"CERTIFIED TO BE A TRUE COPY"
Record and Return To:
Xxxxx X. Xxxxxxxx, Esq.
Brach, Eichler, Xxxxxxxxx, Silver,
Xxxxxxxxx, Hammer & Gladstone
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE dated the 8th day of June, 2000, among INTEGRATED
ANALYTICAL REALTY, L.L.C., a New Jersey Limited liability company having a
business address at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
(hereinafter collectively known as "Mortgagor" or "Borrower");
and
NORCROWN BANK, a state chartered bank, having an office at 00 Xxxx
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter known as
"Mortgagee" or "Lender").
WHEREAS, Mortgagor is justly indebted to Mortgagee in the principal sum
of ONE MILLION TWO HUNDRED THOUSAND AND 00/100 ($1,200,000.00) DOLLARS and
interest thereon, as evidenced by a certain obligation, bearing even date
hereof, payable to the Mortgagee at its office aforesaid, or at such other place
as the holder hereof may designate, in writing, said principal sum and interest
being payable as set forth therein, being due and payable in accordance with the
terms and conditions of such Note and said Note is hereby incorporated herein to
the same extent as if such terms, covenants and conditions were incorporated
herein at length.
NOW, WITNESSETH, that the Mortgagor for the better securing the
observance, payment, and performance by the Mortgagor of all of his obligations
and liabilities to the Mortgagee, and any and all loans and/or advances at any
time or from time to time made by the Mortgagee to the Mortgagor, any present or
future indebtedness or other obligations of the Mortgagor to the Mortgagee, and
all other indebtedness or other obligations, direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, howsoever
created, incurred, evidenced, acquired or arising, whether joint, several, or
joint and several, or independent of the Mortgagor, or whether under the above
described note or other obligation, or under any other instrument, obligations,
contracts or agreements, or dealings of any and every kind now or hereafter
existing or entered into between the Mortgagor and the Mortgagee or otherwise,
(together with interest and charges as provided in said note or other
obligation, and in any other agreements had by and between the parties herein)
and further to secure the prompt and faithful performance and observance by the
Mortgagor of all the terms, undertakings, covenants and conditions by the
Mortgagor to be kept, observed, or performed under or according to the
provisions of this Mortgage and of any and all other instruments, obligations,
contracts or agreements entered or to be entered in the future between the
Mortgagor and Mortgagee, and in further consideration of the sum of ONE and
NO/100TH ($1.00) DOLLARS and for other good and valuable consideration, the
receipt whereof before the ensealing and delivery of these presents is hereby
acknowledged, the Mortgagor does grant, bargain, sell, and convey to the
Mortgagee and to its successors and assigns forever:
All that certain tract or parcel of land and premises hereinafter
particularly described on Schedule A attached hereto and made a part hereof,
situate, lying, and being in the Township of Xxxxxxxx, County of Xxxxxx, and
State of New Jersey (the "Land").
Being the same premises conveyed to Mortgagor by Deed from East Xxxxxx
Realty Associates, L.L.C., a New Jersey limited liability company, dated the
date hereof and being recorded simultaneously herewith in the Xxxxxx County
Clerks Office.
TOGETHER with all right, title and interest of the Mortgagor, now owned
or hereafter acquired, in and to any and all sidewalks and alleys, and all
strips and gores of land, adjacent to or used in connection with said Land.
TOGETHER with any and all awards, damages, payments and other
compensation and any and all claims therefor and rights thereto which may result
from taking or injury by virtue of the exercise of the power of eminent domain
of or to, or any damage, injury or destruction in any manner caused to, the
Premises (as hereinafter defined), or any part thereof, or from any change of
grade or vacation of any street abutting thereon, all of which awards, damages,
payments, compensation, claims and rights are hereby assigned, transferred and
set over to Mortgagee to the fullest extent that Mortgagor may under the law do
so. Mortgagee is hereby irrevocably appointed attorney-in-fact coupled with an
interest for Mortgagor to settle for, collect and receive any such awards,
damages, payments and compensation from the authorities making the same, to
appear in and prosecute any proceeding therefor, and to give receipts and
acquittances therefor.
TOGETHER with any and all fixtures, and all machinery, equipment,
chattels, goods and other articles of property, whether real estate or not, now
or at any time hereafter attached to or situated in or upon, and used or useful
in the operation of, the Land or the buildings, structures and improvements
erected or hereafter erected thereon, or of any business now or hereafter
operated by the owner or any occupant of the Land and/or the buildings,
structures and improvements thereon, or any part of either or both, or any part
thereof, (except any personal property, furnishings or furniture owned by any
tenant unrelated to Mortgagor occupying the Land and/or the buildings,
structures and improvements thereon, or any part of either or both and used by
such tenant in the space occupied by it, to the extent that the same does not
become the property of the Mortgagor, as landlord, under the lease with such
tenant or under applicable law), including without limitation:
All gas and electric fixtures, radiators, heaters, engines and
machinery, boilers, elevators and motors, bathtubs, sinks, water closets,
basins, pipes, faucets, air-conditioning equipment, plumbing fixtures, heating
fixtures, mirrors, mantels, refrigerating plant, carpeting, furniture, ranges,
refrigerators, ovens, dishwashers, laundry equipment, cooking apparatus and
appurtenances, and all building material and equipment now or hereafter
delivered to the Land and/or the buildings, structures and improvements thereon,
or any part of either or both and intended to be installed therein; and all
renewals or replacements thereof, all additions thereto or articles in
substitution thereof and all of the estate, right, title and interest of the
Mortgagor in and to all property of any nature whatsoever, now or hereafter
situate on or in the Land and/or buildings, structures and improvements thereon,
or any part of either or both or intended to be used in connection with the
operation thereof shall be deemed to be fixtures and an accession to the
freehold and a part of the realty as between the parties hereto and all persons
claiming by, through or under them and shall be deemed to be a portion of the
security for the indebtedness herein mentioned and secured by this Mortgage.
TOGETHER with all right, title and interest of Mortgagor in and to all
unearned premiums accrued, accruing or to accrue under any and all insurance
policies now or hereafter obtained by Mortgagor with respect to the Premises (as
hereinafter defined).
TOGETHER, with all rights, dividends and/or claims of any kind, nature
or description whatsoever (including, without limitation, damage, secured,
unsecured, lien, priority, or administration claims); together with the right to
take any action or file any papers or process in any Court of competent
jurisdiction, which may in the opinion of Mortgagee be necessary to preserve,
protect, or enforce such rights or claims, including without limitation the
filing of any proof of claim in any insolvency proceeding under any State,
Federal or other laws; including any rights, claims or awards accruing to, or to
be paid to, Mortgagor in its capacity as landlord under any lease affecting all
or any portion of the Land and/or the buildings, structures and improvements
thereon. Mortgagee's lien and interest in the foregoing rights and claims is
hereby deemed to be presently vested and perfected as of the date hereof.
TOGETHER with all and singular the tenements, hereditaments and
appurtenances belonging to the Land or any part thereof, or the buildings,
structures and improvements thereon, hereby mortgaged or intended so to be, or
in anywise appertaining thereto (including but not limited to all leases,
income, rents, issues and profits arising therefrom), all streets, alleys,
passages, ways, watercourses, easements, all other rights, liberties and
privileges of whatsoever kind or character, the reversions and remainders, and
all the estate, right, title, interest property, possession, claim and demand
whatsoever, as well at law or in equity, of Mortgagor, in and to all the
foregoing or any or every part thereof (said Land, buildings, structures,
improvements, fixtures, machinery, equipment, tenements, and other property
interests described and enumerated above are hereinafter collectively referred
to as the "Premises" or the "Mortgaged Premises").
TO HAVE AND TO HOLD, the above granted and described Mortgaged
Premises, with the appurtenances, fixtures, equipment and improvements, unto the
Mortgagee, its successors and assigns, to its and their own proper use and
benefit forever;
PROVIDED ALWAYS, and these premises are upon the express condition,
that if the Mortgagor shall well and truly pay to the Mortgagee all money
secured hereby when the same shall become due and payable, without deduction or
credit for any amount payable for taxes, then these presents and the estate
hereby granted shall cease, terminate and be void.
