Note: This same form was executed in connection with mortgages on Berlin
Shopping Center, Ledgewood Mall, New Loudon Center, and Route 6 Shopping Center
THIS MORTGAGE IS AN OPEN-END MORTGAGE AND SECURES FUTURE ADVANCES
(All notices to be given to Mortgagee pursuant to 42 Pa. C.S.A.ss.8143 shall be
given as set forth in Section 4.2 of this Mortgage.)
Pennsylvania Tax Parcel Identification Nos.
Route 6 Mall 27-14-28
27-10-15
Xxxxxxxx Xxxxx 62-087.07-004
ACADIA REALTY LIMITED PARTNERSHIP,
Mortgagor,
and
THE DIME SAVINGS BANK OF NEW YORK, FSB,
as Administrative Agent for Lenders
(as hereinafter defined) (together with its
successors in such capacity, "Mortgagee")
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
Dated as of March 30th, 2000
Mortgage Amount: $59,000,000
RECORD AND RETURN TO:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 100 19-6092
Attention: Xxx X. Xxxxxxx, Esq.
TABLE OF CONTENTS
Page
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CERTAIN DEFINITIONS ...........................................................4
ARTICLE I Mortgagor's Covenants..............................................6
1.1. Title ...................................................................6
1.2. Security Agreement.......................................................7
1.3. Recordation; Certain Costs and Expenses...................................
1.4. Obligation to Pay........................................................8
1.5. Compliance with Requirements ............................................8
1.6. Scope of Security........................................................9
1.7. Payment of Impositions for Mortgaged Property............................9
1.8. Indemnity by Mortgagor..................................................10
1.9. Insurance and Casualty..................................................11
1.10. Advances, Etc., by Mortgagee............................................14
1.11. Escrow Requirements.....................................................14
1.12. Financial Reporting.....................................................15
1.13. Maintenance and Operation of Mortgaged Property.........................15
1.14. Condemnation............................................................16
1.15. Leasing of Mortgaged Property...........................................17
1.16. Casualty to Mortgaged Property..........................................19
1.17. Interest after Default..................................................19
1.18. Due on Transfer.........................................................19
1.19. Costs of Litigation and Xxxxxxx Proceedings.............................20
1.20. Late Charge.............................................................20
1.21. Trust Fund..............................................................20
1.22. Charges for Tax Searches, Etc...........................................21
1.23. Prepayment..............................................................21
1.24. Restrictions Affecting Mortgaged Property...............................21
1.25. Hazardous Substances....................................................21
1.26. Further Assurances......................................................24
1.27. Notice to Mortgagee.....................................................24
1.28. Set-Off.................................................................24
1.29. Obligations Secured.....................................................25
1.30. Year 2000 Capability....................................................25
ARTICLE II Events of Default and Remedies....................................25
2.1. Definition of Event of Default...........................................25
2.2. Effect of Event of Default...............................................29
2.3. Foreclosure Sale Implementation..........................................31
2.4. Collection of Debt.......................................................32
2.5. Appointment of Receiver..................................................34
2.6. Possession by Mortgagee..................................................34
(i)
Page
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2.7. Remedies Cumulative.....................................................34
2.8. Right to Withdraw Proceeding, Etc.......................................34
2.9. Waiver..................................................................34
2.10. Use and Occupancy of Mortgaged Property.................................35
2.11. Mortgagee's Attorneys' Fees.............................................35
2.12. Effect of Mortgagor's Tender............................................35
2.13. Mortgagee's Failure to Allow Cure Period................................35
ARTICLE III Representations and Warranties...................................36
3.1. Title, Etc..............................................................36
3.2. Compliance with Requirements, Etc.......................................36
3.3. Rent Roll...............................................................36
3.4. Easements, Etc..........................................................36
3.5. No Misrepresentations...................................................36
3.6. Governmental Approvals..................................................36
3.7. Approvals of Loan Documents.............................................37
3.8. Other Beneficiaries.....................................................37
3.9. Federal Law.............................................................37
3.10. Hazardous Substances....................................................37
3.11. Split Tax Lots..........................................................38
ARTICLE IV Miscellaneous.....................................................38
4.1. Partial Invalidity......................................................38
4.2. Notices.................................................................38
4.3. Waiver of Notice........................................................39
4.4. Successors and Assigns..................................................39
4.5. Usury Savings...........................................................39
4.6. Counterparts............................................................40
4.7. Governing Law...........................................................40
4.8. Written Amendments......................................................40
4.9. Actions, Approvals and Determinations...................................40
4.10. Receipt of Copy.........................................................40
4.11. Modifications, Releases, Etc............................................40
4.12. Construction............................................................41
4.13. Non-Merger..............................................................41
ARTICLE V Transfer Taxes.....................................................41
ARTICLE VI Additional Provisions.............................................42
6.1. Assignment of Leases and Rents...........................................42
6.2. Type of Property.........................................................43
6.3. Maximum Principal Indebtedness Secured...................................43
6.4. Exculpation..............................................................43
6.5. Exculpation of Trustees..................................................44
6.6. Reduction of Mortgage Amount.............................................44
(ii)
THE AMOUNT OF THIS MORTGAGE IS $59,000,000
(THE "MORTGAGE AMOUNT").
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT,
made as of the 30th day of March, 2000, from Acadia Realty Limited Partnership,
a Delaware limited partnership, having an address at c/o Acadia Realty Trust, 00
Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 ("Mortgagor"), to THE
DIME SAVINGS BANK OF NEW YORK, FSB, a banking corporation chartered under the
laws of the United States, as Administrative Agent for Lenders (as hereinafter
defined) having an address at EAB Plaza, Thirteenth Floor, Uniondale, New York
11556-0123 (together with its successors in such capacity, "Mortgagee"),
WITNESSET THAT:
WHEREAS, Mortgagor is on the date of this Mortgage the owner of fee
title to that certain parcel of land and improvements thereon commonly known as
Xxxxxxxx Xxxxx Center, located in Bradford County, Pennsylvania and more
particularly described in Schedule A-1 annexed hereto and made part hereof and
of fee title to that certain parcel of land and improvements thereon commonly
known as U.S. Route 6 Mall, located in Xxxxx County, Pennsylvania and more
particularly described in Schedule A-2 annexed hereto and made part hereof,
WHEREAS, concurrently with the execution and delivery of this Mortgage,
Assignment of Leases and Security Agreement (this "Mortgage"), Mortgagor will
borrow up to FIFTY NINE MILLION AND NO/100THS DOLLARS ($59,000,000) from
Lenders, which loan will be secured by this Mortgage, pursuant to the Loan
Agreement identified below;
WHEREAS, Xxxxxxxxx has executed and delivered its note, dated the date
hereof, in the amount of $59,000,000 to The Dime Savings Bank of New York, FSB
(in its individual capacity as a Lender and not as Mortgagee, "The Dime"), which
note obligates Mortgagor to pay the Mortgage Amount, or so much thereof as may
be advanced from time to time in accordance with the terms of the Loan Agreement
(said note, as the same may hereafter be amended, modified, extended, severed,
assigned, renewed, replaced, or restated, and including any substitute or
replacement notes executed pursuant to Sections 3.07 or 11.05 of the Loan
Agreement, is hereinafter referred to individually and collectively as the
"Note");
WHEREAS, this Mortgage is an "Open-End Mortgage" as set forth in 42 Pa.
C.S.A. ss.8143 and secures obligations up to a maximum amount of principal
indebtedness outstanding at any time of Seventy Five Million Dollars
($75,000,000), plus accrued and unpaid interest and other sums thereon,
including, but not limited to, advances, whenever made, for the payment of
taxes, assessments, maintenance charges, insurance premiums, costs incurred for
the protection of the Premises or the lien of this Mortgage, expenses incurred
by Mortgagee by reason of any default by Xxxxxxxxx under this Mortgage,
including, without limitation, legal fees and costs incurred by Mortgagee in
connection therewith, and advances for alteration or renovation on the Premises,
together with all other sums due hereunder or under the Note or the Loan
Agreement and other Loan Documents (as defined in the Loan Agreement) or secured
hereby; and
WHEREAS, in order to secure the payment of the Note, Xxxxxxxxx has duly
authorized the execution and delivery of this Mortgage.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained,
TO SECURE (a) the full, faithful and punctual (i) payment by Mortgagor
of all sums payable under the Note or any other Loan Document (as hereinafter
defined) up to the Mortgage Amount and (ii) performance of and compliance with
each and every term, condition, agreement, undertaking, covenant and provision
to be performed or complied with by Mortgagor pursuant to the Loan Documents,
and (b) the truth, accuracy and completeness of all representations and
warranties made by Mortgagor to Mortgagee in the Loan Documents or otherwise in
connection with the Loan, Xxxxxxxxx does hereby creates in favor of Mortgagee a
security interest in, and, by these presents, intending to be legally bound,
does hereby irrevocably give, grant, bargain, sell, warrant, alien, enfeoff,
remise, release, convey, assign, transfer, mortgage, hypothecate, deposit,
pledge, set over and confirm unto Mortgagee, its successors and assigns, all of
Xxxxxxxxx's estate, right, title, interest, claim and demand (whether at law or
in equity, in possession or expectancy) in, to and under the following described
property (collectively, the "Mortgaged Property"), whether now owned or held or
hereafter acquired by Mortgagor:
(i) the premises described in Schedule, including all
easements, rights, privileges and appurtenances that in any way belong
or appertain to such premises, and all estate, right, title, interest,
claim or demand whatsoever of Mortgagor therein and in the streets and
ways adjacent thereto, whether in law or in equity, in possession or
expectancy, now or hereafter acquired, together with any and all
options held by Mortgagor to purchase, lease, or sublease or otherwise
acquire such premises or any portion thereof or interest therein, and
any greater estate in such premises now owned or hereafter acquired by
Mortgagor (collectively, the "Premises");
(ii) all structures, buildings or other improvements now or
hereafter located upon the Premises or on any part thereof, including
all plant, equipment, apparatus, machinery and fixtures forming part of
said structures, buildings and other improvements (all, collectively,
the "Improvements");
(iii) all fixtures, fittings, furniture, furnishings,
appliances, apparatus, equipment, machinery and other articles of
personal property (including without limitation all building service
equipment and building materials 'and supplies), other than those owned
by lessees, now or at any time hereafter attached to, placed upon, or
used or to be used in any way in connection with the use, enjoyment,
occupancy or operation of the Premises or the Improvements (all,
collectively, the "Chattels");
(iv) all leases, subleases, tenancies, subtenancies and rental
and occupancy agreements for the use and occupancy of all or any
portion of the
2
Mortgaged Property which are now in existence or which may exist at any
time during the period that this Mortgage is in effect, together with
any modifications, amendments, renewals or extensions of any of the
foregoing, whether or not written and, if written, whether or not
recorded (all of which present and future leases, subleases, tenancies,
subtenancies and rental and occupancy agreements, as modified, amended,
renewed or extended, are hereinafter referred to, each as a "Lease"
and, collectively, as the "Leases"), and all estate, right, title,
interest, claim and demand of Mortgagor under the Leases, including,
without limitation, any cash or securities deposited by lessees or
others to secure their performance, the rents and all other sums
payable thereunder and the right to receive and collect the rents,
revenues, receipts, income, earnings, issues, accounts receivable and
profits derived from the Mortgaged Property (collectively, the
"Rents") (subject, however, to any license to collect the Rents granted
by Mortgage to Mortgagor herein and all guarantees of the performance
of lessees and other obligors under such leases and other agreements
and instruments;
(v) all Authorizations (as hereinafter defined), agreements,
franchises, applications, and other authorizations relating to the use,
occupation, development, subdivision or operation of the Mortgaged
Property or any business or activity conducted by or on behalf of
Mortgagor on the Mortgaged Property, including, without limitation, all
trade names and other names under or by which the Mortgaged Property or
any of the Improvements may at any time be operated or known and all
rights to conduct business under any such names or any variant thereof,
and all trademarks, good will, operating agreements, contract rights,
service rights, accounts receivable, books and records and general
intangibles (as such term is defined in the Uniform Commercial Code in
effect in the state where the Premises are situated (as same may
hereafter be amended from time to time, the "Uniform Commercial Code"))
now owned or hereafter acquired, in any way relating to the Mortgaged
Property;
(vi) all shares of stock or other evidence of ownership of any
part of the Mortgaged Property that is owned by Mortgagor in common
with others and all rights of Mortgagor in any owners' or members'
association or similar group having responsibility for managing or
operating any part of the Mortgaged Property;
(vii) all present and future insurance policies now or
hereafter in effect insuring the Mortgaged Property or any portion
thereof or any Rents derived therefrom, and any unearned premiums
therefor accrued or to be accrued and all proceeds payable thereunder,
together with all moneys now or hereafter on deposit for the payment of
premiums in respect of such policies and Impositions (as defined in
Section 1.7(a)), and all refunds of real estate taxes and assessments;
(viii) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or liquidated claims,
including, without limitation, proceeds of insurance and condemnation
awards, judgments, awards of damages and settlements made as a result
or in lieu of any condemnation, together with all claims, demands,
causes of action and recoveries for any loss or diminution in value of
any of the foregoing;
3
(ix) all warranties, guarantees, plans and specifications,
shop and working drawings, soil tests and other environmental site
tests and all other documents and materials (of any and every kind and
nature) now or hereafter existing in respect of the Mortgaged Property;
(x) all betterments, renewals, extensions and replacements of,
all substitutions for, and all additions, accessions and appurtenances
to, the Mortgaged Property, hereafter acquired by or released to
Mortgagor or constructed, assembled or placed by or for Mortgagor at,
on or beneath the Premises or attached to the Premises or the Mortgaged
Property, as more particularly provided in Section 1.6 of this
Mortgage; and
(xi) all claims (of any and every kind and nature) relating to
the foregoing components of the Mortgaged Property.
TO HAVE AND TO HOLD unto Mortgagee, its successors and assigns forever.
Xxxxxxxxx further agrees as follows:
CERTAIN DEFINITIONS
Unless the context otherwise specifies or requires, each term specified
below shall have the meaning ascribed to it below.
"Authorizations" (each, an "Authorization") means all permits,
certificates, approvals, consents, licenses and authorizations (including,
without limitation, Environmental Authorizations) required to be obtained from
Governmental Authorities (as hereinafter defined) in order that the Mortgaged
Property shall be owned, used, operated and maintained, and that Mortgagor's
business thereat shall be conducted, in accordance with pertinent Requirements
(as hereinafter defined).
"Default Rate" means the rate (or, if more than one, the highest of the
rates) of interest as set forth in the Loan Agreement, but in no event to exceed
the maximum rate allowed by law.
"Environmental Authorizations" means all Authorizations that pertain to
health, Hazardous Substances (as hereinafter defined) or environmental or
ecological conditions at, on, under or about the Mortgaged Property.
"Environmental Conditions" (each, an "Environmental Condition") means
all conditions relating to Hazardous Substances present at or emanating from the
Mortgaged Property, including, without limitation, the past, present or future
Release (as hereinafter defined) of Hazardous Substances and their presence in
the 'environment. This term also includes the residual contamination of
equipment and/or facilities and off-site treatment, recycling, reclamation,
transportation, storage, handling or disposal of Hazardous Substances from the
Mortgaged Property.
"Environmental Laws" (each, an "Environmental Law") means all
Requirements pertaining to health, Hazardous Substances or environmental or
ecological conditions at, on, under or about the Mortgaged Property.
4
"Event of Default" is defined in Section 2.1.
"Governmental Authority" (collectively, "Governmental Authorities"
means the United States of America, the state and city, town or other
municipality in which the Premises are situated, any agency, court, department,
commission, board, bureau, instrumentality or political subdivision of any of
the foregoing, and any arbitration panel or tribunal, in each instance now
existing or hereafter created, having or claiming jurisdiction over Mortgagor,
the Mortgaged Property or the use, occupancy, operation or condition of the
Mortgaged Property or any portion thereof.
"Hazardous Substances" (each, a "Hazardous Substance") means (i)
asbestos and asbestos-containing materials, radon, polychlorinated biphenyls,
formaldehyde, flammable explosives, radioactive materials, petroleum and
products containing or derived from petroleum, underground storage tanks and
other underground storage facilities (i.e., any tank or facility and related
piping system of which ten percent (10%) or more by volume is underground), (ii)
any and all materials, substances, pollutants, contaminants and wastes subject
to, or defined as "hazardous substances", "hazardous waste", "hazardous
material", "hazardous air pollutant", or "petroleum products" under, any
Environmental Law, and (iii) any and all other hazardous or toxic materials,
substances, pollutants, contaminants and wastes.
"Lenders" means, collectively, The Dime and such other lending
institutions who become "Lenders" pursuant to the Loan Agreement, together with
their successors and permitted assigns in accordance with the terms of the Loan
Agreement.
"Loan" means Mortgagee's loan made to Mortgagor the same day as this
Mortgage, in an amount equal to the principal amount of the Note.
"Loan Agreement" means that certain Term Loan Agreement, dated as of
the date hereof, among Mortgagor, as Borrower, and Mortgagee, as Lender and
Administrative Agent, as the same may hereafter be amended, modified or
supplemented from time to time.
"Loan Documents" (each, a "Loan Document") means, collectively, the
Loan Agreement, this Mortgage; the Note; any guaranty(ies) executed in
connection with the Loan (including, without limitation, the Agreement of
Guaranty, Undertaking and Indemnity); and any and all other instruments
delivered (whether now or hereafter and whether by Mortgagor or any other
person) to the holder of the Note in connection with this Mortgage and the Loan
including, but not limited to, the Mortgages of certain real property owned by
Xxxxxxxxx and more particularly described herein.
"Loan Maturity Date" means the maturity date of the Note.
"Note" means the Promissory Note dated the same day as this Mortgage
executed by Xxxxxxxxx in favor of Mortgagee in the amount of Fifty-Nine Million
Dollars ($59,000,000), together with any and all amendments, extensions,
renewals, modifications, refinancings and increases in the amount of, and
substitutions for, same.
5
"Notices" (each, a "Notice") means: (i) citizen or governmental notices
of intent to sue under an Environmental Law or common law cause of action; (11)
requests for information under the authority of an Environmental Law; (iii)
notices of administrative actions or orders seeking penalties, fines, or
remedial activity under any Environmental Law; (iv) any "potentially responsible
party" letters under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. xx.xx. 6902 et seq. ("CERCLA"); (v) judicial
complaints; (vi) notices of administrative or judicial enforcement actions
related to any Environmental Law; (vii) notices of violation related to any
Environmental Law received by any Guarantor, or (viii) any notice of formal or
informal investigation by any agency, or any consent order, whether proposed or
final.
