liabilities,
including without limitation, all reasonable attorneys’ fees, directly or
indirectly arising out of or attributable to the use, generation, storage,
release, threatened release, discharge, disposal, or presence on, under or
about the Premises of any hazardous waste or hazardous substances in violation
of the covenants of Mortgagor set forth in Section 3.11 hereinabove; (ii) to
recover any deficiency or monetary judgment for any loss, liability, or damage
arising out of or based upon any fraud or willful misrepresentation of a
material fact by Mortgagor under any provision of this Mortgage; or (iii) to
pay for any loss resulting from any misapplication by Mortgagor of condemnation
proceeds.


 


6.16                           Intercreditor
Agreement: Subordination of  Beal Bank Mortgage. As more fully set
forth in the intercreditor Agreement: (a) Beal Bank is the lender under that
certain Mortgage Note dated December 18, 1995  and the Bank Mortgage Note
dated as of October 27, 1999, both by and between Beal Bank and the
Mortgagor, pursuant to which, among other things, Beal Bank has made certain
loans to the Mortgagor; and (b) to secure the payment and performance of the Bank
Claim (as defined in the Intercreditor Agreement), the Mortgagor executed and
delivered to Beal Bank, inter alia: (i) that certain Mortgage, Assignment of
Rents and Security Agreement (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Bank Mortgage”) dated as of
December 18, 1995 and recorded with the Recorder of Deeds of Kane County,
Illinois on December 22, 1995 in the Kane County, Illinois Recorder’s
Office (the “Recorder’s Office”) as Document No 95K78402, pursuant to
which the Mortgagor granted to Beal Bank a first priority mortgage lien on the
Real Estate, and that certain Mortgage, Security Agreement and Assignment of
Leases and Rents, dated as of October 27, 1999, and recorded with the
Recorder of Deeds of Kane County, Illinois on October 29, 1999, in the
Recorder’sOffice as Document 99K 103679 (the “New Bank Mortgage”), which new
Bank Mortgage will be amended to create a subordinate lien on the Premises; and
(ii) that certain Memorandum of Net Profits Interest, dated as of
December 18, 1995 and recorded with the Recorder’s Office
December 22, 1995 as Document No. 95K078403  (the “Net Profits
Memorandum”).  By execution of the
lntercreditor Agreement and the Joinder to this Mortgage, Beal Bank hereby
subordinates the Bank Mortgage and the lien created thereunder to the lien
created by, as well as all of the terms, covenants and conditions in, this
Mortgage and Beal Bank’s interests as set forth in the Net Profits Agreement
(as defined and referenced in the Net


 


23

















 


Profits Memorandum), and to any and all amendments,
modifications, extensions, replacements or renewals thereof including the New
Bank Mortgage (provided, however that Beal Bank’s execution thereof does not
constitute a consent under either the Bank Mortgage or Net Profits Agreement by
Beal Bank to any future actions), subject to the limitations contained in the
Intercreditor Agreement and to any and all advances heretofore made or
hereafter to be made under the Series B Ordinance Documents, provided,  however,
notwithstanding Section 6.13 hereof the amount of the liability under the
Series B Bonds pursuant to which the lien of the Bank Mortgage is subordinate
shall not exceed the aggregate of (A) the principal amount of the Series B
Bonds on the date hereof ($14,000,000), as reduced by any redemption after the
date hereof, (B) any and all accrued and unpaid interest on the Series B Bonds
from and after the date hereof, and (C) expenses of the Trustee incurred in
connection with enforcing the terms of this Mortgage and the Intercreditor
Agreement. The terms and provisions of the lntercreditor Agreement are
incorporated herein as if set forth verbatim and shall govern and control the
terms and provisions pursuant to which the lien of the Bank Mortgage is subject
and subordinate to the lien of this Mortgage.


 


6.17                           Quarterly
Construction Update.  Mortgagee
shall provide to any Series B Bondholder of not less than 10% of the principal
amount of the Series B Bonds then outstanding within thirty (30) days after the
end of each calendar quarter throughout the term of this Mortgage a copy of the
Quarterly Construction Update delivered by Mortgagor pursuant to Section
3.02(i).


 


6.18                           Approval
of Plats.  Provided no Default
exists or would result therefrom, Mortgagee agrees that within seven (7) days
after Mortgagor’s request from time to time, Mortgagee shall execute and return
to Mortgagor (i) any plat of subdivision, plat of resubdivision, plat of
consolidation or plat of vacation (individually and collectively, a “Plat”)
affecting all or any portion of the Premises, that has been approved by the
Village in connection with the potential sale or development of all or any
portion of the Premises, and (ii) any declaration or grant of covenants,
conditions, restrictions and/or easements affecting all or any portion of the
Premises necessary or desirable in connection with any potential sale or
development of all or any portion of the Premises.


 


6.19                           Supercede.  The terms of this Mortgage expressly
supercedes the terms of the Original Mortgage, but it is the intent of the
parties hereto that this Mortgage relate back to the recording of the Original
Mortgage.


 


IN WITNESS
WHEREOF, Mortgagor has caused this Mortgage to be executed as of the date
hereinabove first written.


 


	
   

  	
  Mortgagor:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HUNTLEY
  DEVELOPMENT LIMITED

  
	
   

  	
  PARTNERSHIP, an
  Illinois limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Huntley Development Company, an Illinois

  corporation

  
	
   

  	
  Its:

  	
  Managing General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Gary Skoien

  
	
   

  	
   

  	
  Title: Vice President

  
					



 


24

















 


Joined as a party,
not individually but solely at trustee under the Series B Ordinance, and
Mortgagee to this Mortgage, for purposes of Section 4.01(b)(iii) and (c).


 


	
   

  	
  U.S. BANK TRUST
  NATIONAL ASSOCIATION,

  a national banking association, formerly known as

  FIRST TRUST NATIONAL ASSOCIATION, not

  individually but solely as Trustee and Mortgagee 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


Joined as a party for purposes of Section
6.16.


 


	
   

  	
  BEAL BANK, SSB,
  a Texas savings bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Senior Vice President

  
					



 


25