Mortgagor warrants, covenants and agrees with Mortgagee as follows:
1. DEFINITIONS:
Unless the context otherwise connotes, as used herein:
(a) "Note" means:
(1) That certain Mortgage Note, bearing even date herewith, made by
Mortgagor as Borrower and payable to the order of Mortgagee as Lender,
evidencing indebtedness in the principal amount of ONE MILLION TWO HUNDRED
THOUSAND AND 00/100 ($1,200,000.00) DOLLARS advanced by Mortgagee to Mortgagor,
with interest thereon at the rate of Eight and Three-Quarters (8.75%) percent
per annum as specified in the Note, the terms and conditions of which, and any
amendments, extensions, or restatements thereof, are incorporated by reference
in and to the terms and conditions of the within Mortgage as if fully set forth
herein. All amounts due under the Note are due and payable on or before July 1,
2005 (hereinafter the "Maturity Date"), subject to and in accordance with the
Note, which provides in part as follows:
The Loan Term may be extended and the Interest Rate shall be adjusted
as set forth below, provided the following conditions are satisfied:
(i) Borrower notifies Lender of Borrower's election to extend not
less than sixty (60) days prior to the Maturity Date;
(ii) No default has occurred under the Note or Mortgage;
(iii) The mortgage remains a valid first lien;
(iv) There has been no material adverse change in the financial
condition of the Borrower;
(v) A current appraisal of the Premises, conducted at Borrower's
expense, by an appraiser satisfactory to Lender, and
submitted to Lender not less than sixty (60) days prior to
the Maturity Date showing a loan-to-value ratio of not greater
than seventy-five percent (75%); and
(vi) The Debt Service Coverage Ratio (as defined below) is not less
than 1.2. The term "Debt Service Coverage Ratio" shall mean
a fraction, the denominator of which will be the debt service for
the loan (based upon the new Interest Rate for the upcoming rate
period), and the numerator of which shall be the then current Net
Operating Income for the Premises. "Net Operating Income" shall
mean total gross revenues from the Premises, minus operating
expenses, and the replacement reserve, if required, and in an
amount determined by Lender in its discretion. The Debt Service
Coverage Ratio shall be based upon the then current income and
expense statements submitted by Borrower in form and substance
satisfactory to Lender.
Provided the foregoing conditions are satisfied, then the Loan Term may be
extended for an additional sixty (60) month period from the Maturity Date
("Extended Loan term") to July 1, 2005 (the "Extended Maturity Date"). The
Interest Rate on the unpaid principal during the Extended Loan Term shall be
reset to two hundred fifty (250) base points (2.50%) above the Current Index
Rate (the "Adjusted Interest Rate"), provided, however, the Adjusted Interest
Rate shall never be less than eight and three-quarters (8.75%) percent per
annum. The Current Index Rate shall be the weekly average yield on United States
Treasury securities as adjusted to a constant maturity of five (5) years, as
made available by the Federal Reserve Board and published in the Wall Street
Journal sixty (60) days prior to the Maturity Date.
In the event that the Loan Term is extended to the Extended Loan
Term, the Adjusted Interest Rate shall become effective on July 1,
2005 (the "Change Date"), and shall apply for the remainder of the
Extended Loan Term.
The Borrower shall make consecutive monthly payments of interest and
principal on all monies advanced under this Note, based on a twenty (20) year
amortization schedule, in the amount of $10,604.53 (exclusive of escrows and any
other required payments) commencing on August 1, 2000, and continuing on the
first day of each and every month thereafter until the Maturity Date. The
foregoing payments shall be applied first to escrow expenses and other amounts
due under the Mortgage, then to interest and then to reduction of principal, and
shall be subject to adjustment in accordance with the above, in which case
Lender shall recalculate the monthly payment of principal and interest at the
Adjusted Interest Rate applied to the then outstanding principal balance
amortized over a fifteen (15) year period. If the Loan term is extended to the
Extended Maturity Date pursuant to the above, Lender will advise Mortgagor of
the new monthly payment amount, and commencing August 1, 2005 (the "Payment
Change Date"), the Borrower shall make consecutive monthly payments at the new
payment amount and continuing thereafter until the Extended Maturity Date, at
which time all outstanding amounts of principal, interest and any other charges
on the Loan shall be due and payable in full. Interest from the date of closing
to the end of the month of closing shall be due and payable at the Loan closing.
Interest shall be calculated on the basis of a 360 day year over the actual
number of days elapsed. All payments shall be made to Lender at the address
shown above, or to such other address as may be required by Lender.
(2) All amounts from time to time advanced, paid or expended by the
Mortgagee under Section 18 of this Mortgage, with interest thereon at the rate
stated in the Mortgage Note to Mortgagee of even date herewith;
(3) All other amounts which Mortgagor and Mortgagee may agree are to be
secured hereby, with interest thereon at the rate or rates agreed upon; and
(4) Any part of the principal of, and to any part of the interest on,
any part of this Note, as well as to all of th note.
(b) "Loan Documents" means: This Mortgage, the Note, the
Governmental Compliance Warranty and Indemnification Agreement, UCC-1
Financing Statements, Assignment of Leases, Mortgagor's Affidavit Of Title,
Borrower's Certificate, Mortgage Commitment, Guaranty, and any other
Resolutions, Certifications, Documents or other instruments executed or
delivered by Mortgagor to Mortgagee in connection with or collateral to the loan
transaction evidenced by the Note.
(c) "Mortgage Commitment" means: That certain agreement by and between
Mortgagor and Mortgagee dated April 18, 2000, as amended to date.
(d) "Indemnity Agreement" means: That certain Governmental Compliance
Warranty and Indemnification Agreement dated the date hereof, executed and
delivered by Mortgagor and its principal(s) (collectively, the "Indemnitor") as
an inducement for Mortgagee to advance monies to Mortgagor under the Note
wherein the Indemnitor thereunder indemnifies the Mortgagee regarding certain
environmental matters with respect to the Premises.
(e) "Assignment of Leases" means: That certain Absolute Assignment of
Leases and Rents dated the date hereof executed and delivered by Mortgagor to
Mortgagee assigning Mortgagor's rights under the leases affecting the Premises
to Mortgagee as security for the Note.
(f) "UCC-1 Financing Statements" means: Those certain financing
statements dated the date hereof executed and delivered by Mortgagor evidencing
Mortgagee's security interest in the collateral therein specified.
(g) "Title Binder" means: That certain title insurance commitment and
report issued by Commonwealth All Service Title Agency as agent for Commonwealth
Land Title Insurance Company.
(h) "Guaranty" means: That certain agreement dated the date hereof,
executed and delivered by Menlo Acquisition Corporation, Integrated Analytical
Laboratories, Inc. and Integrated Analytical Laboratories, L.L.C. (the
"Guarantor" to be construed as "Guarantors" if the context so requires) as an
inducement for Mortgagee to advance monies to Mortgagor under the Note wherein
the Guarantor unconditionally guaranties the payment and performance obligations
of Mortgagor under the Note and the Mortgage, subject to the limitations set
forth in the Guaranty.
2. PAYMENT OF DEBT:
Mortgagor shall pay the Note in accordance with its terms.
3. FIRST LIEN:
This Mortgage is a valid first mortgage and is a valid first lien
against the Premises.
4. TITLE WARRANTY:
Mortgagor warrants that title to the Premises is marketable and
unencumbered and Mortgagor agrees that Mortgagor will warrant and defend the
title to the Premises and that the lien and priority of this Mortgage against
the lawful claims and demands of all persons whomsoever.
5. REPAIR:
Mortgagor shall maintain the Premises in a good and substantial state
of repair.
6. COMPLIANCE WITH LAW:
Mortgagor shall comply with and maintain the premises in compliance
with all laws and requirements of all governments and governmental authorities
applicable thereto, including without limitation all applicable environmental
laws, ordinances, rules, regulations, orders and requirements, whether federal,
state, county, regional or municipal, which are applicable to the Mortgaged
Premises, including but not limited to laws relating to air, water and noise
pollution, handling of toxic substances,
underground tank storage and occupational safety and health requirements
("Laws").