"Prepayment Charge" means the Prepayment Charge provided for in the ID
Note, if any.
"Principal(s) of Mortgagor" means Acadia Realty Trust, a Maryland real
estate investment trust.
"Requirements" (each, a "Requirement") means all laws, statutes,
regulations, ordinances, codes, rules, rulings, directives, determinations,
judgments, decrees, orders, injunctions, arbitral decisions, Authorizations,
Environmental Laws and other requirements of every Governmental Authority now or
hereafter in effect (including any of the foregoing that heretofore have been
promulgated but which are not yet in effect), in each instance as modified,
amended, renewed and/or extended, which are applicable to Mortgagor, to the
Mortgaged Property or any portion thereof, to the use, manner of use, occupancy,
possession, condition, operation, maintenance, alteration, repair, replacement,
or restoration of the Mortgaged Property or any portion thereof or to the
conduct of Mortgagor's business at the Mortgaged Property.
"To the best of Xxxxxxxxx's knowledge" means, with respect to any
representation, warranty or certification contained in this Mortgage as to which
such phrase is expressly applied, that, after due inquiry, Xxxxxxxxx knows of no
fact(s) and has received no commununication(s), oral or written, which would
cause a reasonably prudent person in the position of Mortgagor to refrain from
making the representation, warranty or certification in question.
ARTICLE I
Mortgagor's Covenants
Mortgagor covenants and agrees for the benefit of Mortgagee as follows:
1.1. Title. This Mortgage is and shall remain a valid and enforceable
first lien on the Mortgaged Property, subject solely to the exceptions referred
to in Section 3. 1. At Mortgagor's sole cost and expense, Xxxxxxxxx shall defend
and fully protect and preserve such title and the validity and priority of the
lien of this Mortgage against the claims of all other persons and entities.
6
1.2. Security Agreement. This Mortgage shall constitute a security
agreement with respect to such components of the Mortgaged Property as to which
a security interest may attach under the Uniform Commercial Code and, with
respect to such of the Chattels as at any time may be fixtures, a fixture filing
under the Uniform Commercial Code. The Mortgaged Property consists of both real
and personal property. The filing of UCC-1 financing statements ("UCC-1s") in
the records customarily pertaining to personal property shall not be construed
as in any way derogating from the intention of the parties hereto that all
Chattels and other property used in connection with the production of Rents or
which are referred to in this Mortgage are, and at all times and for all
purposes and in all proceedings, both legal and equitable, shall be, regarded as
real estate whether or not (a) any such item is physically' attached to the
Premises or any of the Improvements, (b) serial numbers are used for the better
identification of certain of the Chattels capable of being thus identified in a
recital contained herein or (c) any such item is referred to in any UCC-1 so
filed at any time. Similarly, the mention in the UCC- of (x) the rights in the
proceeds of any fire and/or hazard insurance policy, (y) any award in
condemnation or eminent domain proceedings for a taking or for loss of value, or
(z) the debtor's interest as lessor in any present or future Lease or rights to
income growing out of the use or occupancy of the Mortgaged Property, whether
pursuant to a Lease or otherwise, shall never be construed as in any way
derogating from, or altering any of the rights of Mortgagee set forth in this
Mortgage or impugning the priority of Mortgagee's lien granted hereby or by any
other recorded instrument, but such mention in the UCC-1s is declared to be for
the protection of Mortgagee in the event any court or judge shall at any time
hold with respect to (x), (y) or (z) above that notice of Mortgagee's priority
of interest, to be effective against a particular class of persons, must be
filed in the Uniform Commercial Code records. The addresses of Mortgagor
(Debtor) and Mortgagee (Secured Party) are set forth on page I of this Mortgage.
This Mortgage is to be filed for record with the recorder of deeds of the county
or counties in which the Premises are situated. Mortgagor is the record owner of
the Mortgaged Property.
1.3. Recordation: Certain Costs and Expenses. (a) Recording and Filing
Upon the execution and delivery of this Mortgage, and thereafter from time to
time, whether or not Mortgagee so demands, Mortgagor, at Mortgagor's sole cost
and expense, shall cause this Mortgage and any other instrument creating or
evidencing Mortgagee's lien upon, or security interest in, the Mortgaged
Property and each Document of Further Assurance (as defined in Section 1.26) to
be filed, registered or recorded, as the case may be, in such manner and in such
places as may be required by any Requirement in order to publish notice of, and
fully to protect and preserve, the liens and security interests created by and
granted pursuant to this Mortgage with respect to the Mortgaged Property.
(b) Fees and Costs of Mortgage. Related Documents. Mortgagor shall
punctually pay in strict compliance with applicable Requirements (i) all filing,
registration or recording fees with respect to, and all other expenses incident
to, the execution, acknowledgment and filing, registration or recording of this
Mortgage, any amendment, extension, renewal or modification hereof, any mortgage
supplemental hereto, any other security instrument with respect to the Mortgaged
Property, any Document of Further Assurance, and any other Loan Document, and
(ii) all stamp taxes and other taxes, duties, imposts, assessments and charges
imposed by Governmental Authorities arising out of or in connection with the
execution, delivery, filing, registration, or recording of any of the foregoing.
7
1.4. Obligation to Pay. Mortgagor shall punctually pay in strict
compliance with the Loan Documents (a) the principal, interest, Prepayment
Charge and all other sums evidenced by the Note and (b) all other moneys,
indebtedness, obligations and liabilities (of any and every kind or nature) now
or hereafter owing (whether to Mortgagee, any Governmental Authority or any
other third party) pursuant to any one or more of the Loan Documents. All of the
foregoing shall be deemed to be indebtedness secured by this Mortgage and shall
be paid without any abatement, credit, reduction, deduction, claim,
counterclaim, set-off or offset whatsoever, and free and clear of all defenses.
1.5. Compliance with Requirements. (a) Legal Requirements. Mortgagor
shall fully, faithfully and punctually comply (and shall cause all lessees and
other persons and entities that occupy or enter upon the Mortgaged Property at
all times so to comply) with all applicable Requirements, including, without
limitation, Requirements that, if violated, would cause the Mortgaged Property
or a part thereof to be subject to forfeiture. Mortgagor, if a corporation,
partnership, trust or other legal entity, shall do all things necessary to
preserve and keep in full force and effect in all jurisdictions where the same
presently are in force and effect Mortgagor's existence, franchises, rights and
privileges.
(b) Insurance Policy Requirements. Mortgagor shall fully, faithfully
and punctually comply (and shall cause all lessees and other persons and
entities that occupy or enter upon the Mortgaged Property so to comply) with all
provisions of all insurance policies covering or applicable to any portion of
the Mortgaged Property, all requirements of the issuer of any such policies and
all orders, rules, regulations, directives, codes and other requirements of the
National Board of Fire Underwriters (or any successor body or other body
performing similar functions) applicable to Mortgagor, to the Mortgaged Property
or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration or repair of the Mortgaged Property or any portion thereof, except
that Mortgagor shall not effect any such compliance that necessitates structural
changes to any of the Improvements without the prior written consent of
Mortgagee.
(c) Senior Liens. If this Mortgage is a second or more junior mortgage
on the Mortgaged Property, then: (i) Mortgagor shall fully, faithfully and
punctually perform and comply with each and every term, covenant, and condition
of any more senior mortgage (a "Senior Mortgage") and never permit the same to
go into default; (ii) the occurrence of any circumstance or event that would
permit the holder of any Senior Mortgage to exercise any remedy under such
Senior Mortgage shall automatically and immediately (upon the expiration of any
applicable' grace period provided for under the Senior Mortgage) and without
notice from Mortgagee constitute an Event of Default under this Mortgage; (iii)
Mortgagor shall not make any agreement with the holder of any Senior Mortgage
that shall in any way modify, change, alter or extend any of the terms or
conditions set forth in such Senior Mortgage or in any instrument executed in
connection therewith, nor shall Mortgagor request or accept any future advances
under such Senior Mortgage or any such other instrument, without Mortgagee's
express written consent; and (iv) so long as the Senior Mortgage has not
8
been discharged, notwithstanding anything to the contrary in this Mortgage, the
relative priorities of this Mortgage and the Senior Mortgage(s) shall be
governed by otherwise applicable law.
1.6. Scope of Security All right, title and interest of Mortgagor in
and to all betterments, renewals, extensions and replacements of, all
substitutions for, and all additions, accessions and appurtenances to, the
Mortgaged Property, hereafter acquired by, or released to, Mortgagor or
constructed, assembled or placed by or for Mortgagor at, on or beneath the
Premises or attached to the Improvements, and all conversions of any of the
foregoing, immediately upon such acquisition, release, construction, assembling,
placement or conversion, as the case may be, without any further mortgage,
conveyance, assignment or other act of Mortgagor, shall become sub ect to the
liens and security interests created by or pursuant to this Mortgage as fully
and completely, and with the same effect, as if now owned by Xxxxxxxxx and
specifically described herein. Mortgagor shall, however, execute and deliver to
Mortgagee any and all such further assurances, mortgages, conveyances or
assignments thereof as Mortgagee may reasonably require for the purpose of
expressly and specifically subjecting the same to the lien of this Mortgage.
1.7. Payment of Impositions for Mortgaged Property. (a) Taxes.
Charges, Etc, Except to the extent that Mortgagee exercises the right specified
in Section 1. 11, Mortgagor shall, at least ten days before the applicable due
date, pay and discharge all taxes and other charges of every kind and nature
imposed upon or assessed against Mortgagor or the Mortgaged Property or any
portion thereof or upon the Rents derived therefrom or arising in respect of the
occupancy, use, possession or transfer thereof, including, without limitation,
real estate, school, personal property, income, gross receipts and franchise
taxes; water, water meter and sewer rents, rates and charges; service charges
with respect to police protection, fire protection, street and highway
construction, maintenance and lighting, sanitation and water supply; assessments
and levies; permit, inspection and license fees; and all other public and
private charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, together with all interest, fines and penalties applicable thereto
(each of the foregoing, an "Imposition" and, collectively, "Impositions").
Mortgagor shall, upon Mortgagee's request, promptly deliver to Mortgagee
documentation reasonably satisfactory to Mortgagee evidencing such payments.
(b) Liens and Claims. Xxxxxxxxx shall promptly pay all lawful claims
and demands of mechanics, materialmen, laborers and others that, if not timely
paid, might result in, or permit the creation of, a lien, other encumbrance or
charge on the Mortgaged Property or any part thereof, or on the Rents derived
therefrom, or lead to the interruption or suspension of any business of
Mortgagor. Mortgagor shall, upon Xxxx xxxx'x request, promptly deliver to
Mortgagee evidence reasonably satisfactory to 9 Mortgagee of any such
payment. Mortgagor shall not create or permit to be created any mortgage, lien,
other encumbrance or charge on the Mortgaged Property or any part thereof or on
the interest of Mortgagor or Mortgagee or any Lender therein other than this
Mortgage and promptly shall cause any such mortgage, lien, other encumbrance or
charge to be discharged, bonded or otherwise secured to Mortgagee's
satisfaction.
(c) Xxxxxxxxx's Right to Contest. Mortgagor, in good faith and at
Xxxxxxxxx's sole cost and expense and after Mortgagee shall have received
written notice
9
thereof from Mortgagor, may contest the amount or the validity of any Imposi
tion by appropriate legal proceedings, provided that (1) Mortgagor shall
prosecute such proceedings diligently; (ii) no Event of Default shall exist
during the pendency of any such proceedings; (iii) Mortgagor shall have paid
same in full under protest unless such proceedings shall operate to suspend the
collection of any such Imposition or other realization thereon and neither the
Mortgaged Property nor any part thereof nor interest therein nor any of the
Rents derived therefrom would, by reason of such suspension, be forfeited or
lost, or subjected to any lien, other encumbrance or charge and neither
Mortgagor nor Mortgagee would, by reason thereof, be subject to civil or
criminal liability; (iv) during such contest Mortgagor shall, at the option of
Mortgagee, provide security satisfactory to Mortgagee assuring the payment of
the contested Imposition and of any additional charge, fine, penalty or expense
arising from or incurred as a result of such contest and any costs or expenses
incurred or to be incurred by Mortgagee in connection with or as a consequence
of Xxxxxxxxx's contest; and (v) if at any time nonpayment of any Imposition
would result in the delivery of a tax deed or similar instrument to the
Mortgaged Property or any portion thereof or any forfeiture with respect to the
Mortgaged Property, then Mortgagor shall pay such Imposition (together with all
applicable fines, penalties and other governmental charges and any interest or
costs with respect thereto) in time to prevent the delivery of such deed or
instrument or the effectuation of such forfeiture.
1.8. Indemnity by Mortgagor. Mortgagor shall defend and indemnify
Mortgagee and all directors, officers, shareholders, employees, attorneys and
agents of Mortgagee (collectively, the "Indemnified Parties") against, and save
the Indemnified Parties harmless from, and shall reimburse the Indemnified
Parties with respect to, any and all claims, demands, actions, causes of action,
injuries, orders, losses, liabilities (statutory or otherwise), obligations,
damages (including, without limitation, consequential damages), fines,
penalties, taxes, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by, imposed upon or asserted against the
Indemnified Parties or any one or more of them by reason of, or in connection
with, (a) Mortgagee's interest in any Loan Document or the Mortgaged Property,
(b) any misrepresentation or other incorrect statement or certification by
Mortgagor or any Guarantor contained in this Mortgage or any other Loan
Document, (c) any failure by Mortgagor to comply with any of the terms,
conditions or other provisions set forth in this Mortgage or any other Loan
Document or in any recorded instrument that affects the Mortgaged Property, (d)
any acts or omissions of Mortgagee in connection with the exercise by Mortgagee
of any right, power or remedy available to Mortgagee under this Mortgage or any
other Loan Document, (e) any use, non-use, possession, occupancy, alteration,
repair, condition (whether patent or latent), operation, maintenance or
management of the Mortgaged Property or any portion thereof, or (f) any
accident, injury (including death at any time resulting therefrom) or damage to
any person or property occurring in, on or about the Mortgaged Property or any
portion thereof, whether resulting from any act or omission of Mortgagor or any
agent, employee, contractor, xxxxxx, sublessee, licensee or invitee of Mortgagor
or otherwise. Mortgagor shall pay, and save Mortgagee harmless from, any taxes,
impositions, charges, assessments or levies except income and franchise taxes
imposed on Mortgagee by reason of Mortgagee's ownership of the Note or this
Mortgage or any other Loan Document or by reason of a sale or other transfer of
the Mortgaged Property or any
10
portion thereof. All amounts payable to Mortgagee under this Section 1.8 shall
be payable upon demand by Mortgagee, together with interest at the Default Rate
from the date of such demand until the date of receipt by Mortgagee of full
payment, and shall be secured by this Mortgage. Mortgagor's obligations under
this Section 1.8 shall survive payment in full of the Note and the other Loan
Documents and any discharge, release or satisfaction of this Mortgage, any
complete or partial foreclosure of this Mortgage and/or the delivery of one or
more deeds in lieu of any such foreclosure.
1.9. Insurance and Casualty. (a) Casualty Insurance. Mortgagor shall
keep the Improvements and Chattels insured for the benefit of Mortgagee for one
hundred percent (100%) of full replacement cost in so-called "all-risk" form.
The applicable policies shall include (i) coverage against loss or damage by
fire, flood, earthquake, underground hazards, collapse and explosion and such
other hazards as may be specified at any time by Mortgagee, (ii) replacement
cost and agreed amount endorsements or the equivalent thereof (with no reduction
for depreciation), an endorsement covering the costs of demolition and the
increased costs of construction attributable to the enforcement of laws,
building codes and/or ordinances, and (iii) "time element" coverage, which shall
ensure payment to Mortgagee of all moneys due Mortgagee under the Loan Documents
and "extra expense" (i.e., soft costs) coverage.
(b) Other Insurance. Mortgagor shall also maintain (i) policies that
provide boiler and machinery comprehensive coverage for all mechanical and
electrical equipment at the Premises insuring against breakdown or explosion of
such equipment on a replacement cost value basis; such policies shall provide
the coverage specified in clause (iii) of the preceding paragraph (a); (ii)
business interruption or loss of rental income insurance for a period of not
less than one year in connection with all policies of property and boiler and
machinery insurance; (iii) commercial general liability insurance (including
contractual liability) covering the Premises and Mortgagor's operations in an
amount not less than One Million Dollars ($1,000,000) per occurrence and Two
Million Dollars ($2,000,000) in the aggregate per location; (iv) commercial
automobile liability insurance with a limit of not less than One Million Dollars
($1,000,000) combined single limit and endorsed to cover owned, hired and
non-owned automobiles; (v) worker's compensation insurance covering all of
Mortgagor's employees situated at the Premises in accordance with statutory
requirements of the State of New York and including an endorsement for
employer's liability coverage; and (vi) umbrella liability insurance in excess
of the foregoing liability coverage with a limit of not less than Five Million
Dollars ($5,000,000) or such higher limits as Mortgagee may specify. The
foregoing commercial general liability and umbrella liability policies shall
also contain a so-called "products-completed operations endorsement." If any
part of the Premises is at any time used for the sale or dispensing of beer,
wine or any other alcoholic beverages, so-called "Dram Shop" or "Liquor Law
Liability Insurance" against claims brought by, or liability arising directly or
indirectly to, persons or property on account of such sale or dispensing of
beer, wine or other alcoholic beverages shall also be furnished (including
coverage against loss of means of support), all in such amounts as Mortgagee may
specify. To the extent applicable, special coverages must also be furnished for
other operations of Mortgagor or any tenants at the Premises, including garage
operations, asbestos removal and such other operations as may be designated by
Mortgagee from time to time. In addition, if any underground fuel storage tank
is situated at the Premises, then Mortgagor
11
shall maintain, in such amounts as Mortgagee may specify, "Environmental
Impairment Liability Insurance" covering the cost of clean up and/or removal
(on or off the Premises) associated with a spill or a leak emanating from such
tank.
(c) No Separate Insurance. Mortgagor shall not procure separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained under this Section 1.9.