7. TAXES:
(a) Mortgagor covenants to pay promptly as the same become due and
payable all taxes, assessments, water and sewer charges and governmental charges
on or with respect to the Premises; and no owner of the Premises shall be
entitled to any credit by reason of the payment of any tax, assessment or other
imposition thereon. Mortgagor shall provide Mortgagee with such evidence as it
may require, within ten (10) days after the final date any taxes, assessments,
water and sewer charges or other governmental charges can be paid without
penalty, that all such taxes, assessments, water and sewer charges and
other governmental charges have been paid in full; and
(b) Mortgagor shall, at the sole option of Mortgagee, in lieu of paying
such taxes and assessments directly as and when the same become due and payable,
deposit with the Mortgagee on each payment date in the Note provided, until the
principal sum secured hereby is fully paid, a sum equal to one-twelfth of the
annual real estate taxes and assessments (estimated by the Mortgagee) levied or
to be levied, assessed or imposed on said Premises, and if the total of such
payments for taxes and assessments shall exceed the amounts actually paid by the
Mortgagee therefore, such excess shall be credited to subsequent payments by the
Mortgagor for the same purpose or to principal or interest that may be in
arrears, but if the total of such payments shall be insufficient to pay such
taxes and assessments in full when due, the Mortgagor shall pay to the
Mortgagee, on demand, the amount necessary to make up the deficiency; and upon
any default in the performance of this covenant, or any part thereof, the entire
principal sum hereby secured with all interest thereon may be and shall become
due and payable at the election of the Mortgagee. Such sums so deposited shall
not bear interest and may be commingled with the general funds of the Mortgagee.
If, Mortgagee, pursuant to any provision hereof, declares the indebtedness
secured hereby to be due and payable, Mortgagee may then apply all sums in said
account to the reduction of the indebtedness secured hereby.
8. INSURANCE:
(a) Mortgagor shall keep in effect upon the Premises:
(1) Comprehensive hazard insurance, Causes of Loss
Special Form, for not less than the amount of the
Loan, with the following endorsements, (i) valuation
replacement cost, (ii) laws and ordinance coverage,
(iii) boiler and machinery, if applicable, and (iv)
agreed value.
(2) Commercial general liability insurance, with a
combined single limit in an amount not less than
$1,000,000 per occurrence, $1,000,000 aggregate. (If
such policy covers more than one location, the policy
must be endorsed to reflect the aggregate per
location and the unimpaired aggregate).
(3) Business Income including Rental value in an amount
not less than twelve months gross rent, with
endorsements for (i) valuation actual loss sustained,
(ii) extended period of indemnity for sixty (60)
days, (iii) ordinance and law coverage.
(4) Workmen's compensation coverage, if applicable.
(b) All insurance shall be in such amounts, form and by such companies
as approved by the Lender (which insurance company shall have a Best's Rating of
A+ or better, and Financial Size Category of Class VI or higher), with
endorsements naming the Lender as certificate holder, first mortgagee, loss
payee and additional insured. All insurance shall be prepaid for one year from
Closing. If any part of the Premises is in a Zone A or B Flood Hazard area, and
such condition is approved by Lender, Flood Insurance as required by Regulation
H of the Federal Reserve Board shall be required. Deductibles shall not exceed
$5,000.
(c) Mortgagor shall pay the premiums on such policies as they become
payable, and shall deliver to Mortgagee such policies, with standard mortgagee
clauses in favor of Mortgagee. Financing premiums is not permitted;
(d) Mortgagor shall, at the sole option of Mortgagee, in lieu of paying
such insurance directly as and when the same become due and payable, deposit
with the Mortgagee on each payment date in the Note provided, until the
principal sum secured hereby is fully paid, a sum equal to one-twelfth of the
annual insurance premiums (estimated by the Mortgagee) on said Premises, and if
the total of such payments shall exceed the amounts actually paid by the
Mortgagee therefore, such excess shall be credited to subsequent payments by the
Mortgagor for the same purpose or to principal or interest that may be in
arrears, but if the total of such payments shall be insufficient to pay such
insurance premiums in full when due, the Mortgagor shall pay to the Mortgagee,
on demand, the amount necessary to make up the deficiency; and upon any default
in the performance of this covenant, or any part thereof, the entire principal
sum hereby secured with all interest thereon may be and shall become due and
payable at the election of the Mortgagee. Such sums so deposited shall not bear
interest and may be commingled with the general funds of the Mortgagee. If,
Mortgagee, pursuant to any provision hereof, declares the indebtedness secured
hereby to be due an payable, Mortgagee may then apply all sums in said account
to the reduction of the indebtedness secured hereby.
(e) All renewal policies shall be delivered, by Mortgagor, premiums
paid, to Mortgagee at least twenty (20) days before the expiration of the
expiring policies. Each insurance company issuing any of the aforesaid policies
shall agree in the policy, or shall otherwise agree in writing, to provide
Mortgagee with thirty (30) days prior written notice before any policy may be
canceled, changed, altered, amended, or modified, or any coverage therein be
reduced, deleted, amended, changed or canceled by either the party named as the
insured, or the insurance company issuing the policy. If the insurance, or any
part thereof shall expire, or be withdrawn or become void or voidable by
Mortgagor's breach of any condition thereof, or become void or unsafe by reason
of failure or impairment of the capital of any company in which the insurance
may then be carried, or if for any reason whatsoever the insurance shall be
unsatisfactory to Mortgagee, Mortgagor shall immediately place new insurance on
the Premises, satisfactory to the Mortgagee. In the event Mortgagor fails to
comply with this Section 8, or upon any other Event of Default, Mortgagee may
procure, at Mortgagor's sole cost and expense, whether by a transfer of interest
under the current policy of insurance or by purchase of a new policy of
insurance, a single interest policy of insurance naming Mortgagee as sole loss
payee for the Premises. If Mortgagee shall acquire title to the Premises by
virtue of a deed in lieu of foreclosure, or a judicial sale thereof pursuant to
the proceedings under the Note or Mortgage, then all of the Mortgagor's estate,
right, title and interest in and to all such policies, including unearned
premiums thereon and the proceeds thereof, shall vest in Mortgagee;
(f) Mortgagee shall be entitled to receive all insurance proceeds
according to the terms of a standard mortgagee clause, not subject to
contribution, pursuant to Section 8(i), below. Mortgagee shall have the right,
at its election, to adjust or compromise any loss claims under such insurance
and to collect and receive the proceeds thereof, and to negotiate on its behalf
and on behalf of Mortgagor, any insurance checks whether made out to Mortgagor
and Mortgagee, jointly or otherwise.
(g) Mortgagee is hereby irrevocably appointed by Mortgagor, as
attorney-in-fact of Mortgagor, to assign any policy to itself or its nominee in
the event of foreclosure of this Mortgage or other extinguishment of the
Mortgage indebtedness.
(h) The Mortgagor shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
under this Mortgage unless the Mortgagee is included thereon as a named insured
with loss payable to the Mortgagee under a standard mortgage endorsement of the
character above described. The Mortgagor shall immediately notify the Mortgagee
whenever any such separate insurance is taken out and shall promptly deliver to
the Mortgagee the policy or policies of such insurance.
(i) No damage or destruction of the Premises or any application of
insurance proceeds to the payment of the Note secured by this Mortgage shall
postpone or reduce the amount of any of the current installments of interest
becoming due under the Note which shall continue to be made in accordance with
the terms of the Note until the Note and all interest due thereunder is paid in
full.
(j) In the event of partial or total destruction of the Premises by
fire or other insured casualty, provided (i) there is no outstanding Event of
Default, (ii) that insurance proceeds are sufficient to pay projected costs of
repair and restoration, (iii) that all repairs and reconstruction can be
completed prior to the last full year of the Loan Term, and (iv) that repairs
and restoration are not otherwise, in Mortgagee's reasonable judgment,
impractical or economically unfeasible, then the insurance proceeds shall be
held in a trust fund by the Mortgagee to be disbursed for repairs and
reconstruction of the Premises. In the event that any of the foregoing
conditions are not met, then Mortgagee may apply the insurance proceeds toward
reduction of the outstanding balance due under the Note. In no event shall the
mortgage lien be reduced, except to the extent and by the amount of the proceeds
of such insurance retained by Mortgagee and applied upon said indebtedness.
9. EMINENT DOMAIN; CONDEMNATION:
(a) As to any taking of the Premises by the exercise of power of
eminent domain or purchase under threat thereof:
(1) Mortgagor shall notify Mortgagee promptly of all action taken
and, to Mortgagor's knowledge, proposed to be taken with respect thereto;
(2) Mortgagor shall not exercise or waive any right with respect
thereto, unless Mortgagee consents; and
(3) Mortgagee shall be entitled to receive the award of proceeds,
and, at its sole option, to apply the same on account of the Note (remitting the
balance, if any, to the Mortgagor) and/or to reimburse Mortgagor for the cost of
the repair of the Premises pursuant to this Section.