(d) Flood Insurance. If the Mortgaged Property is located in an area
that has been, or at any time is, identified by the secretary of Housing and
Urban Development as a flood hazard area, Mortgagor shall keep the Improvements
and Chattels insured against loss by flood in such amount as Mortgagee shall
require. All proceeds of any such insurance shall be payable to Mortgagee and
may be applied as set forth in Section 1.9(h) below.
(e) Policy Requirements. All insurance required or permitted to be
maintained pursuant to this Section 1.9 shall (i) be maintained at the sole cost
and expense of Mortgagor; (ii) be written in such forms and by such companies as
are satisfactory to Mortgagee (each such company, in any event, shall be
authorized to do business in the state where the Premises are situated and shall
have an Xxxxxx X. Best Company, Inc. rating of "A-:X" or higher); (iii) contain
the standard New York State Mortgagee Clause or an equivalent satisfactory to
Mortgagee or, with respect to any insurance as to which the foregoing shall not
be applicable, provide for Mortgagee to be named as an additional insured; (iv)
name Mortgagee as the loss payee; (v) include waivers by all insurers of all
rights of subrogation against any named or additional insured, the indebtedness
secured hereby and the Mortgaged Property; (vi) except as otherwise agreed to in
writing by Mortgagee, provide for no deductible in excess of 10,000 per loss;
and (vii) provide that no cancellation (including, without limitation, for
nonpayment of premiums), reduction in amount or material change in coverage
shall be effective until at least thirty (30) days after receipt by Mortgagee of
written notice thereof; (viii) provide that no act or omission or negligence of
Mortgagor or any other named insured or violation of warranties, declarations or
conditions by Mortgagor or any other named insured shall affect or limit the
obligation of the insurer to pay the amount of any loss sustained; and (ix)
contain such other provisions as Mortgagee may require. Mortgagor shall deliver
the original policies of insurance to Mortgagee, but Mortgagee shall under no
circumstance be deemed to have knowledge of the contents of such policies by
reason of its custody thereof. Mortgagor shall deliver to Mortgagee new or
renewal policies to replace expiring policies at least thirty (30) days before
their respective expiration dates. Each such new or renewal policy shall bear a
notation by the insurer or its authorized agent evidencing payment of the
required premium. If any policy shall be cancelled by the insurer, become void
by reason of any act(s) or omission(s) of Mortgagor or any other person or
entity or by reason of the impairment of the capital of the insurer thereunder,
or if for any reason in Mortgagee's sole discretion said policy shall become
unsatisfactory to Mortgagee, Mortgagor shall immediately procure new or
additional insurance satisfactory to Mortgagee. Mortgagors approval of any
insurance procured by Mortgagor shall not be construed, or relied upon by
Xxxxxxxxx, as a representation of the solvency of any insurer or the sufficiency
of any amount of insurance. If Mortgagor shall fail in a timely manner either to
keep in force
12
any insurance required under this Mortgage or to deliver to Mortgagee any policy
required hereunder, Mortgagee shall have the right, but shall not be obligated,
to remedy any such failure by the expenditure of moneys or otherwise, in which
event the provisions of Section 1.10 below shall be applicable.
Unearned Premiums. Mortgagor hereby irrevocably and unconditionally
assigns to Mortgagee the unearned premiums on all insurance policies furnished
hereunder and consents to the cancellation of such policies (and the refund of
all unearned premiums to Mortgagee) if Mortgagee purchases the Mortgaged
Property at foreclosure sale. Any such unearned premiums shall be applied
against sums due to Mortgagee under the Note or this Mortgage.
(a) Effect of Foreclosure . Upon a foreclosure of this Mortgage or
other transfer of title to the Mortgaged Property in full or partial payment of
the Loan, all right, title, and interest of Mortgagor in and to any insurance
policies then in force shall pass to the purchaser or grantee or other person
designated by the holder of the Note, and Xxxxxxxxx hereby irrevocably and
unconditionally appoints Mortgagee as Xxxxxxxxx's true and lawful attorney-in-
fact, coupled with an interest, in Xxxxxxxxx's name and stead, with full power
of substitution, to assign and transfer all such policies and the proceeds
thereof to such purchaser, grantee or other person.
(h) Casualty: Application of Insurance Proceeds. Mortgagor shall give
Mortgagee immediate notice of any damage or destruction affecting the Mortgaged
Property. Promptly thereafter Xxxxxxxxx shall make proof of loss and diligently
undertake (if necessary, by means of legal proceedings) to obtain payment of the
proceeds under applicable insurance policies, except that Mortgagee shall have
the right to join Mortgagor in adjusting any loss in excess of Two Hundred Fifty
Thousand Dollars ($250,000). All insurance proceeds shall be paid directly to
Mortgagee, and all insurance companies are hereby irrevocably and
unconditionally directed by Xxxxxxxxx to make payment for any covered loss to
Mortgagee. Whether or not repairs or restoration shall have been made, Mortgagee
shall have the right to apply such proceeds (i) first to reimbursing Mortgagee
for all costs incurred by it in the collection of such proceeds, (ii) second to
the prepayment of the principal of the Note, in whole or in part (to
installments in inverse order of maturity), all accrued and unpaid interest
thereon and Prepayment Charge, and (iii) third to the payment of such other
obligations and/or liabilities of Mortgagor under the Loan Documents as
Mortgagee shall determine. The balance, if any, of such proceeds shall be paid
to whoever may be legally entitled to the same.
(i) Application of Insurance Proceeds. Notwithstanding anything to the
contrary set forth in the preceding Section 1.9(h), if the Mortgaged Property is
damaged or destroyed and Mortgagee determines that all of the conditions
specified in this Section 1.9(i) have been satisfied, then Mortgagee shall apply
the proceeds of insurance (i) first to reimbursing itself for all costs incurred
by it in the collection of such proceeds and (ii) second to reimbursing
Mortgagor for such actual costs as shall have been incurred by Mortgagor in
restoring the Mortgaged Property and shall be approved by Mortgagee. Insurance
proceeds shall be applied to such restoration solely if (A) Mortgagee determines
that: (i) the Mortgaged Property is capable of being suitably restored in
accordance with applicable Requirements to the value, condition, character and
general utility existing prior to such damage or destruction, and, in any event,
to a
13
value at least 1.35 times the amount then outstanding under the Note; (ii)
sufficient funds are unconditionally available (from proceeds of insurance
and/or from funds of Mortgagor) to enable Mortgagor promptly to commence, and
thereafter diligently to prosecute to completion, such restoration; (iii)
Mortgagor is not in default or in breach of any obligations under any Loan
Document, no uncured Event of Default exists under any Loan Document and no
facts or circumstances exist that would constitute an Event of Default with the
passage of time or the giving of notice or both; and (iv) neither the validity,
enforceability nor priority of the lien of this Mortgage shall be adversely
affected; (B) Mortgagor has entered into a written agreement, satisfactory in
form and substance to Mortgagee, containing such conditions to disbursements as
are employed at the time by Mortgagee for construction loans; (C) Mortgagor has
delivered to Mortgagee such security as Mortgagee might have reasonably required
to assure completion of restoration in accordance with the standards specified
above; and (D) Mortgagor has complied with such further reasonable requirements
as Mortgagee might have specified.
1.10. Advances, Etc. by Mortgagee. If Mortgagor falls fully, faithfully
or punctually to perform or comply with any obligation set forth in or to be
performed or complied with pursuant to any Loan Document, then Mortgagee shall
have the right, but shall not be obligated, to perform or comply with the same
and make such advances therefor as, in Mortgagee's opinion, may be necessary or
appropriate, all for the account and at the expense of Mortgagor. To the extent
of all sums so advanced (including, without limitation, attorneys' fees and
disbursements), Mortgagee shall have a lien upon the Mortgaged Property which
shall be secured by this Mortgage. Mortgagor shall repay on demand all sums so
advanced on Xxxxxxxxx's behalf with interest computed at the Default Rate on
each such sum from the date advanced by Mortgagee until the date Mortgagee has
received repayment thereof. Mortgagee's exercise of its rights under this
Section 1.10 shall not be deemed to cure any circumstance that would otherwise
constitute an Event of Default or to impair any of Mortgagee's other rights or
remedies with respect thereto, and the obligations of Mortgagor under this
Section 1.10 shall pertain irrespective of whether the failure of Mortgagor
referred to in the initial sentence of this Section results in the existence of
an Event of Default. Mortgagor shall permit Mortgagee and its agents and
representatives to enter the Mortgaged Property at all reasonable times for the
purposes of (a) inspecting the same, (b) determining whether Mortgagor is in
compliance with all of Mortgagor's obligations under this Mortgage, (c)
performing or complying with, in Mortgagee's sole election, any one or more of
Mortgagor's obligations under the Loan Documents and (d) undertaking such other
acts as are consistent with the provisions of this Mortgage. No such entry shall
make Mortgagee a "mortgagee in possession," nor shall Mortgagee be liable for
inconvenience, annoyance, disturbance, loss of business or other damage arising
out of, or in connection with, actions taken by Mortgagee in good faith under
this Section 1.10.
1.11. Escrow Requirements. Notwithstanding anything to the contrary set
forth in any Loan Document, Mortgagor shall pay to Mortgagee, at the time of
each payment of a monthly installment of interest or principal under the Note, a
sum equal to one-twelfth of the estimated annual amount of all Impositions, and,
at Mortgagee's option following a default in the payment thereof, a sum equal to
one-twelfth of the annual amount of any other recurring charges with respect to
the Mortgaged Property (such as insurance premiums), so that at least one month
before the due date of each such charge
14
Mortgagee shall hold sufficient funds to pay each such charge in full. The
determination of the amount so payable and of the fractional part thereof to be
deposited with Mortgagee, so that the aggregate of such deposits shall be
sufficient for this purpose, shall be made by Mortgagee. Such amounts shall be
held by Mortgagee, but not in trust and without interest, and applied to the
payment of such charges in such order or priority as Mortgagee shall determine,
on or before the respective dates on which the same or any of them would become
delinquent. If at any time before the date payment of any such charge is due,
Mortgagee determines that the amounts then on deposit therefor shall be
insufficient for the payment of such obligation in full, then Mortgagor, within
ten days after demand, shall deposit the amount of the deficiency with
Mortgagee. This Section 1.11 does not affect any right or remedy of Mortgagee
under any provisions of this Mortgage or of any statute or rule of law to pay
any such amount and to add the amount so paid, together with interest at the
Default Rate, to the indebtedness secured by this Mortgage, as more fully
described in Section 1.10. Upon the occurrence of an Event of Default, Mortgagee
may, at its option and without notice to Mortgagor, apply any funds held
pursuant to this Section in payment of any of the obligations described above or
to any unpaid principal or interest under the Note in such order as Mortgagee
may determine.
1.12. Financial Reporting (a) Xxxxxxxxx's Books and Records. Mortgagor
shall keep proper books and records of account in accordance with the applicable
provisions of the Loan Agreement.
(b) Financial Statements. Mortgagor shall deliver to Mortgagee, and
shall cause the Guarantor(s), if any, to deliver to Mortgagee, such financial
statements and balance sheets as are required pursuant to the applicable
provisions of the Loan Agreement.
1.13. Maintenance and Operation of Mortgaged Property. Mortgagor shall
not commit any waste on the Mortgaged Property or make any change in the use of
the Mortgaged Property that would in Mortgagee's judgment in any way increase
the likelihood of fire or other hazard, increase any insurance rates for the
Mortgaged Property, or reduce the value or utility of the Mortgaged Property.
Mortgagor shall, at all times, maintain the Mortgaged Property in good and
efficient operating order and condition and shall promptly make, from time to
time, all necessary or desirable repairs, renewals, replacements, additions and
improvements thereto, whether structural or nonstructural, exterior or interior,
ordinary or extraordinary, foreseen or unforeseen. Mortgagor shall promptly
comply with all requirements necessary to preserve and extend any and all
rights, licenses, permits, privileges, franchises and concessions that apply to
the Mortgaged Property or have been (or subsequently are) granted to or
contracted for by Mortgagor in connection with any existing or proposed use of
the Mortgaged Property. The Improvements shall not be removed, demolished or
substantially altered without the prior written consent of Mortgagee. (If,
however, Article VI recites that this Mortgage is a construction mortgage or a
building loan mortgage, then Xxxxxxxxx's strict compliance with the Building
Loan Agreement shall not constitute a violation of the preceding sentence.) No
Chattels shall be removed without Mortgagee's prior written consent, unless
Xxxxxxxxx immediately makes appropriate replacements free of superior title,
liens and claims and of a quality and value at least equal to that of the
Chattels so
15
removed. Mortgagor shall cause all lessees and other persons and entities
occupying the Mortgaged Property to comply with the obligations imposed upon
Mortgagor in this Section 1.13.
1.14. Condemnation Mortgagor, immediately upon obtaining knowledge of
the institution of any proceeding for either (a) the condemnation of the 1.2
Mortgaged Property or any portion thereof, or (b) the change of grade or
widening of streets affecting or abutting the Premises shall notify Mortgagee of
the pendency of such proceeding. Mortgagee may participate in any such
proceeding, in its own name and/or as Xxxxxxxxx's attorney-in-fact, as
hereinbelow provided (with Mortgagee being represented in either case by
attorneys selected by Mortgagee, whose fees and expenses Mortgagor shall pay
upon demand), and, upon Mortgagee's request, Xxxxxxxxx shall deliver to
Mortgagee instruments which shall facilitate such participation. Mortgagor
hereby irrevocably and unconditionally (x) assigns to Mortgagee all of
Xxxxxxxxx's right, title and interest in and to any award or other compensation
payable pursuant to or in connection with any such proceeding, and agrees to pay
(and directs all Governmental Authorities to pay) to Mortgagee any such award or
other compensation, and (y) appoints Mortgagee as Xxxxxxxxx's true and lawful
attorney-in-fact coupled with an interest, in Xxxxxxxxx's name and stead, with
full power of substitution to commence, appear in and prosecute any such
proceeding, to settle or compromise any claim in connection therewith, to
collect and receive such award or other compensation and to take such other
actions as Mortgagee may determine are necessary or desirable. Mortgagee shall
be under no obligation to question the amount of any such award or other
compensation and may accept the same in the amount in which the same shall be
paid. The proceeds of any award or other compensation so received (including any
award for change of grade or widening of streets affecting, or abutting the
Premises) shall be applied (i) first to reimbursing Mortgagee for all costs
incurred by it in any such proceeding, (ii) second to the prepayment of the
principal of the Note, in whole or in part (to installments in inverse order of
maturity), all accrued and unpaid interest thereon at the rate of interest
provided therein and in the Loan Agreement, including any applicable Prepayment
Charge, and (iii) third to the payment of such other obligations and/or
liabilities of Mortgagor under the Loan Documents as Mortgagee shall determine.
The balance, if any, of such proceeds shall be payable to whoever may be legally
entitled to the same. Unless and until Mortgagee has actually received moneys
with respect to the subject matter of this Section 1.14 and applied such moneys
to reduction of the indebtedness secured by this Mortgage, Mortgagor shall
continue to make all payments provided for in the Loan Documents strictly in
accordance with the provisions thereof. Notwithstanding the provisions of the
immediately preceding paragraph, provided no default exists hereunder, Mortgagee
agrees to apply any such condemnation award proceeds received by it to the
reimbursement of Xxxxxxxxx's costs of restoring the Improvements. Advances of
condemnation award proceeds shall be made to Mortgagor from time to time in the
same manner and subject to the same conditions as advances of building loan
proceeds are made under the Loan Agreement, or if this Mortgage is not a
building loan mortgage, in accordance with Mortgagee's standard construction
lending practices, terms and conditions; amounts not required for such purposes
shall be applied, at Mortgagee's option, to the prepayment of the Note and to
interest accrued and unpaid thereon (at the rate of interest provided therein
regardless of the rate of interest payable on the award by the condemning
authority) in such order and proportions as Mortgagee may elect. In no
16
event shall Mortgagee be required to advance such proceeds to Mortgagor unless
Mortgagee shall have (i) received satisfactory evidence that the funding
expiration dates of the commitment, if any, for the permanent financing of the
Improvements have been extended for such period of time as is reasonably
necessary to complete said restoration and (11) reasonably determined that the
restoration of the Improvements to an economically viable architectural whole
can be completed by the then Maturity Date of the Note at a cost which does not
exceed the amount of available condemnation award proceeds or, in the event that
such proceeds are reasonably determined by Mortgagee to be inadequate, Mortgagee
shall have received from Mortgagor a cash deposit equal to the excess of said
estimated cost of restoration over the amount of said available proceeds. If the
conditions for the advance of condemnation award proceeds for restoration set
forth in clauses (1) and (ii) above are not satisfied within sixty (60) days of
Mortgagee's receipt thereof or if the actual restoration shall not have been
commenced within such period, Mortgagee shall have the option at any time
thereafter to apply such condemnation award proceeds to the payment of the Note
and to interest accrued and unpaid thereon (at the rate of interest provided
therein regardless of the rate of interest payable on the award by the
condemning authority) in such order and proportions as Mortgagee may elect.
1.15. Leasing of Mortgaged Property. (a) Existing Leases. Xxxxxxxxx
represents and warrants to Mortgagee that, as to each existing Lease, (i) the
Lease has been duly executed by the lessor and lessee thereunder, is in full
force and effect and is valid, binding and enforceable against each of said
parties in accordance with its terms; (ii) the copy of the Lease heretofore
delivered to Mortgagee by Xxxxxxxxx is a true, correct and complete copy of the
entire Lease; (iii) neither the lessor nor the lessee has failed to comply with
any obligation imposed upon such party thereunder; (iv) neither the Lease nor
any Rents payable thereunder have heretofore been sold, assigned, transferred or
set over by any instrument now in force, nor, unless indicated to the contrary
herein, is the Lease other than a direct lease from Mortgagor to a lessee; (v)
Mortgagor is entitled to receive and enjoy all Rents payable under the Lease;
(vi) no installment of Rents has been paid more than thirty (30) days prior to
the due date for such installment; (vii) the lessee does not have and has not
claimed any defense, abatement, deduction, offset, claim or counterclaim
affecting the payment of Rents or compliance with the lessee's other obligations
thereunder, and all Rents provided for in the Lease are currently being
collected free thereof and without any violation of any law or other
governmental regulation or requirement; (viii) the Lease contains no option to
buy or right of first refusal with respect to an offer to sell the Mortgaged
Property or any part thereof, (ix) Mortgagor has the sole and unconditional
right and power to sell, assign, transfer and set over the Lease to Mortgagee
and to confer upon Mortgagee the rights, interests, power and authority herein
granted and conferred; and (x) the Lease is, by its express terms,
unconditionally subject and subordinate to the lien of this Mortgage.