(b) To further secure said indebtedness, Mortgagor hereby assigns to
Mortgagee any award of damages made in connection with any condemnation or
taking with respect to the Premises or any part thereof. Mortgagee is authorized
and empowered (but not required) to collect and receive any such award and is
authorized to apply it in whole or in part in reduction of the then outstanding
debt secured by this Mortgage, notwithstanding the fact that the same may not
then be due and payable. Any amounts so applied to principal shall be applied to
the principal last maturing hereon. Mortgagor agrees to execute such further
assignments of any such awards as Mortgagee may require.
(c) In the event of the condemnation of the Premises or a portion
thereof, then the condemnation award may, at Mortgagor's sole discretion, be
held in a trust fund by the Mortgagee in the same manner as casualty insurance
proceeds, and may be disbursed solely for repairs and reconstruction except that
if, subsequent to any condemnation, any repair and/or reconstruction is, in
Mortgagee's reasonable opinion, impossible or impractical, then Mortgagee may
apply the condemnation proceeds toward reduction of the outstanding balance due
under the Note.
10. LEASES:
(a) The Mortgagor shall comply with and observe its obligation as
landlord under all leases affecting the Premises or any part or parts thereof.
Except as may be specified below, no existing or future lease which affects the
Premises, or any part or parts thereof, or any facilities or business located or
operated thereon or therefrom, shall be canceled, surrendered, or modified
without the prior written consent of Mortgagee. Mortgagor shall notify the
Mortgagee immediately or any default of Mortgagor asserted by any tenant under
such a lease. If Mortgagor fails to cure such default on its part, as landlord
under any such lease, then Mortgagor expressly authorizes Mortgagee, at its
option, to cure such default in order to prevent termination of any such lease
by any such tenant, and the leases shall set forth the foregoing provisions. If,
by reason of default of Mortgagor in the performance of any such lease, the
tenant has the right to cancel such lease or to claim any diminution of or
offset against future rents, then, at the option of Mortgagee, such default
shall be a default under the Note and this Mortgage. The Mortgagor upon request,
from time to time, but not more often than annually unless a default shall have
occurred under this Mortgage, will furnish to the Mortgagee in such reasonable
detail as the Mortgagee may request, certified by the Mortgagor, copies of all
leases relating to the Premises, and on demand, the Mortgagor will furnish to
the Mortgagee executed counterparts of any and all such leases. Further, the
Mortgagor, upon request, will furnish to the Mortgagee information relative to
the occupancy and vacancy rates of the Premises.
(b) The standard from of space lease used by Mortgagor in leasing space
in the Premises shall be subject to Mortgagee's prior approval. Mortgagor shall
use only such approved form of lease in leasing space in the Premises and any
material deviations from and or amendments to such form lease shall be subject
to Mortgagee's approval. Furthermore, all extensions and other modifications of
future or existing leases shall comply with the foregoing provisions of this
paragraph unless the prior consent of Mortgagee is given to each such extension
or modification. Any and all leases shall, by their terms, be subject to and
subordinate to this Mortgage and shall be assigned, in form for recording, to
Mortgagee, pursuant to the Assignment of Leases.
(c) Notwithstanding anything in this Article 10 to the contrary,
Mortgagor agrees that it will not, without the written consent of the Mortgagee,
assign the rents, issues or profits, or any part thereof, from the Premises,
receive or collect rents from any tenant, sub-tenant, undertenant, or other
occupant of any part of the Premises for a period of more than one (1) month in
advance, nor will Mortgagor grant any concessions to any of the foregoing
persons or parties for more than one (1) month's rent (which must be at the
front end of a lease) nor shall any lease be modified, entered, terminated or
extended in any other way that would reduce monthly rent thereunder except in
the ordinary course of business and in no event shall the sum total of all such
concessions and other modifications reduce the gross rents for the Premises to
less than the most recent fiscal period, without the prior written consent of
the Mortgagee.
(d) Mortgagor authorizes Mortgagee at its option to foreclose this
Mortgage subject to the rights of any tenants of the Premises, and the failure
to make any such tenants parties defendant to any such foreclosure proceeding
and to foreclose their rights will not be asserted by Mortgagor as a defense to
any proceeding instituted by Mortgagee to collect the indebtedness secured
hereby or any deficiency remaining unpaid after the foreclosure sale of the
Premises, it being expressly understood and agreed, however, that nothing herein
contained shall prevent Mortgagor from asserting in any proceeding disputing the
amount of the deficiency or the sufficiency of any bid at such foreclosure sale,
that any such tenancies adversely affect the value of the Premises.
(e) Any agreement entered into by the Mortgagor, its representatives,
agents, successors or assigns, which provides for the payment of leasing
commissions, (i) shall provide that the obligation to pay such leasing
commissions will not be enforceable against any party other than the party who
entered into such agreement, (ii) shall be subordinate to this Mortgage, and
(iii) shall not be enforceable against Mortgagee or its successors by
foreclosure, deed in lieu of foreclosure or by assignment of this Mortgage. The
Mortgagors shall, upon the request of the Mortgagee, furnish satisfactory
evidence to the Mortgagee of the Mortgagor's compliance with the provisions of
this Section.
(f) At the sole option of Mortgagee, this Mortgage shall become subject
and subordinate, in whole or in part (but not with respect to priority
entitlement to any award in condemnation), to any and all leases of any part of
the Premises upon the execution by Mortgagee and recording thereof, at any time
hereinafter, in the office of the recording of such documents for the locality
in which the Premises are located, of a unilateral declaration to that effect.
11. ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND COVENANTS:
(a) To the best of Mortgagor's knowledge, after due inquiry and
investigation, none of the real property owned and/or occupied by Mortgagor
located in the State of New Jersey, including but not limited to the Premises,
has ever been used by previous owners and/or operators to refine, produce,
store, handle, transfer, process or transport "Hazardous Substances", as such
term is defined in N.J.S.A. 58:10-23.11b, and Mortgagor has not in the past, nor
does Mortgagor intend in the future to use said real property, including but not
limited to, the Premises for the purpose of refining, producing, storing,
handling, transferring, processing or transporting said "Hazardous Substances".
(b) None of the real property owned by Mortgagor and located in the
State of New Jersey including, but not limited to, the Premises, has been or is
now used as a "Major Facility", as such term is defined in N.J.S.A.
58:10-23.11b, and said real property, including but not limited to the Premises,
will not be used as a Major Facility after completion of the construction,
renovation, restoration and other development work which Mortgagor intends to
undertake thereon.
(c) To the best of Mortgagor's knowledge, after due inquiry and
investigation, no lien has been attached to revenues or any real or personal
property owned by Mortgagor and located in the State of New Jersey, including
but not limited to, the Premises, as a result of the chief executive of the New
Jersey Spill Compensation Fund expending monies from said fund to pay for
"Damages", as such term is defined in N.J.S.A. 58:10-23.11b, arising from an
intentional action omission of Mortgagor or any previous owner and operator of
said real property, including, but not limited to the Premises, resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or dumping of
"Hazardous Substances", as such term is defined in N.J.S.A. 58:10-23.11b, into
waters of the State of New Jersey or onto lands from which it might flow or
drain into said waters or into waters outside the jurisdiction of the State of
New Jersey where damage may have resulted to the lands, waters, fish, shellfish,
wildlife, biota, air and other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey.
(d) Mortgagor has not received a summons, citation, directive, letter
or other communication, written or oral, from the New Jersey Department of
Environmental Protection concerning any intentional or unintentional action or
omission on Mortgagor's part resulting in the releasing, spilling, leaking,
pumping, pouring, emitting, emptying or dumping of "Hazardous Substances", as
such term is defined in N.J.S.A. 58:10-23.11b into waters of the State of New
Jersey or onto lands from which it might flow or drain into said waters or into
waters outside the jurisdiction of the State of New Jersey where damage may have
resulted to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or otherwise controlled by
the State of New Jersey.
(e) Mortgagor shall not cause or permit to exist as a result of an
intentional or unintentional action or omission on its part, a releasing,
spilling, leaking, pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances", as such term is defined in N.J.S.A. 58:10-23.11b, into waters of
the State of New Jersey or onto lands from which it might flow or drain into
said waters or into waters outside the jurisdiction of the State of new Jersey
where damage may have resulted to the lands, waters, fish, shellfish, wildlife,
biota, air and other resources owned, managed, held in trust otherwise
controlled by the State of New Jersey, unless said release, spill, leak, and so
forth, is pursuant to and in compliance with the conditions of a permit issued
by the appropriate federal or state governmental authorities.