(b) Covenants by Xxxxxxxxx. Mortgagor covenants that, with respect to
each Lease, it will not, without Mortgagee's prior written consent: (i) accept
prepayment of any installment of Rents payable thereunder other than prepayment
of one month's Rents; (ii) amend or modify the Lease so as to reduce the
unexpired term thereof, decrease the amount of Rents payable thereunder or
otherwise diminish any obligation imposed therein upon the lessee; (iii) unless
the lessee has failed to comply with a material obligation imposed upon it in
the Lease, terminate, accept surrender of or permit
17
cancellation of the Lease if the unexpired term thereof is one year or longer;
(iv) modify, amend, extend, renew, terminate or accept the surrender of the
Lease if twenty-five percent (25%) or more of the rentable area of the Premises
is demised thereunder (any such Lease, a "Major Lease"); (v) pledge, mortgage,
assign or otherwise transfer the Lease or any interest of Mortgagor therein or
all or any portion of the Rents payable by the lessee thereunder as security for
any obligation; (vi) subordinate the Lease to any mortgage (other than this
Mortgage) or other encumbrance; (vii) sell, assign, transfer or set over the
Lease or any interest therein or Rents thereunder, except in connection with a
conveyance of the Premises and then only if expressly made subject to this
Mortgage and permitted by the express terms of the Mortgage;
(viii) consent to, waive or permit to continue any violation of any
obligation imposed upon the lessee under the Lease; or (ix) consent to or permit
the modification, amendment, termination or surrender of any guaranty of the
Lease. In addition, Mortgagor covenants that it will not, without Mortgagee's
prior written consent, (A) enter into a Major Lease; execute, consent to or
permit an assignment of a Major Lease; or consent to or permit the subletting,
in whole or in part, of any space leased pursuant to a Major Lease (Mortgagee's
consent with respect to the transactions referred to in this clause (A) not to
be unreasonably withheld or delayed); or (B) enter into any Lease (x) except for
actual occupancy by the lessee of all of the space demised thereunder, (y)
unless the Lease, by its express terms, (1) is unconditionally subject and
subordinate to the lien of this Mortgage and provides that, in the event
Mortgagee or its designee or nominee succeeds to the interest of Mortgagor under
such Lease, the lessee thereunder shall, at the option of Mortgagee or such
designee or nominee, promptly attorn to Mortgagee or such successor in interest
and recognize such party as lessor under the Lease and confirm such attornment
and recognition in writing, and (2) requires the lessee upon demand to duly
execute, acknowledge and deliver to Mortgagee a certificate (an "Estoppel
Certificate") with respect to the status of such Lease and such matters relating
to the status of such Lease as any mortgagee may reasonably require, or (z)
pursuant to which the lessee or any other person or entity shall have an option,
right of first refusal or other right with respect to the acquisition by it of
the Premises or any part thereof.
(c) Additional Covenants by Xxxxxxxxx. Mortgagor covenants that, with
respect to each Lease, it will: (i) fully, faithfully and punctually comply with
all of the obligations imposed upon the lessor thereunder; (ii) within five days
after request therefor by Mortgagee, (A) deliver to Mortgagee copies of executed
originals of all Leases and other instruments affecting the Mortgaged Property
and (B) request an Estoppel Certificate from any lessee designated by Mortgagee;
(iii) give prompt notice to Mortgagee of the failure by either the lessor or the
lessee to comply with any obligation imposed upon such party under the Lease,
with a copy of any notice of default or other communication with respect thereto
given by either the lessor or the lessee to the other; and (iv) enforce
compliance by the lessee with all obligations imposed upon it therein.
To the extent that any part of the Premises is located in the State of
New York, reference is hereby made to Section 291-f of the Real Property Law of
the State of New York for the purpose of obtaining for Mortgagee the benefits of
said Section in connection with this Mortgage.
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(d) List of Lessee. Mortgagor shall furnish to Mortgagee, within
fifteen days after Mortgagee's request, a written statement containing the names
and social security or taxpayer identification numbers of all lessees of the
Mortgaged Property or any portion thereof, the terms of their respective Leases,
the space occupied and the rentals payable and security deposited thereunder.
(e) Effect of Event of Default. Notwithstanding anything to the
contrary in this Mortgage, during the pendency of any uncured Event of Default,
Mortgagor shall not enter into any Lease, relocate any existing lessee, or make
or permit any modification, amendment, extension or assignment of an existing
Lease or the subletting, in whole or in part, of any space leased pursuant to an
existing, Lease without Mortgagee's prior written consent.
1.16. Casualty to Mortgaged Property. In the event of any damage or
destruction affecting the Mortgaged Property (other than damage or destruction
that, in Mortgagee's good faith judgment, renders the Mortgaged Property
unsuitable for restoration), Mortgagor shall promptly commence and thereafter
diligently prosecute to completion, at the sole cost and expense of Mortgagor,
in accordance with all applicable Requirements and in a good and workmanlike
manner the replacement, repair or restoration of the Mortgaged Property as
nearly as practicable to the value, condition, character and general utility
thereof immediately prior to such damage or destruction, whether or not the
insurance proceeds paid in respect of such damage or destruction shall be made
available to Mortgagor or, if made available, shall be sufficient for such
purpose. The lien of this Mortgage shall continue to apply to the Mortgaged
Property as replaced, repaired or restored.
1.17. Interest after Default. If an Event of Default shall occur under
this Mortgage, then all interest required to be paid by Mortgagor with respect
to the entire principal of the Note then outstanding and other components of the
indebtedness secured by the Loan Documents (including, without limitation,
expenses referred to in Article II of this Mortgage) shall be computed at the
Default Rate from and after the occurrence of the default that is the basis of
such Event of Default until the date that payment of such indebtedness in its
entirety is received by Mortgagee in accordance with the Loan Agreement.
1.18. Due on Transfer. Mortgagor shall not without the prior written
consent of the "Required Lenders" (as such term is defined in the Loan
Agreement) (a) sell, assign, lease, convey, mortgage, pledge, hypothecate, make
the subject of any security interest, exchange, subdivide or permit to be
divided into multiple condominium units, or in any other manner whatever
transfer or encumber all or part of, or any interest in, or any of the Rents
derived from, or control of, the Mortgaged Property, or suffer or permit any of
the foregoing to occur, whether by operation of law or otherwise; or (b) agree
in writing (whether on a conditional or unconditional basis) to do any of the
foregoing; or (c) effectuate or permit a reduction in the ownership interests of
Acadia Realty Trust in Mortgagor below 51 %; or (d) effectuate or permit a
closing of any public or private offering of ownership interests in Mortgagor;
or (e) effectuate or permit a transfer of the controlling interest in Mortgagor,
other than to an entity owned and controlled by Acadia Realty Trust. Other than
as set forth in the immediately preceding sentence, "transfer of the controlling
interest in Mortgagor" includes: (i) the sale,
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assignment, issuance, redemption, diminution or pledge, whether through a single
transaction or a series of transactions, of the direct or indirect controlling
ownership interest of Mortgagor; (ii) the modification of any organizational
documents of Mortgagor or of any entity that directly or indirectly controls
Mortgagor if the effect of such modification is to transfer ownership or control
of such entity; and (iii) the dissolution or termination, whether by operation
of law or otherwise, of Mortgagor or of any entity that directly or indirectly
controls Mortgagor. Nothing in this Section 1.18 shall, however, prohibit (y)
Leases that comply with this Mortgage and all other applicable Loan Documents,
or (z) if Mortgagor is a cooperative apartment corporation, the transfer and
mortgaging from time to time of Lease(s) to individual apartment units and the
appurtenant shares.
1.19. Costs of Litigation and Certain Proceedings. If any action or
proceeding of any kind (including, without limitation, any bankruptcy,
insolvency, arrangement, reorganization or other debtor relief proceeding or any
action arising under or in respect of any Lease) is commenced, or if there
occurs any other event or is created any circumstance that Mortgagee determines
might affect Mortgagor's or Mortgagee's interest in the Mortgaged Property, or
the validity, enforceability or priority of the lien of this Mortgage, or
Mortgagee's rights or remedies under any of the Loan Documents, then Mortgagee
may, without notice (Mortgagor expressly waiving any such notice) and at
Mortgagee's option, make such appearances, disburse such sums and take any such
other actions (including, without limitation, the commencement and prosecution
of any action against Mortgagor to enforce the terms of any Loan Document) as
Mortgagee deems necessary or desirable. If Mortgagee takes any action referred
to in the preceding sentence, then Mortgagor shall, upon demand by Mortgagee,
pay all reasonable fees and costs incurred by Mortgagee in connection therewith
(including, without limitation, attorneys' fees and expenses). Mortgagee's right
to receive any payment provided for hereinabove shall be deemed to have accrued
upon the commencement of the applicable action or proceeding and shall be
enforceable by Mortgagee whether or not same is prosecuted to judgment. At
Mortgagee's direction, any payment(s) that Mortgagor is obligated to make
pursuant to this Section 1.19 shall be made to third parties rather than to
Mortgagee.
1.20. Late Charge. If all or any portion of any payment required to be
made to Mortgagee (whether pursuant to the Note, the Loan Agreement or any other
Loan Document) is not received on or before the tenth (10th) day after the date
such payment is due (without reference to any grace period provided for in the
Loan Documents), a late charge of four percent (4%) of the amount so overdue
shall immediately be due to Mortgagee in accordance with Section 2.11 of the
Loan Agreement. At the option of Mortgagee, the charges specified in this
section may be deducted from the funds held by Mortgagee pursuant to Section
1.11.
1.21. Trust Fund. If the Mortgaged Property is situated in New York
State, this Mortgage is made subject to the trust fund provisions of Section 13
of the New York Lien Law, and Mortgagor covenants that it shall receive all
moneys and advances secured hereby and shall hold the right to receive such
advances as a trust fund to be applied first for the purpose of paying costs of
improvement before using any part of the same for any other purpose.
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1.22. Charges for Tax Searches, Etc. Mortgagor shall pay the reasonable
fees and costs (including attorneys' fees and expenses) incurred by Mortgagee in
obtaining tax searches and tax bills and of processing, or otherwise dealing
with, ownership transfers, insurance payments, releases, modifications,
prepayments, extensions, consents, assignments, reduction certificates,
satisfactions and other matters. At the option of Mortgagee, charges for these
items may be deducted from the funds held by Mortgagee pursuant to Section
1.11.
1.23. Prepayment. The Note may not be prepaid in whole or in part
except in accordance with the provisions of the Loan Agreement.
1.24. Restrictions Affecting Mortgaged Property. Mortgagor shall not
(a) initiate, join in, execute or consent to any change in any covenant,
condition, restriction, declaration, zoning ordinance, or other public or
private restriction limiting, defining or otherwise controlling construction on,
or use(s) of, all or any part of the Mortgaged Property (collectively,
"Restrictions"), (b) suffer or permit any building or other improvement
situated on land that is not part of the Mortgaged Property to rely on the
Premises in order to comply with any Requirement or (c) impair the integrity of
the Mortgaged Property as a zoning lot separate and apart from all other
premises. Mortgagor shall at all times strictly comply with all Restrictions.
1.25. Hazardous Substances. (a) Compliance With Environmental Laws.
Mortgagor shall at all times promptly comply, and shall cause all lessees and
other persons and entities which occupy or enter upon the Mortgaged Property at
all times promptly to comply, with all Environmental Laws insofar as same apply
to the Mortgaged Property. Without limiting the generality of the foregoing, (i)
Mortgagor shall cause all Environmental Authorizations to be maintained in full
force and effect, (ii) Mortgagor shall not cause, suffer or permit (or suffer or
permit any lessee or any other person or entity to cause, suffer or permit) any
Hazardous Substance to be used, received, handled, generated, manufactured,
produced, processed, treated, stored, released, placed, spilled, discharged,
disposed of or dispersed at, on under or about the Mortgaged Property except
pursuant to and in accordance with Environmental Laws, and (iii) if, other than
in accordance with the provisions of the immediately preceding clause (ii), any
Hazardous Substance(s) shall at any time be present at, on or under the
Mortgaged Property, Mortgagor, whether or not so directed by Mortgagee, shall
undertake the appropriate Remedial Work (as defined below) or take such other
action as shall be necessary in order to cause said Hazardous Substance(s)
promptly to be removed therefrom.
(b) If any lien shall be filed against, or imposed upon, the Mortgaged
Property with respect to non-compliance with any Environmental Law, Mortgagor
promptly shall (i) give Mortgagee notice thereof and (ii) cause such lien to be
discharged or bonded or otherwise secured to Mortgagee's satisfaction.
(c) Notice to Mortgagee. If Mortgagor shall (i) obtain knowledge of any
fact or circumstance which might render inaccurate any representation or
warranty contained in Section 3.14 below, Mortgagor shall promptly give
Mortgagee notice thereof, or (ii) receive any summons, citation, directive,
order, Notice or other communication from any Governmental Authority relating to
the application of any
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Environmental Law to the Mortgaged Property, Mortgagor shall promptly send a
copy of same to Mortgagee. In addition, if any Environmental Law requires that
an Environmental Condition be reported (as, for example, when a Release of
Hazardous Substances occurs), Mortgagor shall promptly make such report in
accordance with such Environmental Law and simultaneously provide Mortgagee with
all information contained therein, "Release" shall have the definition set forth
in Section 101(22) of the Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 6902 et seq.
(d) Representations. Etc. Mortgagor shall not take or omit to take (or
suffer or permit any lessee or other person or entity occupying the Mortgaged
Property to take or omit to take) any action which, if taken or omitted to be
taken, would render inaccurate any representation or warranty contained in
Section 3.14.
(e) Remedial Work. If Mortgagee, acting in its sole and absolute
discretion,
(i) determines that any investigation, site monitoring,
environmental audit and risk assessment, containment, clean-up,
encapsulation, removal, restoration or other remedial work of any kind
(any of the foregoing, "Remedial Work") is necessary or desirable in
connection with (A) the known or suspected presence at, on, under or
about the Mortgaged Property of any Hazardous Substance(s) or (B) the
requirements of any Environmental Law or the suspected violation of any
Environmental Law, or
(ii) determines that the condition of the Mortgaged Property
or the validity, priority or enforceability of the lien of this
Mortgage has been or may be impaired or in any way adversely affected
by reason of (A) any failure to comply with any Environmental Law as
the same pertains to the Mortgaged Property, (B) any other failure by
Mortgagor fully to comply with any obligation imposed upon Mortgagor in
this Section 1.25, or (C) the inaccuracy of any representation or
warranty contained in Section 3.14, then, in any such event, Mortgagor
shall, promptly after written demand by Mortgagee for performance
thereof, either (I) commence to perform and thereafter diligently
prosecute to completion the Remedial Work, or (II) take such other
action as Mortgagee may specify. All Remedial Work shall be performed
by contractors employed by Xxxxxxxxx and in accordance with plans that
first shall have been approved by an independent consultant employed by
Mortgagee but paid by Xxxxxxxxx.
For the purpose of making a determination pursuant to this Section 1.25(e), (i)
Mortgagor shall provide, upon twenty-four (24) hours advance notice, access to
Mortgagee and its agents and employees to the Mortgaged Property and all
applicable books and records (including, without limitation, those which pertain
to Authorizations), and (ii) Mortgagee shall be entitled, from time to time, in
addition to all of Mortgagee's other rights and remedies under this Mortgage, to
cause an environmental audit and risk assessment of the Mortgaged Property to be
conducted by an independent engineering firm or other environmental audit
manager designated by Mortgagee. In the event Mortgagor fails timely to commence
or diligently to prosecute to completion any Remedial Work or other action
required to be undertaken pursuant to this Section 1.25, Mortgagee may, but
shall not be required to (and without any liability or obligation by Mortgagee
to Mortgagor
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with respect thereto), arrange for same to be performed. All costs and expenses
incurred pursuant to, or with respect to the subject matter of, this Section
1.25 shall be borne by Xxxxxxxxx, and all moneys paid by Mortgagee and all costs
and expenses incurred by Mortgagee in connection with this Section 1.25,
together with interest thereon computed at the Default Rate, shall be repaid to
Mortgagee in accordance with the provisions of Section 1. 10 above.
Indemnification. Xxxxxxxxx shall defend and indemnify the Indemnified
Parties against, and shall save the Indemnified Parties harmless from, and shall
reimburse the Indemnified Parties with respect to, any and all Liabilities and
Expenses (as hereinafter defined) incurred by, imposed upon or asserted against
the Indemnified Parties or any one or more of them by reason of, or in
connection with:
(i) the presence, existence, use, handling, generation,
manufacture, production, processing, treatment, storage, release,
placement, spill, discharge, disposal or dispersal of any Hazardous
Substance(s) on, at or under the Mortgaged Property, or any threatened
occurrence of any of the foregoing, or any Remedial Work or other
action taken by Mortgagee or any of the Indemnified Parties with
respect to any of the foregoing pursuant to this Section 1.25; or
(ii) the inaccuracy of any representation or warranty made by
Mortgagor in Section 3.14 below; or
(iii) the failure of Mortgagor or anyone else to comply with
any Environmental Law(s) as same pertain to the Mortgaged Property or
any provision of the Loan Documents that pertains to the subject matter
of this Section 1.25.