(f) In the event that there shall be filed a lien against the Mortgaged
Premises by the New Jersey Department of Environmental Protection, pursuant to
and in accordance with the provisions of N.J.S.A. 58:10-23.11f, as a result of
the chief executive of the New Jersey Spill Compensation Fund having expended
monies from said fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.11g, and/or "Cleanup and Removal Costs", as such term is defined in
N.J.S.A. 58:10-23.11b arising from an intentional or unintentional action or
omission of Mortgagor, resulting in the releasing, spilling, leaking, pumping,
pouring, emitting, emptying or dumping of "Hazardous Substances", as such term
is defined in N.J.S.A. 58:10-23,11b, into waters of the State of New Jersey or
onto lands from which it might flow or drain into said waters or into waters,
then Mortgagor shall, within thirty (30) days from the date that that Mortgagor
is given notice that the lien has been placed against the Mortgaged Premises or
within such shorter period of time in the event that the State of New Jersey has
commenced steps to cause the Premises to be sold pursuant to the lien, either
(1) pay the claim and remove the lien from the Premises; or (2) furnish (i) a
bond satisfactory to the Title Insurance Company and Mortgagee in the amount of
the claim out of which the lien arises, (ii) a cash deposit in the amount of the
claim out of which the lien arises, or (iii) other security reasonably
satisfactory to Mortgagee in an amount sufficient to discharge the claim out of
which the lien arises.
(g) Mortgagor's use and any tenant's use of the Premises during the
term of the loan obligation will not involve the generation, manufacture,
refining, transport, treatment, storage, handling, or disposing of "Hazardous
Waste" or "Hazardous Substances" as those terms are defined in the Industrial
Site Recovery Act ("ISRA"), N.J.S.A. 13:1k-6 et seq. or the Spill Compensation
and Control Act N.J.S.A. 58:10-23.1. In the event the Mortgagor or any tenant
shall breach this Section or in any way conduct its operations of the Premises
to permit the Mortgaged Premises to be used or maintained so as to subject the
Mortgagor or any tenant of the Premises to a claim or violation, the Mortgagor
shall immediately remedy and fully cure such condition at its own cost and
expense or cause such condition to be cured and shall indemnify and save
harmless the Mortgagee from any and all damages, remedial orders, judgment
decrees, and all costs and expenses related thereto or arising therefrom,
including but not limited to attorney's and consultants' fees, cleanup, removal,
a restoration costs, and loss rentals. The Mortgagor shall cause all tenants to
comply with ISRA. To the extent that the termination of any lease or the closing
of any operation at the Premises is governed under ISRA, Mortgagor shall notify
the Mortgagee of such termination or closing and shall provide evidence or
compliance by tenants and/or operators with the provisions of ISRA.
12. RESTRICTIVE AND AFFIRMATIVE COVENANTS:
(a) Mortgagor shall not suffer or permit waste on the Premises
or remove or demolish the Premises or make any alterations to the Premises;
(b) Mortgagor shall not install, or permit to be installed, in or
on the Premises any new fixture or equipment in replacement of, substitution
for, or addition to, any fixtures or equipment in or on the Premises, if such
new fixture or equipment would be subject to a security interest held by any
person other than Mortgagee, which has priority over this Mortgage.
(c) Mortgagor covenants that it shall not sell, transfer, convey,
assign, pledge or hypothecate any interest in the Premises or any part thereof
without Mortgagee's prior written approval which may be withheld in Mortgagee's
sole discretion.
(d) Mortgagor shall not create nor permit to exist any interest,
lien, charge, encumbrance, or security interest in the Premises which has
priority over this Mortgage, or which may be subordinate to this Mortgage.
(e) Mortgagor, if an entity, shall not sell, convey, transfer, nor
assign, whether directly or indirectly, whether outright or as collateral
security, any interest in the Mortgagor, whether legal, equitable or beneficial,
which interest comprises ten (10%) percent of more, in the aggregate, in the
ownership of Mortgagor.
(f) Mortgagor covenants that it shall not sell, lease or otherwise
transfer all or a substantial portion of its assets during the term of the Loan
which would materially impair the financial condition, net worth, and/or
liquidity of Mortgagor without the express written consent of Mortgagee.
(g) Mortgagor shall not lease any portion of the Premises except as may
be permitted under this Mortgage and Mortgagor shall not further assign the
leases or rents affecting the Premises.
(h) Within ninety (90) days of the close of each fiscal year, Mortgagor
will furnish to Mortgagee copies of the following documents, certified true by
the Mortgagor: (i) actual income and expense reports, (ii) complete rent rolls
(showing for each tenant, its name, lease term, current monthly rent, past due
rents and prepaid rents), (iii) a reconciliation of rent security with
corresponding certified copies of rent security bank account statements unless
the security deposits are being held by Lender, and (iv) federal tax returns,
subject to permitted extensions by the Internal Revenue Service. The income and
expense reports shall be in a form acceptable to Mortgagee and must specify:
(1) The total income derived from the Premises from all
sources;
(2) Expenses incurred in connection with the operation and
maintenance of the Premises;
(3) The term of each tenancy; and
(4) The rent paid by each tenant.
The Mortgagee shall have the right to retain an auditor to inspect the
Mortgagor's income and expense records in connection with the Premises at no
expense to the Mortgagor. After an Event of Default, all audits shall be at
Mortgagor's sole expense.
(i) Mortgagor shall provide certified annual financial
statements and tax returns to Mortgagee within ninety (90) days of the end of
such year.
(j) Mortgagor shall promptly notify Mortgagee of the occurrence
of any of the following: (a) fire or other casualty in excess of $2,000.00; (b)
receipt of notice of condemnation; (c) receipt of notice of any violation of
law;(d) commencement of any litigation involving a claim not fully covered by
insurance and defended by the carrier in excess of $2,000.00; (e) a change in
tax assessment or proposed assessment; (f) receipt of a claim from the holder of
any lien or security interest; or (g) other material facts affecting the
Premises.
(k) Mortgagor covenants that it shall at all times use its best efforts
to keep the Premises fully rented at market rents and that it shall not
inventory or warehouse vacant units.
13. EVENTS OF DEFAULT:
The occurrence of any of the following events shall constitute an Event
of Default:
(a) The failure of Mortgagor to pay any monthly payment of principal
and interest under the terms of the Note and this Mortgage within thirty (30)
days of its due date;
(b) The failure of Mortgagor to duly observe, fulfill or perform any
covenant, condition or agreement with respect to the payment of monies on the
part of Mortgagor to be observed or performed or pursuant to the terms of the
Loan Documents other than the periodic payment of principal and interest which
shall be governed by subsection (a) above, and such default shall have remained
uncured for a period of thirty (30) days after its due date;
(c) The failure of Mortgagor to duly observe or fulfill or perform any
covenant, condition or agreement, other than monetary payments, contained in
this Mortgage, the Note or the Loan Documents, and such default shall have
remained uncured for a period of thirty (30) days after notification;
(d) The institution of proceedings by or against Mortgagor under any
bankruptcy or insolvency law, or law for the benefit of creditors or relief of
debtors; provided, however, the institution of proceedings against Mortgagor
shall not be an Event of Default if such proceedings shall be discharged or
dismissed within sixty (60) days after the commencement date thereof;
(e) If any warranty, representation, certification, financial statement
or other information made or furnished by Mortgagor at any time in connection
with the loan transaction secured hereby shall prove to be false or misleading
in any material respect when made;
(f) Any state, local or federal government or any department, bureau,
administration or instrumentality thereof or any corporation having the power of
eminent domain shall take any estate or interest in the Premises, the taking of
which would, in the reasonable opinion of Mortgagee, render the Premises
functionally inoperable for its intended purposes;
(g) Mortgagor shall have transferred or caused to have been transferred
title to or possession of any interest in the Premises, or any part thereof
(except for leases to residential tenants), or the making of an installment
contract therefore, to any party without the express written consent of the
Mortgagee;
(h) The sale, transfer, conveyance, assignment, pledge, hypothecation
or encumbrance of any interest in the ownership of Mortgagor in violation of
Section 12(e) herein;
(i) The passing of title to or possession of the Premises to a
receiver, trustee, or assignee for the benefit of creditors;
(j) The Mortgagor suffers or permits any waste on the Premises,
reasonable wear and tear excepted;
(k) Mortgagor's failure to maintain the Premises in good repair and to
undertake repairs and improvements within thirty (30) days of notification by
Mortgagee;
(l) The Mortgagor fails to comply promptly with all applicable
requirements of the federal, state and municipal governments, or of any
departments officials or bureaus thereof having jurisdiction, or uses the
Premises or property in any way that violates any federal, state of local law
ordinance rule regulation or requirement, or any restrictive covenant on the use
of the Premises, provided however, Mortgagor shall have a thirty (30) day period
from notice of such non-compliance (which must be provided to Mortgagee) to cure
the non-compliance;
(m) After application by any holder of this Mortgage to two or
more fire insurance companies lawfully doing business in the State of New Jersey
and issuing policies of fire insurance on comparable buildings situated in the
place where the Premises are situated, the companies to which such application
has been made refuse to issue such policies;
(n) The Mortgagor fails to repair or replace any buildings or
improvements damaged by fire or other casualty to the reasonable satisfaction of
the Mortgagee to the condition of the property existing immediately prior to the
casualty, or fails to maintain the Premises and property in a rentable and
tenantable condition and state of repair recognizing industry standards and with
reasonable wear and tear excepted;
(o) If Mortgagor abandons all or part of the Premises;
(p) Any material adverse change in the financial condition of the
Mortgagor or any Guarantor.
14. RENTS AFTER DEFAULT:
(a) Pursuant to the Assignment of Leases and Rents, Mortgagor is
simultaneously assigning to Mortgagee the rents, issues and profits of the
Premises theretofore accrued and thereafter accruing;
(b) After an Event of Default, Mortgagor shall hold in trust for
Mortgagee the rents, issues and profits of the Premises which Mortgagor
receives, shall not commingle the same with Mortgagor's other property, and
shall pay the same promptly to Mortgagee; and
(c) If Mortgagor remains in occupancy of the Premises during a
foreclosure action he shall keep the Premises in good repair and condition or
Mortgagee shall have the right to have Mortgagor removed; in any event
Mortgagor's occupancy shall terminate upon delivery of deed, whether voluntary
or in foreclosure.
15. REMEDIES:
Upon the happening of any one or more of said Events of Default, the
entire unpaid balance of the principal, and accrued interest, and all other sums
secured by this Mortgage shall at the option of Mortgagee become immediately due
and payable without further notice or demand, and in any such Event of Default,
Mortgagee may forthwith undertake any one or more of the following:
(a) Declare the debt to be immediately due and payable, and thereupon
the same shall become immediately due and payable;
(b) Recover judgment against Mortgagor for any debt; and neither the
recovery of judgment nor the levy of execution thereof on any property,
including the Premises, shall affect Mortgagee's rights hereunder or the lien
hereof;
(c) Enter upon and take possession of the Premises, or have a receiver
of the rents, issues and profits thereof appointed, without proof of
depreciation in the value of the Premises, inadequacy of the Premises, or
insolvency of Mortgagor; and Mortgagee or the receiver may lease the Premises,
in the name of Mortgagor, Mortgagee or the receiver, and may receive the rents
issues and profits and apply the same:
(1) To the payment of expenses of operating, maintaining,
repairing and improving the Premises, including renting commission and rental
collection commissions paid to an agent of Mortgagee or of the receiver; and/or
(2) On account of the Note, in such order and in such amounts
as Mortgagee or the receiver determines, but while in possession of the
Premises, Mortgagee or the receiver shall be liable to account only for the
rents, issues and profits actually received; and/or
(d) Take such other action to protect and enforce Mortgagee's rights
hereunder and the lien hereof, as Mortgagee deems advisable, including:
(1) The foreclosure hereof, subject, at Mortgagee's option,
and upon the filing of a Complaint in Foreclosure, Mortgagee shall be entitled
to the appointment of a receiver of the rents of the Premises without the
necessity of either inadequacy of the security or insolvency of the Mortgagor or
any person who may be legally or equitably liable to pay money secured by this
Mortgage, and the Mortgagor and each person waive such proof and consent to the
appointment of such receiver; and in any proceeding to enforce any liability of
the debt, Mortgagor shall not assert as a defense that Mortgagee failed to
foreclosure any such rights or that any such rights adversely affected the value
of the Premises; and
(2) The sale of the Premises, in a foreclosure
proceeding, and without obligation to have the Premises marshaled.
16. MORTGAGEE'S RIGHTS CUMULATIVE:
The rights and remedies of Mortgagee hereunder shall be in addition to
every other right and remedy now and hereafter provided by law; the rights and
remedies of Mortgagee shall be cumulative and not exclusive one or the other;
Mortgagee may exercise the same at such times, in such order, to such extent,
and as often as Mortgagee deems advisable, and without regard to whether the
exercise of one precedes, concurs with, or succeeds the exercise of another; no
delay or omission by Mortgagee in exercising a right or remedy shall exhaust or
impair the same, or constitute a waiver of, or acquiescence in, the default; and
no waiver of a default by Mortgagee shall extend to or affect any other default
or impair any right or remedy with respect thereto.
17. INDULGENCES AND EXTENSIONS:
Mortgagee may allow Mortgagor any indulgences, forbearances and
extensions with respect to the Note, the Premises and Mortgagor's obligations
hereunder, may waive compliance with any of the provisions hereof, and may
release all or any part of the Premises from the lien hereof, without affecting
any obligations under the Note, or the priority of the lien hereof upon the
remainder of the Premises.
18. ADVANCES BY MORTGAGEE:
Whether or not an Event of Default shall have occurred, if Mortgagor
does not pay any amount payable by it under, or fails to comply with any
provision of, this Mortgage or the Note, Mortgagee may pay such amount or comply
with such provision of, this Mortgage or the Note, and make such expenditures,
including reasonable counsel fees, in connection therewith and with enforcing
this Mortgage and the Note, for repairing, and maintaining and preserving the
Premises, for establishing, preserving, protecting and restoring the priority of
the lien hereof, for obtaining official tax searches of the Premises, for
protecting and preserving any use being made of the Premises now or hereafter,
and for advances to any trustee or receiver of the Premises, as Mortgagee deems
advisable; each amount so paid or expended, with interest at the rate stated in
the Note, shall become part of the Note and be secured hereby; and Mortgagor
shall pay to Mortgagee, on demand, the amount of each such payment or
expenditure with interest at the rate stated in the Note; but no such payment or
compliance by Mortgagee shall constitute a waiver of Mortgagor's failure so to
do or affect any right or remedy of Mortgagee with respect thereto.
19. WASTE - IMPAIRMENT OF SECURITY:
The Mortgagor shall abstain from the commission of waste on the
Premises and shall not remove, alter, or demolish any building on the land and
shall not remove or demolish any fixtures or personal property covered
by this Mortgage without the written consent of the Mortgagee which consent
shall not be unreasonably withheld. The Mortgagor covenants and agrees with the
Mortgagee and the successors and assigns of the Mortgagee that the Mortgagor
will keep and maintain the Premises and all improvements thereon and all
personal property included in this mortgage in a good condition and complete
state of repair and will promptly comply with all the requirements of the
Federal, State, and Municipal governments or of any departments or bureaus
thereof having jurisdiction; that neither the value of the Premises nor the lien
of this Mortgage will be diminished or impaired in any way by any act or
omission of the Mortgagor; and that the Mortgagor will not do or permit to be
done to, in, upon or about said Premises or any part thereof, anything that may
in any way substantially impair the value thereof, or substantially weaken,
diminish, or impair the security of this Mortgage; provided, however, that the
Mortgagor may replace obsolete or outworn items of personal property by similar
items of equal or greater value and utility, in accordance with sound practice
ordinarily employed by prudent and diligent owners of similar real property.
This Section is based upon industry standards and with reasonable wear and tear
excepted. Notwithstanding the above, Mortgagor shall have a right to remove
fixtures or improvements, if and only if the fixtures are replaced with items of
the same or better quality and nature.
20. NOTICES:
No notice, request, consent, approval, waiver or other communication
under this Mortgage or the Note shall be effective unless, but any communication
shall be effective and shall be deemed to have been given, if the same is in
writing and is mailed by certified mail, return receipt requested, postage
prepaid, or by nationally recognized overnight courier, addressed:
(a) To Mortgagor at Mortgagor's address as it then appears on
Mortgagee's records; and
(b) To Mortgagee, at its principal office as stated on page one
hereof, or such other address as Mortgagee designates.
21. INSPECTION:
Mortgagee shall have the right to conduct inspections of the interior
and exterior of the Premises from time to time. Mortgagor agrees to undertake
and complete such repairs and improvements to the Premises as reasonably
required by Mortgagee based upon such inspections. All such repair and
improvement work shall be undertaken promptly within thirty (30) days of
Mortgagee's request, weather permitting. If such repair and improvement work
cannot be completed within thirty (30) days, but Mortgagee has commenced repair,
then additional time shall be allowed to effect the repair provided the
municipality or governing authority does not require remediation in less time.