For the purposes of this Section 1.25, "Liabilities and Expenses" shall mean (i)
all claims, demands, actions, causes of action, injuries, orders, losses,
liabilities (statutory or otherwise), obligations, damages (including, without
limitation, consequential damages), fines, penalties, costs and expenses in any
manner arising out of or relating to the subject matter of this Section 1.25
(including, without limitation, any of the foregoing relating to loss of life,
injury to persons, property or business, or damage to natural resources), and
(ii) any and all moneys payable to Mortgagee pursuant to this Section 1.25; as
used herein, "costs and expenses" shall, without limitation, include all fees
charged by and expenses of attorneys, accountants, engineers, contractors,
environmental specialists and other professional consultants and advisors with
respect to the subject matter of this Section 1.25 and the enforcement or
attempted enforcement of Mortgagee's rights under the Loan Documents with
respect to said subject matter (whether incurred in connection with litigation
or bankruptcy proceedings or negotiations with Xxxxxxxxx, lienors or other
parties in interest (such as receivers and trustees) or otherwise). Liabilities
and Expenses shall not be limited to the amount of the Loan. All amounts payable
to Mortgagee under this Section 1.25(f) shall be payable upon demand by
Mortgagee, together with interest at the Default Rate from the date of such
demand until the date of receipt by Mortgagee of full payment, and shall be
secured by this Mortgage. Mortgagor's obligations under this Section 1.25(f)
shall survive payment in full of the Note and the other Loan Documents and any
discharge, release or satisfaction of this Mortgage, any complete or partial
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foreclosure of this Mortgage and/or the delivery of one or more deeds in lieu of
any such foreclosure.
(g) Release. Xxxxxxxxx releases and discharges the Indemnified Parties
from, and relinquishes and waives, any and all claims, actions, causes of
action, demands and suits which Mortgagor now or hereafter may or shall have
against the Indemnified Parties or any one or more of them with respect to the
subject matter of this Section 1.25.
1.26. Further Assurances. Mortgagor shall, at Xxxxxxxxx's sole cost and
expense, promptly deliver to Mortgagee all Documents of Further Assurance and
undertake such further acts as Mortgagee shall from time to time request in
order to (a) confirm the lien of this Mortgage and the mortgaging to Mortgagee
of the Mortgaged Property (including, without limitation, all betterments,
renewals, extensions and replacements of, all substitutions for, and all
additions, accessions and appurtenances to any portion of the Mortgaged
Property), (b) confirm the security interests herein granted to Mortgagee in
portions of the Mortgaged Property and (c) satisfy any Requirement that
restricts, establishes conditions to, burdens, limits or otherwise affects
Mortgagee's exercise of Mortgagee's rights and remedies under, or with respect
to the subject matter of, this Mortgage. "Documents of Further Assurance" shall
include, without limitation, deeds, mortgages, security agreements, UCC-1s, UCC
continuation statements, assignments, title insurance updates, affidavits,
certificates, opinions of counsel, estoppel letters, insurance certificates and
consent letters. If Mortgagee certifies to Mortgagor that the Note has been
misplaced, lost or mutilated and that Mortgagee has not endorsed, assigned or
otherwise transferred the Note, Mortgagor shall deliver to Mortgagee an original
duplicate note in the same form as the Note, Mortgagee hereby agreeing to
indemnify Mortgagor against any loss or expense incurred by Xxxxxxxxx as a
consequence of Xxxxxxxxx's having delivered such duplicate note. All
documentation to be delivered by Mortgagor pursuant to this Section 1.26 shall
be in form and substance reasonably satisfactory to Mortgagee.
1.27. Notice to Mortgage. Mortgagor shall give notice to Mortgagee
promptly upon the occurrence of (a) any Event of Default or any fact, event or
circumstance that after notice or passage of time or both would constitute an
Event of Default; (b) any litigation, proceeding or investigation commenced by,
or that involves, any Governmental Authority that might result in the impairment
of Mortgagee's security for the Loan or any other fact, event or circumstance
that might result in the impairment of such security; and (c) any material
adverse change in the operations or financial or other condition of the
Mortgaged Property or any portion thereof.
1.28. Set-O Mortgagor, to further secure Xxxxxxxxx's full, faithful and
punctual compliance with the obligations imposed upon it in the Loan Documents,
hereby (i) pledges and grants to Mortgagee, and grants to Mortgagee a security
interest in and to, any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by Mortgagee to or for the credit or account of Mortgagor (collectively,
"Deposits") and (ii) irrevocably authorizes and directs Mortgagee at any time
and from time to time upon the occurrence of an Event of Default, without notice
to Mortgagor (any such notice being expressly waived by Xxxxxxxxx) and to the
fullest extent permitted by law, to set off and apply any Deposits
24
against any and all obligations of Mortgagor now or hereafter existing under the
Loan Documents, irrespective of whether or not Mortgagee shall have made any
demand under the Loan Documents and although such obligations may be contingent
or unmatured. From and after the date of the occurrence of any Event of Default,
Mortgagee shall have dominion and control over such Deposits and shall have the
sole ability to make withdrawals with respect to such Deposits. The rights of
Mortgagee under this section are in addition to such other rights and remedies
(including, without limitation, other ID rights of set-off) as may be available
to Mortgagee under the Loan Documents, at law or in equity.
1.29. Obligations Secured. Whenever in this Mortgage or any other
I Loan Document it is stated that Xxxxxxxxx shall be obligated to pay or repay
any moneys to Mortgagee or to any third party or to reimburse Mortgagee in
respect of costs and expenses incurred by Mortgagee or anyone employed by,
or acting on behalf of, Mortgagee, then any such payment, repayment or
reimbursement obligation shall be deemed to be part of the indebtedness that is
secured by this Mortgage.
1.30. Year 2000 Capability. Xxxxxxxxx represents, warrants and
covenants that it (a) is aware of the risks associated with the date change from
December 31, 1999 to January 1, 2000; (b) has assessed the related processing
capabilities of its computer and other systems (the "Systems", as defined
below); (c) has taken, and shall continue to take, if necessary, appropriate
steps to prepare its Systems for Year 2000 capability, i.e., to operate in a
manner such that on and after January 1, 2000 the Systems will correctly
interpret and manipulate all dates, data, information and records, so as to
avoid errors in processing or failures to operate properly because of their
inability to recognize accurately the Year 2000 or subsequent dates; and (d) is
taking or has taken, and shall continue to take, if necessary, appropriate steps
to verify that the Systems of its material customers, clients, suppliers and
counterparties are able to meet the requirements of the Year 2000 date change.
Xxxxxxxxx agrees that, at Mortgagee's request, it will provide Mortgagee with
written assurance (with appropriate documentation) of its Year 2000-related
Systems capability. The term "Systems" as used herein shall mean all (i)
computer hardware, computer software, and data processing systems; (ii) HVAC and
other building or facilities systems and equipment containing embedded
microchips; and (iii) other information technology-based systems, that, in the
case of each of (i), (ii) and (iii) are material to the business operations or
financial condition of Mortgagor.
ARTICLE II
Events of Default and Remedies
2.1. Definition of Event of Default. For all purposes of the Loan
Documents, the occurrence of any one or more of the following shall constitute
an Event of Default:
(a) Nonpayment of Note. If Xxxxxxxxx fails to make any payment
required under the Note or the Loan Agreement when and as the same
shall become due and payable, and such failure continues for ten (10)
days, provided,
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however, that said ten (10)-day grace period shall not apply to the payment of
any moneys required to be paid by Mortgagor upon the Maturity Date or Extended
Maturity Date, if applicable (or sooner, if applicable, by reason of
acceleration); or
(b) Liens. If any proceeding is commenced to foreclose a lien upon the
Mortgaged Property or any portion thereof or if any other action is taken to
enforce any such lien and, within twenty days (20) after the commencement of
such proceeding or taking of such action, said lien is not discharged of record
by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise; or
(c) Action by Governmental Authority. If any Governmental Authority
imposes a fine or penalty with respect to Xxxxxxxxx's failure to pay an
Imposition in a timely manner or if, following Xxxxxxxxx's election to contest
the amount or validity of any Imposition, Xxxxxxxxx fails to duly perform or
comply with any provision set forth in Section 1.7(c); or
(d) Failure to Comply with Section 1.9. If Mortgagor fails fully,
faithfully or punctually to perform or comply with any obligation on the part of
Mortgagor to be performed or complied with pursuant to Section 1.9; or
(e) Failure to Give Notice. If Mortgagor fails to give Mortgagee, when
and as required, any notice required to be given to Mortgagee by Mortgagor
pursuant to this Mortgage or within ten (10) days of Mortgagor's becoming aware
of the need to provide such notice if no grace period for the giving of such
notice is otherwise provided for in this Mortgage; or
(f) Nonpayment of Certain Charges. If Mortgagor fails to make any
payment required by Section 1.4 (other than a payment to which paragraph (a)
applies), 1.7(a) or 1.11, and such failure continues for twenty (20) days; or
(g) Default in Performance of Certain Obligations. If Mortgagor fails
fully, faithfully or punctually to perform or comply with any obligation on the
part of Mortgagor to be performed or complied with pursuant to Section 1.2, 1.3,
1.8, 1.10, 1.12, 1.13, 1.20 or 1.22, and such failure continues for thirty (30)
days after Mortgagee has given Mortgagor written notice thereof; or
(h) Other Failure to Perform. If Mortgagor fails fully, faithfully or
punctually perform or comply with any other obligation on the part of Mortgagor
to be performed or complied with pursuant to any Loan Document including,
without limitation, the Note and the Loan Agreement (except as described in the
preceding paragraphs (a) through (g)) and such failure continues for the lesser
of (i) thirty (30) days after Mortgagee has given Mortgagor written notice
thereof (unless such default cannot with due diligence be cured within thirty
(30) days but can be cured within a reasonable period, in which case no Event of
Default shall be deemed to exist so long as Mortgagor shall have commenced to
cure the default within thirty (30) days after receipt of notice, and thereafter
diligently and continuously prosecutes such cure to completion) or (ii) such
period of time, if any, as is set forth with respect to such failure in any
other Loan Document; or
26
(i) Misrepresentation. Etc. If any warranty, representation or other
statement made (i) by or on behalf of Mortgagor or by any Principal of Mortgagor
in, pursuant to, or in connection with any Loan Document including, without
limitation, the Note and the Loan Agreement, or in connection with any other
loan made by Mortgagee to Mortgagor or any Principal of Mortgagor or any
borrower of which a Principal of Mortgagor is a principal, or (ill) by or on
behalf of any Guarantor in or pursuant to any guaranty delivered to Mortgagee in
connection with the Loan is materially incorrect; or
Nonpayment of Debts. If Mortgagor shall be generally not paying
Mortgagor's debts as they become due; or
(k) Voluntary Adverse Financial Events. If Mortgagor (i) shall make an
assignment for the benefit of creditors, or (ii) shall institute any proceeding
seeking (A) relief on its behalf as debtor, or (B) adjudication of Mortgagor as
a bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding
up, liquidation, dissolution or composition of Mortgagor or Mortgagor's debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or (D) appointment of a receiver, trustee, conservator, custodian or
other similar official for Mortgagor or the Mortgaged Property or any part
thereof or of any other substantial part of Mortgagor's property, or (iii) shall
consent by answer or otherwise to the institution of any such proceeding against
Mortgagor, or (iv) shall (if a corporation or other entity having directors or
shareholders) take by itself, or by its directors or shareholders, any action
for the purpose of any of the foregoing; or
(l) Involuntary Adverse Financial Events. If any proceeding is
instituted against Xxxxxxxxx seeking (i) to have an order for relief entered
against Mortgagor as debtor or to adjudicate Mortgagor a bankrupt or insolvent,
or (ii) reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution or composition of Mortgagor or Xxxxxxxxx's debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
(iii) appointment of a receiver, trustee, conservator, custodian or other
similar official for Mortgagor or the Mortgaged Property or any portion thereof
or any other substantial part of Mortgagor's property, that either (A) results,
without Xxxxxxxxx's consent or acquiescence, in any such entry of an order for
relief, adjudication of bankruptcy or insolvency or issuance or entry of any
other order having a similar effect or (B) remains undismissed for ninety (90)
days; or
(m) Appointment of Trustee. Etc, If a trustee, receiver, conservator,
custodian or other similar official is appointed, without the consent or
acquiescence of Mortgagor, for Mortgagor or the Mortgaged Property or any
portion thereof or any other substantial part of Xxxxxxxxx's property, which
appointment is not vacated within ninety (90) days; or
(n) Changes in Mortgage Taxation. If subsequent to the date of this
Mortgage the law of the state in which the Premises are situated is changed to
Mortgagee's detriment by statutory enactment, judicial decision, regulation or
otherwise, so as (i) to deduct from the value of land for the purpose of
taxation
27
(for state, county, municipal or other purpose) any lien or charge thereon, or
(ii) to chancre the taxation of deeds of trust, mortgages or debts secured by
land or the manner of collecting any such taxation; or
(o) Final Judgment. If a final judgment is entered against Xxxxxxxxx,
and, within sixty days after its entry, such judgment has not been discharged or
execution thereof stayed pending appeal, or if, within sixty days after the
expiration of any such stay, such judgment has not been discharged; or
(p) Certain Taxes. If it is or becomes illegal for Mortgagor to pay any
tax required to be paid by Mortgagor pursuant to Section 1.07 or if Mortgagor's
payment of such tax would violate any Requirement; or
(q) Prohibited Transfer. If a transaction prohibited by Section 1.18
occurs without the prior written consent of the "Required Lenders"; or
(r) Other Instruments. If Mortgagor fails to perform, comply with or
discharge any agreement, obligation or undertaking created or agreed to by
Mortgagor in any Loan Document and any applicable cure periods expire; if any
Principal of Mortgagor or Guarantor fails to perform, comply with or discharge
any agreement, obligation or undertaking created or agreed to by such Principal
of Mortgagor or Guarantor in any Loan Document and any applicable cure periods
expire; or if any event or circumstance described in clause 1.7(c)(iii) occurs;
or
(s) Leases. If Mortgagor leases all or any part of the Mortgaged
Property in violation of Section 1.15 of this Mortgage or effectuates any
change with respect to a Lease in violation of said section; or
(t) Management of Mortgaged Property. If the Mortgaged Property 0
ceases to be managed by Mortgagor or such other person or entity as may be
approved by Mortgagee in writing; or
(u) Guarantor. If any act, circumstance or event described in
paragraphs (k) through (n) or (p) is taken by or occurs with respect to any
Guarantor or the property of any such person or entity (each of the foregoing,
an "Insolvency Event"); or
(v) Other Mortgage. If any fact or circumstance occurs that would
permit the holder of any other mortgage encumbering the Mortgaged Property or
any part thereof to foreclose or exercise any other remedy(ies) available under
such other mortgage. If such other mortgage provides for a grace period and
opportunity to cure, an Event of Default shall not be deemed to have occurred
under this paragraph; or
(w) unless and until such grace period has expired. Concurrently with
the expiration of such grace period, an Event of Default shall be deemed to have
occurred under this Mortgage, and Mortgagor shall have no right under this
Mortgage to receive notice of or any opportunity to cure such Event of Default.
Nothing in this paragraph (w) shall limit in any way Mortgagor's obligations
under this Mortgage or Mortgagee's rights and remedies under this Mortgage.
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2.2. Effect of Event of Default. Upon and after the occurrence of an
Event of Default, Mortgagee shall be entitled to all of the rights and remedies
set forth below. In those instances in which Mortgagee is entitled to take
action with respect to the subject matter of this Article II, such action may be
taken by Mortgagee personally or on Xxxxxxxxx's behalf by its agents or
attorneys and, in any such instance, with or without entry upon the Mortgaged
Property. All expenses incurred and advances made by Mortgagee or by any such
agents or attorneys in taking any such action shall be deemed to be for the
account of Mortgagor and shall be repaid to Mortgagee together with interest
thereon computed at the Default Rate from the date each such expense is incurred
or advance is made until the date Mortgagee has received repayment in its
entirety thereof.
(a) Automatic Acceleration of Note. If the Event of Default is one
described in paragraphs (1), (in) or (n) of Section 2.1, then the entire
principal of the Note then outstanding, all accrued and unpaid interest thereon,
Prepayment Charge and all other indebtedness secured by this Mortgage shall
automatically become immediately due and payable.
(b) Optional Acceleration of Note. If the Event of Default is one
described in any paragraph of Section 2.1 other than those paragraphs of Section
2.1 referred to in the preceding paragraph (a), then Mortgagee, by written
notice to Xxxxxxxxx, may declare the entire principal of the Note then
outstanding, all accrued and unpaid interest thereon, Prepayment Charge and all
other indebtedness secured hereby to be due and payable immediately. Upon any
such declaration the same shall become immediately due and payable,
notwithstanding anything to the contrary in any Loan Document.
(c) Entry upon Mortgaged Property. Without notice to Mortgagor or
anyone else, Mortgagee may (i) enter into and upon the Mortgaged Property and
take possession thereof by force, summary proceeding, ejectment or otherwise and
exclude therefrom Mortgagor, Mortgagor's employees and agents and all other
persons, (ii) hold, use, operate, manage, maintain and control the Mortgaged
Property and conduct the business thereof on such terms as Mortgagee shall deem
proper, (iii) collect and receive all Rents including, without limitation, those
past due (instituting, at Mortgagee's election, proceedings in furtherance of
such collection), (iv) apply the Rents as hereinafter provided, (v) amend,
modify and terminate then existing Leases of the Mortgaged Property or any
portion thereof and, in the name of Mortgagor, enter into Leases of all or any
portion of the Mortgaged Property, (vi) complete the construction of the
Improvements, and in the course of such completion make such changes in the
contemplated Improvements as Mortgagee may deem desirable, (vii) make all
necessary or proper repairs, renewals and replacements and such alterations,
additions, improvements and betterments as Mortgagee may deem advisable, and
(viii) generally do everything as fully and effectually as if Mortgagee were the
absolute owner of the Mortgaged Property. Mortgagee shall apply the Rents (A)
first, to paying the costs and expenses incurred by Mortgagee in taking actions
pursuant to this paragraph (including, without limitation, cost and expenses
incurred in furtherance of the rights, remedies and powers specifically set
forth above and those incurred in order to insure the Mortgaged Property, pay
Impositions and pay reasonable compensation for the services of
29
Mortgagee and its employees, attorneys and agents), and (B) second, to payment
of the principal of the Note then outstanding, all accrued but unpaid interest
thereon, at the rate of interest provided therein and in the Loan Agreement,
including any applicable Prepayment Charge, and all other indebtedness secured
by this Mortgage or by any other Loan Document. Mortgagor hereby consents to the
exercise by Mortgagee of the rights, remedies and powers conferred upon
Mortgagee in this paragraph, provided, however, that (x) Mortgagee shall under
no circumstances have any obligation to undertake any act or do anything
pursuant to this paragraph and (y) no entry in or upon the Mortgaged Property or
taking possession thereof or any other action or omission of Mortgagee hereunder
shall make Mortgagee a "mortgagee in possession" (unless Mortgagee expressly
elects such status in writing) or create any liability on the part of Mortgagee
to Mortgagor or to any lessee or other party holding under or claiming through
Mortgagor (whether for trespass, eviction, inconvenience, annoyance,
disturbance, loss of business or otherwise) except if attributable to the
willful misconduct or bad faith of Mortgagee. In furtherance of all of the
foregoing, Xxxxxxxxx hereby irrevocably and unconditionally appoints Mortgagee
as Xxxxxxxxx's true and lawful attorney-in-fact, coupled with an interest, in
Xxxxxxxxx's name and stead, with full power of substitution to act pursuant to
the provisions of this paragraph.