22. CROSS DEFAULT:
Any default in other obligations of Mortgagor, or its assigns, or any
related person under common control with the Mortgagor or controlled by the
Mortgagor, to Mortgagee, whether oral or written, secured or unsecured, and
regardless of their nature, and all future obligations, when they are incurred,
shall constitute a default hereunder, giving the Mortgagee the right and option
to accelerate the obligation under the Note and declare the then unpaid balance
due. This covenant shall be effective without the execution of any further
assurance, amendment of mortgage or any affirmative action by Mortgagor. In the
event the Mortgagor shall default under any other obligation or mortgage held by
Mortgagee and made by Mortgagor, such default shall constitute a default under
this Mortgage and shall entitle Mortgagee to declare the Mortgage and
accompanying Note which it secures immediately due and payable. In the event
that Mortgagor shall default hereunder, such default shall constitute default
under any and all obligations and Mortgagee at its option, may declare all such
obligations and mortgages immediately due and payable.
23. PREPAYMENT:
Mortgagor is subject to the following prepayment provisions as Borrower
under the Note:
The Loan may not be prepaid in whole, or in part, except that Borrower
shall have the right to prepay the Loan Amount in full, upon not less
than sixty (60) days written notice to Lender and upon payment of
premium as set forth in the Note (the "Prepayment Premium"). The Loan
may be prepaid without payment of the Prepayment Premium during the
sixty (60) day period preceding the end of the Loan term. The
Prepayment Premium shall be due if the Loan is accelerated due to any
default by Borrower.
Mortgagor agrees that if an Event of Default shall occur under the
Note, this Mortgage or the Loan Documents, and the maturity of the Note is
accelerated, then a tender of payment by Mortgagor or any entity related to or
affiliated with Mortgagor or by anyone on behalf of the Mortgagor of the amount
necessary to satisfy all sums due hereunder (including, without limitation, any
sums due on any judgment rendered in any foreclosure action) made at any time
prior to, during or after a judicial or public sale of the real and/or other
property mortgaged under this Mortgage, shall constitute an evasion of the
payment terms of the Note and shall be deemed to be a voluntary prepayment
thereunder, and any such payment, to the extent permitted by law, therefore must
include the Prepayment Premium set forth in the Note. The foregoing premium is
agreed by Mortgagor to be liquidated damages to compensate Mortgagee for the
loss of the investment, and not a penalty. For the purposes of this paragraph,
Mortgagor shall be deemed to have no right of prepayment until the maturity
date.
Any permitted prepayment can be made after sixty (60) days prior
written notice to Mortgagee, which notice shall specify the date of such
prepayment, and may not be withdrawn after being given.
Provided Borrower has not committed an uncured Event of Default,
application of condemnation awards to the outstanding principal shall not
require the payment of a Prepayment Premium.
24. NO CREDIT FOR TAXES:
Mortgagor will not claim or demand or be entitled to receive any credit
or credits on the principal indebtedness to secure payment of which this
Mortgage is made, or on the interest payable thereon, for so much of the taxes
assessed against said Premises as is equal to the tax rate applied to the
principal indebtedness due on this Mortgage or any part thereof, and no
deduction shall be claimed from the taxable value of said Premises by reason of
this Mortgage.
25. PERSONAL REPRESENTATIVES:
The provisions hereof shall bind and insure to the benefit of Mortgagor
and Mortgagee and their respective personal representatives, successors and
assigns.
26. COUNSEL FEES:
If Mortgagee becomes a party (by intervention or otherwise) to any
action or proceeding affecting the Premises or the title thereto or Mortgagee's
interest under this Mortgage, or employs an attorney to collect any of the
indebtedness or to enforce performance of the obligations, covenants and
agreements secured hereby, or to advise Mortgagee with respect to its rights and
remedies hereunder and under the Note in case of an Event of Default or
threatened Event of Default, Mortgagor shall reimburse Mortgagee forthwith, upon
written notice, and without further demand, for all reasonable costs, charges
and counsel fees incurred by Mortgagee in any such case, whether or not suit be
commenced, and the same shall be added to the principal sum secured hereby as a
further charge and lien upon the Premises and shall bear interest at the rate
provided for in the Note.
27. TAXATION OF NOTE AND MORTGAGE:
If at any time before the Note hereby secured is fully paid any law of
the State of New Jersey shall be enacted deducting from the value of the real
estate for the purposes of taxation, the amount of any lien thereon, or imposing
upon the Mortgagee the payment of the whole or any part of the taxes or
assessments or charges or liens herein required to be paid by the Mortgagor or
revising or changing in any way the laws relating to the taxation of mortgages
or debts secured by mortgages or the Mortgagee's interest in the Premises or the
manner of collection of taxes so as to affect adversely this Mortgage or the
debt hereby secured, or the owner and holder thereof in respect thereto, then
and in any such event, the Mortgagor, upon demand by the Mortgagee, shall pay
such taxes or assessments or reimburse the Mortgagee therefore; provided,
however, that if, in the opinion of counsel for the Mortgagee, (a) it might be
unlawful to require Mortgagor to make such payment; or (b) the making of such
payment might result in the imposition of interest beyond the maximum amount
permitted by law, then, and in such event, the Mortgagee may elect, by notice in
writing given to the Mortgagor, to declare all the indebtedness secured thereby
to be and become due and payable within sixty (60) days from the giving of such
notice. Notwithstanding the foregoing, it is understood and agreed that
Mortgagor is not obligated to pay any portion of Mortgagee's federal or state
income taxes.
28. FURTHER ASSURANCES:
At any time, and from time to time, upon request by the Mortgagee, the
Mortgagor will make, execute, acknowledge and deliver or cause to be made,
executed, acknowledged and delivered to the Mortgagee any and all further
instruments, mortgages, conveyances, deeds, certificates, and other documents as
may, in the reasonable opinion of the Mortgagee, be necessary or desirable in
order to effectuate, complete, confirm or perfect or to continue and preserve
the obligation of the Mortgagor under the Note and the lien of this Mortgage.
Upon any failure by the Mortgagor so to do, the Mortgagee may make, execute and
record any and all such instruments, certificates and documents for and in the
name of the Mortgagor and the Mortgagor hereby irrevocably appoints the
Mortgagee the agent and attorney-in-fact of the Mortgagor so to do. The
Mortgagor agrees to pay all filing, registration and recording fees and all
federal, state, county and municipal stamp taxes or other duties, imposts,
assessments and charges on all such instruments, certificates and documents.
29. DECLARATION OF NO SET-OFFS:
Within ten (10) days after requested to do so by Mortgagee, Mortgagor
shall certify to Mortgagee or to any proposed assignee of Mortgagee in writing
duly acknowledged, the amount of principal, interest, and other charges then
owing on the obligation secured by this Mortgage and by any prior liens, if any,
whether there are any set-offs or defenses against them and whether any default
has been asserted by any tenant of the Premises.
30. SECURITY AGREEMENT:
This Mortgage creates a security interest in the personal property
included in the Premises and constitutes a security agreement under the New
Jersey Uniform Commercial Code. Mortgagor, at its expense, shall execute, file
and refile such financing statements or other security agreements as Mortgagee
shall require from time to time with respect to personal property included in
the Premises.
31. SEVERABILITY:
In case any one or more of the covenants, agreements, terms or
provisions contained in the Mortgage or the Note shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms or provisions contained herein and in the Note shall be in no
way affected, prejudiced or disturbed hereby.
32. GOVERNING LAW:
This Mortgage has been executed and delivered in the State of New
Jersey and is to be construed and enforced according to and governed by the Law
of said State of New Jersey.
33. MODIFICATION:
This Mortgage cannot be changed or modified except by agreement between
the parties signed and acknowledged for recordation. The parties to this
Mortgage may agree to change the interest rate, due date or other terms or
conditions of this Mortgage or the obligation secured by this Mortgage. If the
parties agree to a change, such change shall be deemed a "modification" as
defined in P.L. 1985, c. 353, and this Mortgage shall be subject to the priority
provisions of that statute.
34. ASSUMPTION:
This Mortgage is not assumable.
35. FORBEARANCE BY MORTGAGEE NOT A WAIVER:
Any forbearance by Mortgagee in exercising any right or remedy shall
not be a waiver of or preclude the exercise of any right or remedy.