(d) Sale of Mortgaged Property. Mortgagee may sell the Mortgaged
Property and all estate, right, title and interest, claim and demand therein,
and right of redemption thereof, at one or more sales as an entity or in
parcels, in such manner, at such time and place, for such price and upon such
other terms and after such notice thereof as Mortgagee may in its sole
discretion determine, or as may be required by law. Mortgagee may from time to
time adjourn any such sale by announcement at the time and place appointed for
such sale, as same may previously have been adjourned.
(e) Foreclosure. Mortgagee may institute proceedings for the complete
or partial foreclosure of this Mortgage.
(f) Rights as Secured Party. Mortgagee may exercise such rights and
remedies, whether at law, in equity or by statute (including, without
limitation, the Uniform Commercial Code), as are available to Mortgagee as a
secured party under this Mortgage with respect to the Chattels, including,
without limitation, the right to take possession of the Chattels, to maintain
and preserve the same and to cause any of the Chattels to be sold at any one or
more public or private sales as permitted by applicable law. Any person,
including both Mortgagee and Mortgagor, shall be eligible to purchase any
portion or all of the Chattels thus offered for sale. Any and all expenses
incurred by Mortgagee in connection with taking possession of the Chattels and
maintaining and preserving the same and otherwise preparing for sale, as well as
in the conduct of the sale, such as the fees and expenses of Mortgagee's
attorneys, shall be deemed to be for the account of Mortgagor and shall be
repaid to Mortgagee. Mortgagor, upon Mortgagee's demand, shall assemble the
Chattels and make them available to Mortgagee at such place(s) as Mortgagee may
designate. Mortgagee shall give Mortgagor at least five days' prior written
notice of the time and place of any public sale or other disposition of the
Chattels or of the time at or after which Mortgagee intends to make any private
sale or other disposition (any such notice for all purposes to be deemed
reasonable notice to Mortgagor).
30
(g) Other Remedies. Supplementing the foregoing provisions of this
Section 2.2, Mortgagee may take such other steps as Mortgagee may elect to
protect and enforce its rights, whether by action, suit or proceeding in equity
or at law for the specific performance of any covenant, condition or agreement
set forth in the Note, this Mortgage or in any other Loan Document, or in aid of
the execution of any power herein granted to Mortgagee, or for any foreclosure
hereunder, or for the enforcement of any other appropriate legal or equitable
right or remedy.
2.3. Foreclosure Sale Implementation. (a) Deeds, Etc. To effectuate any
sale(s) made under or by virtue of this Article 11, whether made under the power
of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale (any such sale, an "Article II
Sale"), Mortgagor, Mortgagee, or an officer of any court empowered to do so
shall execute and deliver (i) to the accepted purchaser or purchasers assigning
and transferring all estate, right, title, interest, claim and demand in and to
the property and rights sold and (ii) to the appropriate Governmental Authority
any affidavit(s) or other instrument(s) required pursuant to any Requirement(s).
In furtherance of such purpose, Xxxxxxxxx hereby irrevocably and unconditionally
appoints Mortgagee as Xxxxxxxxx's true and lawful attorney-in-fact, coupled with
an interest, in Xxxxxxxxx's name and stead, with full power of substitution, to
execute and deliver such instrument(s). Mortgagor hereby ratifies and confirms
all that Mortgagee, in its capacity as said attorney-in-fact, or such
substitute(s) shall lawfully do pursuant to this Section 2.3(a). Notwithstanding
the foregoing Mortgagor, if so requested by Mortgagee or any purchaser, shall
ratify and confirm any such sale or sales by executing and delivering to
Mortgagee or to such purchaser all such instruments as may be designated by the
requesting party. Any such sale or sales shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever, whether at law or in
equity, of Mortgagor in and to the property and rights so sold, and shall be a
perpetual bar, both at law and in equity, against Mortgagor and against any and
all persons claiming or who may claim by, from, through or under Mortgagor.
(b) Acceleration upon Sale. In the event of any Article II Sale
(whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale), then,
notwithstanding anything to the contrary set forth in any Loan Document, the
entire principal of the Note than outstanding, all accrued and unpaid interest
thereon, at the rate of interest provided therein and in the Loan Agreement,
including any applicable Prepayment Charge, and all other indebtedness secured
by this Mortgage shall immediately become due and payable.
(c) Application of Proceeds. The proceeds of any Article II Sale,
together with any other sums that Mortgagee may then hold under any provision of
this Mortgage, shall be applied in the following order of priority:
(i) Sale Costs. Etc, To the payment of the costs and expenses
incurred in connection with such sale, including, without limitation,
the costs and expenses (A) incurred by Mortgagee prior thereto in
taking possession of, and maintaining and preserving, the Mortgaged
Property or any portion thereof and paying Impositions with respect
thereto (other than Impositions subject to which the Mortgaged Property
might have been sold), (B) of any judicial proceedings wherein or
pursuant to which such sale might have been made, (C) of any
31
receiver(s) appointed with respect to the Mortgaged Property or any
portion thereof, (D) incurred in order to comply with Requirements
applicable to such sale and (E) of paying reasonable compensation to
Mortgagee, its employees, agents and attorneys.
(ii) Principal. Prepayment Charge and Interest. To the payment
of the entire principal of the Note then outstanding, all accrued and
unpaid interest thereon (whether accruing prior or subsequent to the
date of default) at the rate of interest provided therein and in the
Loan Agreement, including any applicable Prepayment Charge.
(iii) Other Sums Due. To the payment of any other sums
required to be paid by Mortgagor pursuant to any provision of any Loan
Document.
(iv) Application of Surplus. To the payment of the surplus, if
any, to whosoever may be lawfully entitled to receive the same.
(d) Bids by Mortgage. At any Article II Sale, Mortgagee may bid for
and acquire the Mortgaged Property or any part thereof and in lieu of paying
cash therefor may make settlement for the purchase price by crediting upon the
indebtedness of Mortgagor secured by this Mortgage the net sales price after
deducting therefrom the costs and expenses of the sale and all other costs or
expenses attributable to Mortgagor's default under this Mortgage and Mortgagee's
exercise of its rights, powers and remedies under this Mortgage.
2.4. Collection of Debt. (a) Payments Due upon Acceleration. In the
event that the indebtedness secured by this Mortgage shall become due and
payable in accordance with the provisions of this Mortgage and Mortgagor shall
fail forthwith to pay such amounts to Mortgagee, Mortgagee shall be entitled and
empowered to institute actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such actions or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against Xxxxxxxxx and collect, out of the Mortgaged Property and
other property of Mortgagor wherever situated, in any manner provided by law,
moneys adjudged or decreed to be payable.
(b) Effect of Foreclosure. Etc, Mortgagee shall be entitled to recover
judgment as aforesaid either before or after or during the pendency of any
proceedings for the enforcement of the provisions of this Mortgage; and the
right of Mortgagee to recover such judgment shall not be affected by any entry
or sale hereunder, or by the exercise of any other right, power or remedy for
the enforcement of the provisions of this Mortgage or the foreclosure of the
lien hereof, and in the event of a sale of the Mortgaged Property and of the
application of the proceeds of sale, as in this Mortgage provided, to the
payment of the debt hereby secured, Mortgagee shall be entitled to enforce
payment of, and to receive all amounts then remaining due and unpaid upon, the
Note and to enforce payment of all other charges, payments and costs due under
this Mortgage, and shall be entitled to recover judgment for any portion of the
debt remaining unpaid, with interest at the maximum rate permitted by law. If
any case shall be commenced against Mortgagor under any applicable insolvency,
bankruptcy or any similar law now or hereafter or any proceedings for
Mortgagor's reorganization or involving the liquidation
32
of Mortgagor's assets, then Mortgagee shall be entitled to prove the whole
amount of principal, Prepayment Charge and interest due upon the Note to the
full amount thereof, and all other payments, charges and costs due under this
Mortgage (including, without limitation, the fees and expenses of Mortgagee's
attorneys in connection with such proceedings), without deducting therefrom any
proceeds obtained from the sale of the whole or any part of the Mortgaged
Property, provided, however, that in no case shall Mortgagee receive a greater
amount than such principal, Prepayment Charge and interest and such other
payments, charges and costs from the aggregate amount of the proceeds of the
sale of the Mortgaged Property and the distribution from the estate of
Mortgagor.
(c) Effect of Judgment. No recovery of any judgment by Mortgagee and no
levy of any execution under any judgment upon the Mortgaged Property or any part
thereof or upon any other property of Mortgagor shall affect in any manner or to
any extent the lien of this Mortgage upon the remaining Mortgaged Property not
recovered or levied against or executed upon or any part thereof or any liens,
rights, powers or remedies of Mortgagee hereunder, but such liens, rights,
powers and remedies of Mortgagee shall continue unimpaired as before.
(d) Application of Sums Collected. Any moneys thus collected by
Mortgagee under this Section 2.4 shall be applied by Mortgagee in accordance
with the provisions of paragraph (c) of Section 2.3.
(e) Legal Proceedings. Xxxxxxxxx unconditionally and irrevocably agrees
that any action or proceeding against Mortgagor with respect to the Loan or for
the recognition or enforcement of any judgment rendered in any such action or
proceeding may be brought in the United States Courts for any District in which
the Mortgaged Property is situated or in the courts of the State in which the
Mortgaged Property is situated, as Mortgagee may elect, and by executing and
delivering this Mortgage, Xxxxxxxxx unconditionally and irrevocably accepts and
submits to the non-exclusive jurisdiction of each of the aforesaid courts in
person generally with respect to any such action or proceeding for itself and in
respect of its properties. Xxxxxxxxx further agrees that final judgment against
it in any action or proceeding shall be conclusive and may be enforced in any
other jurisdiction, by suit on the judgment, a certified or exemplified copy of
which shall be conclusive evidence of the fact and of the amount of Xxxxxxxxx's
indebtedness.
XXXXXXXXX AND MORTGAGEE WAIVE THE RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY ACTION, SUIT OR PROCEEDING (INCLUDING ANY AND ALL COUNTERCLAIMS
THERETO) THAT DIRECTLY OR INDIRECTLY RELATES TO THE SUBJECT MATTER OF THIS
MORTGAGE. XXXXXXXXX HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION
WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT ON THIS MORTGAGE BY THE MORTGAGEE
ANY AND EVERY RIGHT IT MAY HAVE TO (I) INTERPOSE ANY COUNTERCLAIM THEREIN (OTHER
THAN COMPULSORY COUNTERCLAIMS) AND (II) HAVE THE SAME CONSOLIDATED WITH ANY
OTHER OR SEPARATE SUIT, ACTION OR
33
PROCEEDING. NOTHING HEREIN CONTAINED SHALL PREVENT OR PROHIBIT MORTGAGOR FROM
INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST MORTGAGEE WITH RESPECT TO
ANY ASSERTED CLAIM.
2.5. Appointment of Receiver. After the occurrence of any Event of
Default and during its continuance, whether incidental to any proceedings to
foreclose this Mortgage or to enforce the specific performance hereof or to any
other judicial proceeding to enforce any right of Mortgagee, or otherwise,
Mortgagee shall be entitled, as a matter of right, without the giving of notice
to any other party and without regard to the adequacy or inadequacy of any
security for the Mortgage indebtedness, either before or after declaring the
unpaid principal of the Note to be due and payable, to the appointment of a
receiver or receivers of the Mortgaged Property and of all the Rents thereof
Xxxxxxxxx hereby irrevocably and unconditionally consents to the appointment of
such receiver or receivers (and to the exercise by such receiver or receivers of
such powers as may be requested by Mortgagee of the court that is empowered to
make such appointment), waives any and all defenses to such appointment and
agrees not to oppose Xxxxxxxxx's application therefor.
2.6. Possession by Mortgagee. Notwithstanding the appointment of any
receiver, liquidator or trustee of Mortgagor, or of any of Mortgagor's property,
or of the Mortgaged Property or any part thereof, Mortgagee shall be entitled to
retain possession and control of all property now or hereafter held under this
Mortgage.
2.7. Remedies Cumulative. No right or remedy of Mortgagee is intended
to be exclusive of any other right or remedy specified herein, in any other Loan
Document or available to Mortgagee at law or in equity. All such rights and
remedies shall be cumulative and concurrent and, at Mortgagee's option, may be
pursued singularly, successively or together and may be exercised as often as
occasion therefor shall arise. No delay or failure of Mortgagee to exercise any
right, power or remedy hereunder or under any other Loan Document shall impair
any such right, power or remedy or shall be construed to be a waiver thereof or
of any Event of Default, and Mortgagor shall not thereby be relieved of its
obligations. Mortgagee shall be deemed to have waived any such right, power or
remedy only if such waiver is expressly set forth in a written instrument duly
executed by an authorized representative of Mortgagee. No waiver of any breach
shall constitute a waiver of any other then existing or subsequent breach.
2.8. Right to Withdraw Proceeding. Etc. Any action, suit or
proceeding brought by Mortgagee pursuant to any of the terms of this Mortgage or
otherwise and any claim made by Mortgagee hereunder may be compromised, settled,
withdrawn, abandoned or otherwise dealt with by Mortgagee without any notice to,
agreement or approval of, or consent by, Xxxxxxxxx and without any liability of
Mortgagee to Mortgagor.
2.9. Waiver. To the fullest extent permitted by law and with full
awareness of the consequences thereof, Xxxxxxxxx hereby unconditionally and
irrevocably (a) waives and relinquishes the benefit of, and releases all rights
of Mortgagor under, all laws now or hereafter in force providing for any
appraisement or valuation before sale of the Mortgaged Property or any portion
thereof, any stay of
34
execution or extension of the time for the enforcement of the collection of the
indebtedness secured by this Mortgage, any extension of a period of redemption
from any sale in furtherance of the collection of said indebtedness, and any
marshalling of the assets of Mortgagor (including, without limitation, the
Mortgaged Property), and (b) agrees that Xxxxxxxxx shall not at any time insist
upon, plead, claim or take the benefit or advantage of any law now or hereafter
in force providing for any of the foregoing. In addition, to the fullest extent
permitted by law and with full awareness of the consequences thereof, Xxxxxxxxx
hereby waives and relinquishes the right to assert any defense based upon laws
applicable to sureties and guarantors.
2.10. Use and Occupancy of Mortgaged Property. During the continuance
of any Event of Default and pending the exercise by Mortgagee of its right to
exclude Mortgagor from all or any part of the Mortgaged Property, Mortgagor
agrees to pay to Mortgagee the fair and reasonable rental value for the use and
occupancy of the Mortgaged Property or any part thereof that is in Mortgagor's
possession for such period and, upon default of any such payment, shall vacate
and surrender possession of the Mortgaged Property to Mortgagee or to a
receiver, if any, and in default thereof Mortgagor may be evicted by summary
action or proceeding for the recovery of possession of premises for nonpayment
of rent.
2.11. Mortgagee's Attorneys' Fees. Mortgagor shall upon demand pay any
and all costs, expenses, and attorneys' fees incurred by Mortgagee in connection
with (a) enforcing, or attempting to enforce, Mortgagee's rights under the Loan
Documents; (b) obtaining legal advice regarding Mortgagee's available legal
alternatives and rights under the Loan Documents; and (c) representation of
Mortgagee's interest in any action or proceeding that relates to the Loan,
Mortgagor or the Mortgaged Property.
2.12. Effect of Mortgagor's Tender. If, after the occurrence of an
Event of Default but before the sale of the Mortgaged Property, Mortgagor
tenders to Mortgagee payment of the amount necessary to pay all sums then due
hereunder, then such tender shall constitute a voluntary prepayment of the Note,
and Mortgagor shall pay Mortgagee, together with all other sums then due,
Prepayment Charge computed in accordance with the Note.
2.13. Mortgagee's Failure to Allow Cure Period. Notwithstanding
anything to the contrary in any Loan Document, wherever it is stated in this
Mortgage that an Event of Default shall be deemed to have occurred only after
Mortgagee has given notice (a "Cure Notice") of specified circumstances (an
"Unmatured Default") and a specified period of time (the "Cure Period") has
passed, if Mortgagee fails to give the required Cure Notice and commences
foreclosure proceedings under this Mortgage, then, (a) if, within the Cure
Period, as measured from the commencement of the foreclosure proceedings,
Mortgagor cures the applicable Unmatured Default, then Mortgagee shall
discontinue such foreclosure proceedings and reinstate the Loan on the same
terms and conditions, as if the Note had never been accelerated; (b) such
discontinuance of foreclosure proceedings shall constitute Mortgagor's sole
remedy for Mortgagee's failure to have given the required Cure Notice, and
Mortgagee shall have no liability to Mortgagor with respect thereto; and (c)
Mortgagee's failure to give the Cure Notice shall not invalidate, nullify, or
constitute a defense in any foreclosure proceedings that are otherwise properly
commenced.
35
ARTICLE III
Representations and Warranties
Xxxxxxxxx represents and warrants to Mortgagee that, as of the date of
the delivery of this Mortgage and as of each date as of which Mortgagor is
required to make any payment under the Note:
3.1. Title. Etc. Mortgagor has good and marketable title to an
indefeasible fee estate in the Mortgaged Property, subject to no lien, charge or
encumbrance except (a) matters listed as typewritten exceptions to title in
Schedule B of Mortgagee's title policy issued by Land Title Agency, Inc. as
agent for Commonwealth Land Title Insurance Company pursuant to title order
number H186670EP and title order number H186671EP, insuring the lien of this
Mortgage; and (b) Leases that comply with this Mortgage. Upon recordation, this
Mortgage shall impose upon such of the Mortgaged Property as constitutes real
estate a first priority lien. Xxxxxxxxx owns the Chattels and all other
Mortgaged Property free and clear of liens and claims other than those set forth
in said typewritten exceptions.