36. LOAN CHARGES:
Any and all payments under the Loan Documents, including without
limitation, the Interest Rate, Default Rate, late charges, Prepayment Premium
and any other charges or amounts due hereunder constitute material covenants of
the Loan and are: (1) a material inducement for the Lender to enter into this
Loan; (2) the Lender would not have entered into this Loan without the
Borrower's agreement and covenant to make the payments as specified in the Loan
Documents; (3) some additional payments, such as the Default Rate, are deemed by
the Lender as compensation to the Lender for the increased risk associated with
this Loan not being timely repaid and (4) the additional payments represent
reasonable estimates to the Lender in allocating its resources (both personnel
and financial) to the ongoing review, monitoring, administration and collection
of the Loan.
If the loan secured by this Mortgage is subject to a law which sets
maximum loan charges, and that law is finally interpreted so that the interest
or other loan charges collected or to be collected in connection with the loan
exceed the permitted limits, then: (a) any such loan charge shall be reduced by
the amount necessary to reduce the charge to the permitted limit; and (b) any
sums already collected from Mortgagor which exceeded permitted limits will be
refunded to Mortgagor. Mortgagee may choose to make this refund by reducing the
principal owed under the Note or by making a direct payment to Mortgagor. If a
refund reduces principal, the reduction will be treated as a partial prepayment
without any prepayment charge under the Note.
37. SERVICE OF PROCESS:
Mortgagor hereby appoints Xxxxxxxx X. Xxxxxxxxx, Esq., an attorney at
law of the State of New Jersey, as Mortgagor's agent for service of process for
any matters relating to this Mortgage and the Loan Documents. Mortgagor
covenants that revocation of such appointment shall not be effective unless
Mortgagor provides Mortgagee at least thirty (30) days prior written notice and
Mortgagor simultaneously appoints a substitute agent for service of process,
which substitute agent shall be an attorney at law of the State of New Jersey
maintaining an office in the State of New Jersey.
38. JURISDICTION:
Mortgagor hereby submits to the personal jurisdiction of the courts of
the State of New Jersey for any matters relating to this Mortgage and the Loan
Documents.
39. MORTGAGE COMMITMENT:
The Mortgage Commitment and all of its provisions shall survive the
closing of the loan.
40. WAIVER OF JURY TRIAL:
MORTGAGOR AND MORTGAGEE AGREE THAT ANY SUIT, ACTION OR PROCEEDING,
WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY MORTGAGEE OR MORTGAGOR ON OR WITH
RESPECT TO THIS MORTGAGE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT
BY A JURY. MORTGAGEE AND MORTGAGOR EACH HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND INTELLLIGENTLY AND WITH THE ADVICE OF THEIR RESPECTIVE
COUNSEL, WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING. FURTHER, MORTGAGOR WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER
IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE,
CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
MORTGAGOR ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL
ASPECT OF THIS MORTGAGE AND THAT MORTGAGEE WOULD NOT EXTEND CREDIT TO MORTGAGOR
OR BORROWER (AS APPLICABLE) IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A
PART OF THIS MORTGAGE.
MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT HE HAS RECEIVED, WITHOUT CHARGE,
A TRUE COPY OF THIS MORTGAGE AND SECURITY AGREEMENT.
Schedules Attached:
A - Premises
IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage and
Security Agreement the day and year first above written.
WITNESS: INTEGRATED ANALYTICAL
REALTY, L.L.C., a New
Jersey limited liability
company
/s/Xxxxxxxx X. Xxxxxxxxx By: /s/Xxxxxxx Xxxxxx
-------------------------- ----------------------
Xxxxxxxx X. Xxxxxxxxx, Esq. Xxxxxxx Xxxxxx,
Attorney at Law Manager
State of New Jersey
SCHEDULE A
----------
PROPERTY DESCRIPTION
--------------------
Schedule A- Item No. 4 - Rider
BEGINNING at a point in the center line of Franklin Road, also known as
Xxxxxx Road, where it is intersected by the easterly boundary of lands
belonging to the Township of Denville, said point of beginning being
distant 16.42 feet on a course of South 41 degrees 03 minutes East from a
monument found of the North side of the existing pavement and running;
thence
(1) passing through said monument and along lands of the Township of
Denville, North 41 degrees 03 minutes West 439.47 feet to a monument
in the southerly right of way line of the Erie-Lackawanna Railroad;
thence
(2) in an easterly direction, along said southerly line, being parallel
to and distant 90 feet southerly from the old center line of the
Xxxxxx and Essex Railroad, along a curve curving to the left, having
A radius of 2000.08 feet, a length of 57.36 feet, whose chord is
South 84 degrees 41 minutes 29 seconds East, 57.35 feet to a point;
thence
(3) still along said Erie-Lackawanna Railroad right of way line in an
easterly direction along a spiral curving to the left, whose chord is
South 88 degrees 05 minutes 50 seconds East 203.04 feet to a point;
thence
(4) still along the southerly side line of the Erie-Lackawanna Railroad
right of way, along a curve curving to the left having a radius 5819.65
feet a length of 402.90 feet and whose chord in North 88 degrees 35
minutes 30 seconds East, 402.79 feet to a point, thence
(5) still along said southerly side line, being along a spiral curve
whose chord in North 86 degrees 16 minutes 32 seconds East, 100.85 feet
to a point; thence
(6) still along said southerly side line, North 86 degrees 06 minutes 30
seconds East, 154.75 feet to a point where it is intersected by the
division line between the Township of Xxxxxxxx and the Township of
Rockaway; thence
(7) along said boundary and crossing a monument marking the division
between Rockaway Township and Denville Township, South 19 degrees 29
minutes 31 seconds West 218.50 feet, to a point in the center line of
the aforementioned Franklin (Xxxxxx) Road; thence
(8) along the center line of said road, in a westerly direction along
a curve curving to the left having a radius of 191.06 feet, a length of
77.58 feet and whose chord is South 73 degrees 11 minutes 49 seconds
West 77.05 feet to a point; thence
(9) still along said center line in a westerly direction along a curve
curving to the right having a radius of 613.43 feet, a length of 159.35
feet, whose chord is South 69 degrees 00 minutes 30 seconds West
158.90 feet to a point; thence
(10) still along said center line South 76 degrees 27 minutes West 70.00
feet to a point, thence
(11) still along said center line South 80 degrees 27 minutes West 269.79
feet to the point and place of BEGINNING.
The above description is in accordance with a survey prepared by The RBA Group,
dated May 18, 1977.
Being Xxxxx 0 - 00, "Xxxxxxxxx Xxxxxxxxxx Xxxx Condominium" together with 100
percent of the individual interest in the common elements thereto, according to
the Master Deed dated September 12, 1986 and recorded on December 24, 1986 in
the Xxxxxx County Clerk's Office in Book 2911 of Deeds at page 122, etc.
FOR INFORMATIONAL PURPOSES ONLY: "In compliance with Chapter 157, Laws of 1977,
premises herein is Lots 4 though 4.09 inclusive in Block 193 on the Tax Map of
the above municipality."
STATE OF NEW JERSEY
COUNTY OF ESSEX SS. :
On this 8th day of June, 2000, before me, the undersigned, personally
appeared Xxxxxxx Xxxxxx and signed the foregoing instrument, and did acknowledge
under oath to my satisfaction, that:
(a) Xxxxxxx Xxxxxx is the Manager of the limited liability company named
in the foregoing instrument;
(b) Xxxxxxx Xxxxxx signed and delivered the foregoing instrument in his
capacity as such Manager; and
(c) the foregoing instrument is the duly authorized, voluntary act and
deed of such limited liability company.
/s/Xxxxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxxx X. Xxxxxxxxx, Esq.
Attorney at Law
State of New Jersey
-------------------------------------------------------------------------------
:
MORTGAGE : Dated: June 8, 2000
-------------------------------------------------------------------------------
INTEGRATED ANALYTICAL :
REALTY, L.L.C., a New :
Jersey limited liability :
company :
:
Mortgagor, : 000 Xxxxxxxx Xxxxxx
: Randolph, New Jersey
TO : Xxxx 0 - 0.00, Xxxxx 000
XXXXXXXX XXXX, a state :
chartered bank, :
:
:
:
Mortgagee. :
-------------------------------------------------------------------------------
Record and Return To:
Xxxxx X. Xxxxxxxx, Esq.
Brach, Eichler, Xxxxxxxxx, Silver,
Xxxxxxxxx, Hammer & Gladstone
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