3.2. Compliance with Requirements. Etc. Mortgagor is in full compliance
with all Requirements and Restrictions. Neither the Mortgaged Property nor any
part thereof was acquired with the proceeds from any transaction or activity
that would cause the Mortgaged Property or any such part to be subject to
forfeiture under any Requirement or Restriction. Furthermore, Mortgagor has not
been responsible for, and has no knowledge of, any action or omission by any
person or entity that would cause the Mortgaged Property or any such part to be
subject to forfeiture.
3.3. Rent Roll. Mortgagor has heretofore delivered to Mortgagee a rent
roll listing the Rents payable under all Leases. All Rents shown in the rent
roll are legal and enforceable Rents and are in compliance with all applicable
Requirements.
3.4. Easements. Etc. Mortgagor has all easements, including those for
use, maintenance, and access (by pedestrians, automobiles and trucks) necessary,
appropriate, or convenient for the full and proper operation, repair,
maintenance, occupancy and use of every portion of the Mortgaged Property. The
Mortgaged Property is adequately served by all utilities necessary, appropriate,
or convenient for the full and proper operation, repair, maintenance, occupancy
and use of every portion of the Mortgaged Property.
3.5. No Misrepresentations. Neither this Mortgage, any other Loan
Document, nor any other document or certificate furnished to Mortgagee or to
Mortgagee's attorneys or to Lenders in connection with the transactions
contemplated hereby or thereby contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading. All certifications, recitals,
representations and warranties contained in the Loan Documents are true and
correct.
3.6. Governmental Approvals. All Authorizations necessary or
appropriate to permit the use and occupancy of the Mortgaged Property and which
are
36
required to be obtained from any Governmental Authority have been duly obtained
and are in full force and effect.
3.7. Approvals of Loan Documents. No consent, approval or authorization
of, or registration, declaration or filing with, any Governmental Authority is
required in connection with the valid execution, delivery and performance of the
Loan Documents or the carrying out of any of the transactions contemplated
thereby.
3.8. Other Beneficiaries. The representations and warranties contained
in the Loan Documents shall inure to the benefit of any purchaser at a
foreclosure sale or other grantee named in a deed delivered in respect of the
Mortgaged Property.
3.9. Federal Law. The proceeds of the Loan are not being and will not
be used, directly or indirectly, for the purpose of "purchasing" or "carrying"
any "margin stock" in contravention of Regulation U or X promulgated by the
Board of Governors of the Federal Reserve System. Mortgagor is incurring the
Loan for business purposes only, and not for personal, family or household
purposes. Neither the Premises nor any part thereof constitutes or is intended
to constitute the personal residence of Mortgagor or any Principal of Mortgagor
at any time while the portion of the Premises so used is encumbered by this
Mortgage. Xxxxxxxxx is a United States person, and is not a foreign person, as
defined in the Foreign Investment in Real Property Tax Act.
3.10. Hazardous Substances. Without limiting the generality of any
other representation or warranty contained in this Mortgage, the Mortgaged
Property and the existing uses thereof comply and, to the best of Mortgagor's
knowledge, at all times have complied in all respects with all Environmental
Laws in effect on the date of this Mortgage; all Environmental Authorizations
have been duly issued or granted and are in full force and effect; and Mortgagor
is not, and at no time since Mortgagor acquired ownership or possession of the
Mortgaged Property or any portion thereof has Mortgagor been, in violation of
any Environmental Law with respect to the Mortgaged Property. Without limiting
the generality of the foregoing:
(a) No Hazardous Substances are being, or are intended or
threatened to be, and, to the best of Mortgagor's knowledge, no
Hazardous Substances have ever been, used, received, handled,
generated, manufactured, produced, processed, treated, stored,
released, placed, spilled, discharged, disposed of or dispersed at, or
otherwise caused to become situated, at, on, under or about the
Mortgaged Property, and no portion of the Mortgaged Property has been
used at any time as a landfill or as a waste treatment, storage or
disposal facility;
(b) None of the Improvements contains (and, to the best of
Xxxxxxxxx's knowledge, none of the Improvements which at any time were
a part of, or were situated at, on or under the Mortgaged Property
contained) any Hazardous Substances;
(c) No underground storage tanks or other underground storage
facilities are, or, to the best of Mortgagor's knowledge, have ever
been, situated on or under the Mortgaged Property;
37
(d) To the best of Xxxxxxxxx's knowledge, (i) the ambient air
quality at the Mortgaged Property complies with the requirements of all
Environmental Laws and (ii) the present levels of radon, formaldehyde,
asbestos and all other Hazardous Substances, to the extent any such
Hazardous Substances exist at, on, under or about the Mortgaged
Property, are within the limits prescribed by all Environmental Laws;
(e) Neither the Mortgaged Property nor, to the best of
Xxxxxxxxx's knowledge, any land which adjoins any portion of the
Mortgaged Property, contains or is affected by any dam, well,
reservoir, inland wetland, watercourse or water discharge; and
Mortgagor has not received or had served upon it any summons, citation,
directive, order, Notice or other communication, oral or written, which (i)
claims or alleges any failure to comply with any Environmental Law with respect
to the Mortgaged Property or (ii) contains any statement(s) or fact(s) which, if
true, would signify that any representation, warranty or statement contained in
this Mortgage is other than complete and correct. With respect to the ownership,
use, operation or maintenance of the Mortgaged Property or the conduct of
Xxxxxxxxx's business thereat, (y) no writ, injunction, decree, order or judgment
is outstanding and (z) no suit, claim, action, proceeding or investigation has
been instituted or filed with respect to any Environmental Law (and, to the best
of Mortgagor's knowledge, no basis for any of the foregoing exists). No lien has
been filed against or imposed upon any of the Mortgaged Property with respect to
any Environmental Law.
Each of the representations and warranties contained in this Section
3.14 shall be deemed made by Mortgagor with respect to all other land, together
with the buildings, structures, equipment and other improvements thereon, in
whole or in part owned, leased, operated or occupied by Mortgagor.
3.11. Split Tax Lots. The tax lot or lots that contain the Mortgaged
Property include no real property other than the Mortgaged Property and
constitute one or more discrete, salable parcels.
ARTICLE IV
Miscellaneous
4.1. Partial Invalidity. If any provision(s) of any Loan Document are
held to be invalid, illegal or unenforceable in any respect, then such
invalidity, illegality or unenforceability shall not affect any other provision
of such instrument(s) and such instrument(s) shall instead be construed as if it
or they had never contained such invalid, illegal or unenforceable provision.
4.2. Notice. (a) All notices hereunder shall be in writing and shall
be deemed sufficiently given or served for all purposes when delivered
personally, or sent by mail to any party hereto at such party's address above
stated (in the case of Mortgagee, attention, Commercial Real Estate Division,
EAB Plaza, Thirteenth Floor, Uniondale,
38
New York 11556-0123), or at such other address of which such party shall have
notified the other party in writing. Any notice given by an attorney
representing or purporting to represent Mortgagee shall constitute notice by
Mortgagee if such attorney is in fact authorized to act on behalf of Mortgagee.
Upon receipt of any notice from an attorney purporting to act for Mortgagee,
Xxxxxxxxx shall have the right, by notice to Mortgagee in compliance with this
Mortgage, to require Mortgagee to deliver prompt written proof of the attorney's
authority. Such a request, if promptly complied with by Mortgagee, shall not
delay or suspend the effectiveness of Mortgagee's notice to Mortgagor.
(b) All notices given to Mortgagee by any person or entity (other than
Mortgagor) pursuant to Pa. C.S.A.ss.8143(b), (c) or (d) shall be in writing and
shall be sent exclusively by United States registered mail, return receipt
requested, to Mortgagee at the address specified in paragraph (a) of this
Section above.
(c) Without limiting, in any manner, any of Mortgagee's other rights
and remedies under this Mortgage, the Loan Agreement or any of the other Loan
Documents, if (i) Mortgagor shall at any time deliver or cause to be delivered
to Mortgagee a notice pursuant to 42 Pa. C.S.A.ss.8143 electing to limit the
indebtedness secured by this Mortgage or (ii) Mortgagee shall receive or be
served with any notice pursuant to 42 Pa. C.S.A.ss.8143(b) or (d), then, in any
such case, Mortgagee's obligations, if any, to continue to make advances under
the Loan Agreement, this Mortgage or any of the other Loan Documents shall
thereupon immediately cease and be of no further force or effect, anything
contained in this Mortgage, the Loan Agreement or any of the other Loan
Documents to the contrary notwithstanding.
4.3. Waiver of Notice. Whenever in this Mortgage the giving of notice
by mail or otherwise is required, the giving of such notice may be waived in
writing by the person or persons entitled to receive such notice.
4.4. Successors and Assigns. All the grants, covenants, terms,
provisions and conditions of this Mortgage shall run with the land, shall apply
to and bind the successors and assigns of Mortgagor (and Xxxxxxxxx's heirs, if
Mortgagor is an individual) and all subsequent owners, encurnbrancers and
tenants of the Mortgaged Property and shall inure to the benefit of the
successors and assigns of Mortgagee and all subsequent holders of this Mortgage.
Nothing in this Section 4.4 limits the prohibitions of Section 1.18. Mortgagee
may freely assign any or all of Mortgagee's rights and obligations under the
Loan Documents, including without limitation by granting "participations" to
other parties.
4.5. Usury Savings. Nothing in any Loan Document shall require the
payment or permit the collection by Mortgagee of interest in an amount exceeding
the maximum amount permitted under applicable law in commercial mortgage loan
transactions between parties of the character of the parties hereto (the
"Maximum Interest Amount"). Mortgagor shall not be obligated to pay to Mortgagee
any interest in excess of the Maximum Interest Amount, and the amount of
interest payable to Mortgagee under the Loan Documents shall under no
circumstance be deemed to exceed the Maximum Interest Amount. To the extent that
any payment made to Mortgagee under the Loan Documents would cause the amount of
interest charged to exceed the Maximum Interest Amount, such payment shall be
deemed a prepayment of principal as to which no
39
Prepayment Charge or notice shall be required, notwithstanding anything to the
contrary in any Loan Document, or, if the amount of excess interest exceeds the
unpaid principal balance of the Note, such excess shall be refunded to
Mortgagor.
4.6. Counterparts. This Mortgage may be executed in any number of
counterparts. Each such counterpart shall for all purposes be deemed an
original. All such counterparts shall together constitute but one and the same
mortgage.
4.7. Governing Law. This Mortgage shall be construed and enforced in
accordance with, and shall be governed by, the laws of the state in which the
Premises are situated.
4.8. Written Amendments. This Mortgage may be amended, discharged or
terminated only by a written instrument executed by Mortgagee and Xxxxxxxxx.
4.9. Actions, Approvals and Determinations. Wherever in this Mortgage
it is provided that (a) as a condition precedent to Xxxxxxxxx's undertaking
certain action, Mortgagor shall be required to obtain Mortgagee's consent or
approval or (b) Mortgagee shall have the right to make a determination
(including, without limitation, a determination as to whether a matter is
satisfactory to Mortgagee), or if Mortgagor shall request that Mortgagee take
any action, then, unless expressly provided to the contrary in the applicable
provision of this Mortgage, the decision whether to grant such consent or
approval or to take the requested action, or the determination in question,
shall be in the sole and exclusive discretion of Mortgagee and shall be final
and conclusive. Wherever in this Mortgage it is stated that any consent or
approval shall not be unreasonably withheld or that a determination to be made
by Mortgagee shall be subject to a specified standard, then, if a court of
competent jurisdiction determines, without right to further appeal, that the
consent or approval has been unreasonably withheld or that such specified
standard has been met, the consent or approval shall be deemed granted or the
standard shall be deemed met, as the case may be, and Mortgagee, at the request
of Mortgagor, shall deliver to Mortgagor written confirmation thereof. The
obtaining of such consent or approval or determination that such standard has
been met shall be Mortgagor's sole and exclusive remedy with respect to the
subject matter of this section, and under no circumstance shall Mortgagee,
Mortgagee's counsel or anyone else acting or purporting to act on Mortgagee's
behalf having any liability (whether in damages or otherwise) with respect
thereto. In any instance in which Mortgagor requests, or any Loan Document
provides, that Mortgagee shall consider granting its consent or approval or
making a determination or taking some other action, Mortgagor shall, upon
demand, pay all costs, expenses and attorneys' fees incurred by Mortgagee in
connection therewith.
4.10. Receipt of C012. Mortgagee has delivered to Mortgagor, without
charge, a true and correct copy of this Mortgage. Xxxxxxxxx acknowledges receipt
of same.
4.11. Modifications. Releases. Etc, Subject to the provisions of
Section 11.02 of the Loan Agreement, from time to time, Mortgagee may, at
Mortgagee's option, without notice to or consent by Xxxxxxxxx, any Principal of
Mortgagor, any Guarantor,
40
any junior lienholder, or any other person, without liability and despite
Xxxxxxxxx's breach under any of the Loan Documents, do any of the following: (a)
release from the lien of this Mortgage any or all of the Mortgaged Property; (b)
take or release other or additional security; (c) consent to any map, plat,
restrictions, or easement affecting the Mortgaged Property; (d) join in any
extension or subordination agreement; (e) alter, substitute or release any
property securing the Loan; or agree in writing with Mortgagor to modify the
interest rate, amortization period, payment amount, or any other provision of
the Note or the Loan Agreement. No action described in the preceding sentence
shall affect the lien or priority of lien of this Mortgage, Xxxxxxxxx's
obligations under the Loan Documents (except as Mortgagee agrees in writing), or
the obligations of any Guarantor or Principal of Mortgagor. Mortgagor shall pay
Mortgagee a reasonable service charge, together with such title insurance
premiums, attorneys' fees and other costs as Mortgagee may incur in connection
with any such action. Mortgagee shall be under no obligation whatever to take
any such actions.
Xxxxxxxxx and Mortgagee shall, upon their mutual agreement to do so,
and in accordance with Section 11.02 of the Loan Agreement execute such
documents as may be necessary in order to effectuate the modification of this
Mortgage, including the execution of substitute mortgages, so as to create two
or more liens on the Mortgaged Property in such amounts as may be mutually
agreed upon but in no event to exceed, in the aggregate, the amount set forth in
Section 6.2 herein; in such event, Mortgagor covenants and agrees to pay the
reasonable fees and expenses of Mortgagee and its counsel in connection with any
such modification.
4.12. Construction. The Loan Documents shall be construed without
regard to section headings, which are provided for convenience only and shall
not be deemed to modify, or be used to interpret, the provisions of this
Mortgage. References to a section are references to a section within this
Mortgage unless otherwise expressly stated or necessarily implied by the
context. The Loan Documents shall be construed without regard to any presumption
or other rule requiring construction against the party which caused the Loan
Documents to be drafted and, if the Premises are situated in New York State,
without regard to New York Real Property Law Section 254. Nothing herein is
intended or shall be deemed to create a joint venture or partnership between
Mortgagor and Mortgagee or any relationship other than that of mortgagor and
mortgagee.
4.13. Non-Merger. Unless expressly provided otherwise, in the event
that ownership of this Mortgage and title to the fee and/or leasehold estates in
the Premises encumbered hereby shall become vested in the same person or entity,
this Mortgage shall not merge in said title but shall continue to be and remain
a valid and subsisting lien on said estates in the Premises for the amount
secured hereby.
ARTICLE V
Transfer Taxes
In the event of any transfer ("Transfer") of the Mortgaged Property, or
any part thereof, including any sale by reason of foreclosure of this Mortgage
or any prior or subordinate mortgage, Mortgagor shall furnish Mortgagee with a
true and complete copy
41
of the transferor and transferee questionnaires, all supporting documentation,
and any affidavits furnished to the taxing authorities or recording officer
applicable thereto, and the vendee or transferee shall automatically assume and
become responsible to perform the obligations imposed upon Mortgagor under this
Article.
Xxxxxxxxx also covenants and agrees that in the event of a Transfer,
Xxxxxxxxx shall duly complete, execute and deliver to Mortgagee all forms and
supporting documentation required by any taxing authority to estimate and fix
the transfer taxes and other taxes, if any, payable by reason of the Transfer or
recording of the deed evidencing the Transfer.
Xxxxxxxxx agrees to pay any tax (including, without limitation, any
transfer tax imposed by any Governmental Authority) that may now or hereafter
become due and payable with respect to any Transfer of the Mortgaged Property,
and in default thereof Mortgagee may at its option pay the same and the amount
of such payment shall be added to the indebtedness secured hereby and, unless
incurred in connection with a foreclosure of this Mortgage, be secured by this
Mortgage.
Mortgagor hereby irrevocably and unconditionally constitutes and
appoints Mortgagee as Xxxxxxxxx's true and lawful attorney in fact, coupled with
an interest, in Xxxxxxxxx's name and stead, with full power of substitution to
prepare and deliver any questionnaire, statement, affidavit or tax return in
furtherance of any Transfer.
If Xxxxxxxxx fails or refuses to pay a tax payable by Xxxxxxxxx after a
Transfer by reason of a foreclosure of this Mortgage in accordance with this
Article, the amount of the tax and any interest or penalty applicable thereto
may, at the sole option of Mortgagee, be paid as an expense of the sale out of
the proceeds of the mortgage foreclosure sale.
The provisions of this Article shall survive any Transfer and the
delivery of the deed affecting such Transfer.
Nothing in this Article is intended (a) to expand any obligation of
Mortgagee beyond that provided for by law; (b) to confer any benefit or rights
upon any taxing authority; or (c) to limit Section 1. 18.
ARTICLE VI
Additional Provisions
6.1. Assignment of Leases and Rents. This Mortgage is intended to
constitute a present, absolute and irrevocable assignment of all of the Rents
now or hereafter accruing, and Mortgagor, without limiting the generality of the
Granting Clause hereof, specifically hereby presently, absolutely and
irrevocably assigns all of the Rents now or hereafter accruing to Mortgagee. The
aforesaid assignment shall be effective immediately upon the execution of this
Mortgage and is not conditioned upon the occurrence of any Event of Default
hereunder or any other contingency or event, provide, however, that Mortgagee
hereby grants to Mortgagor the right and license to
42
collect and receive the Rents as they become due so long, as no Event of Default
exists hereunder. Immediately upon the occurrence of any such Event of Default,
the foregoing right and license shall be automatically terminated and of no
further force or effect. Nothing contained in this Section 6.1 or elsewhere in
this Mortgage shall be construed to make Mortgagee a mortgagee in possession
unless and until Mortgagee actually takes possession of the Mortgaged Property,
nor to obligate Mortgagee to take any action or incur any expense or discharge
any duty or liability under or in respect of any leases or other agreements
relating to the Mortgaged Property or any part thereof
6.2. Type of Property Mortgagor represents and warrants to Mortgagee
that this Mortgage does not cover real property principally improved or to be
improved by one or more structures containing in the aggregate not more than six
residential dwelling units, each having its own separate cooking facilities.
6.3. Maximum Principal Indebtedness Secured. Notwithstanding anything
set forth in this Mortgage to the contrary, the maximum amount of principal
indebtedness secured hereby at execution, or which under any contingency may
become secured hereby at any time hereafter, is $59,000,000, with interest
(including interest at the Default Rate to the extent provided in this
Mortgage), late charges and such other sums as may (a) be advanced by Mortgagee
pursuant to the Loan Documents for the protection of the Mortgaged Property or
the preservation of the lien of this Mortgage (together with attorneys' fees and
disbursements) and (b) be secured hereby without resulting in the imposition of
mortgage recording tax in addition to the amount of tax due with respect to the
principal indebtedness of $59,000,000.
6.4. Exculpation. Neither Mortgagor nor any Principal of Mortgagor
shall be personally liable for payment of the principal of the Note or interest
thereon, and in the event of any failure by Mortgagor to pay any portion of such
principal or interest, Mortgagee will look, with respect to the then outstanding
balance of such principal and interest, solely to the Mortgaged Property and
such other collateral as has been, or hereafter shall be, given to secure
payment of the Note. The foregoing limitation on liability shall not impair or
otherwise affect the validity or enforceability of (a) the debt evidenced by the
Note or of any other obligations evidenced by the Loan Documents or (b)
Mortgagee's liens, security interests, rights and remedies (including, without
limitation, the remedies of foreclosure and/or sale) with respect to the
Mortgaged Property or any other property, security, collateral and/or assets
(including the proceeds thereof) encumbered, pledged or assigned by this
Mortgage or any other security for the Loan. In addition, the foregoing
limitation on liability shall not limit anyone's obligations or be applicable
with respect to: (i) liability under any guaranty(ies) or indemnity(ies)
delivered or afforded to Mortgagee; (ii) any fraud or material
misrepresentation; (iii) taxes of any kind (whether characterized as transfer,
gains or other taxes) payable in connection with the foreclosure sale of the
Mortgaged Property, irrespective of who pays such taxes; (iv) application of any
proceeds of the Loan to any purpose other than as provided in the Loan
Documents; (v) the application of any insurance or condemnation proceeds or
other funds or payments other than strictly in accordance with the Loan
Documents; (vi) the misapplication of any security deposits; (vii) rents, sales
proceeds, or other sums received after default under the Loan Documents which
are not applied to expenses of operating the Mortgaged Property or paid to
Mortgagee or a duly appointed
43
receiver of the Premises; (viii) any failure to deliver to Mortgagee, after
demand therefor, any agreements relating to the operation, management, leasing,
use, occupancy or construction of the Mortgaged Property; (ix) any intentional
physical waste in respect of the Mortgaged Property; (x) any failure to pay or
discharge any real estate tax, other tax, assessment, fine, penalty or lien
against the Mortgaged Property to the extent revenue from leases of the
Mortgaged Property was available to pay same; (xi) liability to Mortgagee for
the reimbursement to Mortgagee, together with interest as provided in the Loan
Documents, of all sums advanced or expended by Mortgagee after or in respect of
any default under the Loan Documents; (xii) liability as landlord under any
lease(s) relating to the Mortgaged Property ,vhich Lenders are or become
obligated for by virtue of Lenders succeeding to the interests of Borrower;
(xiii) liability under any agreement relating to the operation or maintenance of
the Mortgaged Property which Lenders are or become obligated for by virtue of
Lenders succeeding to the interests of Borrower; (xiv) liability to pay for the
premiums on and keep in full force and effect insurance in respect of the
Mortgaged Property in accordance with the Loan Documents to the extent revenue
from leases of the Mortgaged Property was available to pay same; or (xv)
liability for Hazardous Substances that may exist upon or be discharged from the
Mortgaged Property. Mortgagor and any Principal of Mortgagor shall in any event
be and shall remain personally liable for each of the matters to which reference
is made in the preceding sentence and Mortgagee may seek, obtain and enforce one
or more money judgments in any appropriate proceeding(s) with respect thereto.
The limitation on personal liability contained in this paragraph shall become
automatically null and void and shall be of no further force or effect, and
Mortgagor and each Principal of Mortgagor shall be and remain personally liable
for payment of the principal of the Note and interest thereon, in the event that
Mortgagor. or anyone acting on behalf of Mortgagor, shall (A) file a petition or
answer seeking any relief of any kind under the bankruptcy laws of the United
States (or if an Insolvency Event shall otherwise occur), (B) assert in writing
or in any legal proceedings of any kind that any provisions of any of the Loan
Documents are in whole or in part unenforceable, invalid or not legally binding,
or (C) fail fully to cooperate with Mortgagee or a receiver in Mortgagee's or
such receiver's efforts to collect Rents directly from tenants after a default
under the Loan Documents.
6.5. Exculpation of Trustees. This Mortgage is executed by certain
Trustees of Acadia Realty Trust (the "Trust"), the general partner of Xxxxxxxxx,
not individually, but solely in their representative capacities as trustees of
the Trust. Mortgagee hereby waives any rights to bring a cause of action against
the individuals executing this Mortgage as trustees of the Trust (except for any
cause of action based upon lack of authority or fraud), and Mortgagee agrees to
look solely to the Mortgaged Property or, if permitted under this Mortgage, the
other assets of Mortgagor or Principal of Mortgagor, for the enforcement of any
claim Mortgagee at any time may have under this Mortgage or under the Loan
Documents.
6.6. Reduction of Mortgage Amount Amounts received by Mortgagee in
reduction of the Loan in accordance the Loan Agreement shall not decrease the
amounts secured by this Mortgage unless (i) such payments are received in
connection with the release of the Premises encumbered by this Mortgage or (ii)
the aggregate amounts actually received in reduction of the Loan has reduced the
maximum Loan
44
Amount that is or may be outstanding, after taking into consideration sums that
may be advanced pursuant to the Loan Agreement, to the Mortgage Amount.
[Remainder of page intentionally left blank.]
45
IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered
by Xxxxxxxxx intending to be legally bound and intending the same to take effect
as a sealed instrument as of the date first above written.
ACADIA REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership (as Borrower)
By: Acadia Realty Trust, a Maryland real estate
investment trust, its general partner
Attest: By [SEAL]
Name:
By Title:
Name:
Title:
The undersigned joins in the execution and authorizes the
delivery of this Mortgage for the purpose of accepting and agreeing to the
provisions of paragraph 6.5 hereof
ACADIA REALTY TRUST
Attest, By (SEAL]
Name:
By Title:
Name:
Title:
The undersigned hereby certifies that Mortgagee's address is EAB Plaza,
Thirteenth Floor, Uniondale, New York 11556-0123.
Attorney for Mortgagee
46
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On the day of March in the year 2000, before me, the undersigned, a
notary public in and for said state, personally appeared personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
Notary Public
My commission expires:
XXXXXX XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Kings County
Commission Expires Aug. 31, 2000
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On the _ day of March in the year 2000, before me, the undersigned, a
notary public in and for said state, personally appeared personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
Notary Public
My commission expires:
XXXXXX XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Kings County
Commission Expires Aug. 31, 20
[Xxxxxxxx Xxxxx Center]
SCHEDULE A
All that certain parcel of land being in the Township of Wysox, County
of Bradford, Commonwealth of Pennsylvania, bounded and described as follows:
Beginning at the north east xxxxx of Xxxxxx X. Xxxxx, et al., commonly
known as Xxxxx'x Auto Sales and also at a point in the southern right-of-way of
State Route 6, also being the north west xxxxx of parcel herein described,
thence along the southern right-of-way of Route 6 on a curve to the right with
an arc length of 307.30 feet, a radius of 1860.08 feet, and a chord bearing and
distance of North 78 degrees 15 minutes 35 seconds East 306.95 feet, thence
still along the southern right-of-way of Route 6 the next three courses :(I)
North 82 degrees 59 minutes 34 seconds East 102.08 feet, (2) South 85 degrees 41
minutes 51 seconds East 101.98 feet, (3) North 82 degrees 59 minutes 34 seconds
East 171.99 feet to the center line of Little Wysox Creek, thence downstream in
the bed of Little Wysox Creek the next nine courses and distances: (1) South 46
degrees 27 minutes 17 seconds East 86.45 feet to an angle, (2) South 52 degrees
57 minutes East 81.9 feet to an angle, (3) South 66 degrees 68 minutes East 58.2
feet to an angle, (4) South 61 degrees 21 minutes 47 seconds East 201.44 feet to
an angle, (5) South 71 degrees 19 minutes 21 seconds East 372.06 feet to an
angle, (6) South 49 degrees 01 minutes 22 seconds East 320.49 feet to an an le,
(7) South 67 degrees 00 minutes 05 seconds East 373.88 feet to an angle, (8)
South 45 degrees 50 minutes 20 seconds East 271.10 feet to an angle, (9) South
76 degrees 14 minutes 20 seconds East 96.24 feet to a point in the line of the
Consolidated Rail Corporation, now or formerly and also being the most south
xxxxxxxx xxxxx of parcel herein described, thence along said lands of the
Consolidated Rail Corporation, now or formerly the following four courses and
distances: (1) South 73 degrees 36 minutes 12 seconds West 736.65 feet to an
angle, (2) South 73 degrees 02 minutes West 199.7 feet to a found pin, (3) South
70 degrees 20 minutes West 515.00 feet to a found pin, and (4) South 73 degrees
10 minutes West 881.8 feet to a found pin in the line of lands of Agway, Inc.
the southernmost point of the herein described premises; thence along Agway,
Inc. and along lands of Xxxxx Xxxxx, North 00 degrees 17 minutes West 1188.03 to
a point at an angle, thence along said lands of Xxxxx the following two courses
and distances: (1) South 89 degrees 43 minutes West 25.56 feet to an angle, and
(2) North 00 degrees 17 minutes West 150.34 feet to a point for a xxxxx, thence
along lands of Xxxxxx X. Xxxxx, et al, commonly known as Xxxxx'x Auto Sales,
North 00 degrees 06 minutes 15 seconds West 183.80 feet to the point and place
of beginning. Containing 48.00 acres of land, according to a Survey Map No.
R-3748-5A of the premises by Xxxxxx X. Xxxxx and Associates, Xxxxxxx X. Xxxxxxx,
R.S. most recently revised March 20, 2000
[Route 6 Mall]
SCHEDULE A
ALL THAT CERTAIN piece or parcel of land with buildings and
improvements thereon situate in Texas Township, Xxxxx County, Pennsylvania,
bounded and described as follows:
BEGINNING at a point the intersection of the centerline of U.S. Route
#6 and the westerly line of a parcel of land conveyed to the Honesdale Mall
Associates as recorded in Xxxxx County Deed Book 388 Page 788;
thence, along, the westerly line of Honesdale Mall Associates, the following
two courses and distances:
1.) South zero degrees, thirty-five minutes, fifty-six seconds West (S 00
35' 56" W), four-hundred fifty-nine and thirty-six one-hundredths feet
(459.36') to a point;
2.) South twelve degrees, twelve minutes, seventeen second East (S 12' 12'
17" E), five-hundred thirty and twelve one-hundredths feet (530.12')
to a point in the northerly bank of the Lackawaxen River;
thence, along the said northerly bank of the Lackawaxen River, the following
eight courses and distances:
1.) South sixty-eight degrees, forty-two minutes, fifty-four seconds West
(S 680 42' 54" W), fifty-three and forty-two one-hundredths feet
(53.42') to a point;
2.) North eighty-eight degrees, twenty-four minutes, forty-five seconds
west (N 88' 24'45" W), one-hundred two and sixteen one-hundredths feet
(102.16') to a point;
3.) South forty degrees, seven minutes, thirteen seconds West (S 40' 07'
13" W), two-hundred thirty-one and forty-two one-hundredths feet
(231.42') to a point;
4.) South eighty-five degrees, thirty-five minutes, eleven seconds West (S
85' 3 5' 11 " W) one hundred thirty seven and forty-three
one-hundredths feet (137.43') to a point;
5.) South eighty-nine degrees, fifty-eight minutes, fifty-nine seconds west
(S 891 58' 59" W), one-hundred eighteen and seventy-one hundredths feet
(1187) to a point;
6.) North sixty-six degrees, fourteen minutes; twenty-five seconds West (N
660 14'25" W), three-hundred twenty-six and ninety-eight one-hundredths
feet (326.98') to a point;
7.) North sixty-eight degrees, fifty-one minutes, thirty-seven seconds West
(N 68' 5 1' 37" W), one-hundred three and twenty-seven one-hundredths
feet (103.27') to a point;
8.) North sixty-six degrees, thirty-one minutes, twenty-one seconds West (N
66* 3 11 21 " W), three-hundred thirty-two and sixteen one-hundredths
feet (332.16') to a point;
thence, along lands of Xxx Xxxxxxx the following five courses and distances:,
1.) North twelve degrees, twenty-four minutes, fifty-two seconds west (N
12' 24'52" W), four-hundred thirty-one and fifty-three one-hundredths
feet (431.53') to a point;
2.) North thirty-five degrees, thirteen minutes, ten seconds East (N 35'
13' 10" E), forty-eight and forty-two one-hundredths feet (48.42') to
a point; ,
3.) South eighty-six degrees, zero minutes; forty-five seconds East (S 86'
00'45" E), one-hundred fifty-five and eighty one-hundredths feet (15
5.80') to a point;
4.) North eighty-six degrees, two minutes, forty-eight seconds East (N 86'
02'48" B), one-hundred ninety-nine and three one-hundredths feet
(199.03') to a point;
5.) North ten degrees, fifty-two minutes, fifteen seconds East (N 10' 52'
15" E), ninety-nine and eighty-nine one-hundredths feet (99.89) to the
point in the centerline of Old Willow Road;.
thence, continuing along, the centerline of Old Willow Road, the following seven
courses and distances:
1.) North eighty-three degrees, thirty minutes, five seconds East (N 83'
30' 05" E) one-hundred eighteen and ninety-two one-hundredths feet
(118.92') to a point;
2.) North seventy-nine degrees, forty- seven minutes, fifty-five seconds
East (N 79' 47'55" E) , fifty-three and twenty-one one-hundredths feet
(53.2 1') to a point;
3.) North seventy-one degrees, twenty-one minutes, forty-six seconds East
(N 710 21'46" E), one-hundred thirty-four and ninety-six one-hundredths
feet (134.96') to a point;
4.) North sixty-three degrees, fifty-nine minutes, twenty-four seconds East
(N 63' 59'24" E), one-hundred fifty-nine and ninety-one one-feet
(159.9 1') to a point;
5.) North sixty-one degrees, fifty-five minutes, thirteen seconds East (N
61' 55' 13" E), eighty-five and fifty-one one hundredths feet (85.5
1') to A point;
6.) North fifty-seven degrees, twenty-two minutes, thirteen seconds East (N
57' 22'20" E) one-hundred two and seventy-two one-hundredths feet
(102.72') to a point;
North fifty-four degrees, one minute, fifty-four seconds East (v 54'
Oil S4" E), one-hundred four and forty-nine one-hundredths feet (104.49') to a
point being the intersection of the centerline of Old Willow Road and the
centerline of U.S. Route 0;
thence, along the centerline of said U.S. Route 4&, North eighty degrees, forty
Minutes, eighteen seconds East (N 80* 40' 18" E) one-hundred fifty-five and
twenty-six once-hundredths feet (155.26') to the point of beginning for lands
descried herein.
Together with the rights granted in the Shopping Center Reciprocal
Easement and Operation Agreement between Mark Twenty Realty, Inc. Mark Centers
Limited Partnership, a Delaware Limited Partnership Xxxxxx Xxxxxxxxx
Association, a Pennsylvania Limited Partnership, Mark HM
Association, a Pennsylvania Limited Partnership and K-Mart, a Michigan
Corporation dated May 28, 1994 and recorded May 25, 1994 in Xxxxx County Record
Book 936 Page 261 et seq.
XXXXXXXX XXXXX PARCEL
ALL that certain piece or parcel of land situate, lying, and being in
the Township of Texas, County of Xxxxx, and State of Pennsylvania, bounded and
described as follows:
BEGINNING at a point being the intersection or the northwesterly right
of way line of Old Willow Avenue and the southwesterly right-of-way line of
U.S. Route 46;
thence, along the said northwesterly right of way line of Old Willow Avenue the
following two courses and distances:
1.) South fifty-seven degrees, twenty-two minutes, twenty seconds West (S
570 22'20 W), eighty-nine and eighteen one-hundredths feet (89.18') to
a point;
2.) South sixty-one degrees, fifty-five minutes, thirteen seconds West (s
61" 55' 13" W), seventy-three and eighty-four one-hundredths feet
(73.84') to a point; thence, along lands as conveyed to Xxxxxx Xxxxxxxx
in Xxxxx County Deed Book 377, Page 436, North two degrees, three
minutes, forty-six seconds East (N 02' 03'46" E), sixty-one and
sixty-two one-hundredths feet (61:62') to a point in the aforesaid
southwesterly right of way line of U.S. Route 46;
thence, along the southwesterly right of way line of said R.S. Route #6, North
eighty-one degrees, fourteen minutes, forty-two seconds East (N 811 14'42" E),
one-hundred thirty-nine and sixty -six one hundredths feet (139.66') to the
point of beginning for lands described herein.
CONTAINING an area of 4,487.8 square fee of land and being the same
premises as conveyed by Xxxxxxxx Xxxxx to Mark Centers Limited Partnership by
Xxxx dated November 18, 1994 and recorded in Xxxxx County Deed Book 990, Page
108.
BEING the same premises conveyed from Xxxxxx X. Xxxxxxxxx Associates to
Mark Centers Limited Partnership by Deed dated may 11, 1994 and recorded in
record Book 93 1, Page 247.
