OPEN-END MORTGAGE AND SECURITY AGREEMENT
This is an Open-End Mortgage and Security Agreement and secures future advances
pursuant to 42PA C.S.ss.ss.ss.8143 and 8144, act. No. 126 of 1990
KNOW ALL MEN BY THESE PRESENTS that CEDAR XXXXXX, LLC, a Delaware
limited liability company having an address at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter, the "Mortgagor") for consideration
paid, hereby grants, conveys, transfers, assigns and sets-over unto FLEET
NATIONAL BANK, a national banking association having an address at 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as agent under a Loan Agreement
(hereinafter, the "Loan Agreement") dated January 30, by and among CEDAR
SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware limited partnership having an
address at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter,
the "Borrower", which Borrower is not a party to this Mortgage), Fleet National
Bank and the other lending institutions which are or become parties to the Loan
Agreement (Fleet National Bank and the other lending institutions which are or
become parties to the Loan Agreement are collectively referred to as the
"Lenders" and individually as the "Lender"), and Fleet National Bank, as Agent
(hereinafter, the "Agent"), with MORTGAGE COVENANTS, the Mortgaged Property (as
defined below) to secure the Obligations (as defined below).
The terms "Mortgagor" and "Borrower" shall include, wherever the
context permits, their successors and assigns. The terms "Agent" and "Lenders"
shall include, wherever the context permits, their successors and assigns as the
holder for the time being of this Open-End Mortgage and Security Agreement, and
the Obligations hereby secured.
This Open-End Mortgage and Security Agreement (hereinafter, the
"Mortgage") is granted pursuant to the terms, provisions and conditions of the
Loan Agreement. Capitalized terms used herein which are not otherwise
specifically defined shall have the same meaning herein as in the Loan
Agreement.
The term "Mortgaged Property" shall mean and include all of the
following described property:
A. Real Estate. The land more particularly described on Exhibit A which
is annexed hereto and made a part hereof (hereinafter, the "Land") together with
the improvements and other structures now or hereafter situated thereon (such
improvements being sometimes called the "Improvements") located at the
intersection of Route 255 and Commons Drive, Xxxxx Township, Clearfield County,
Pennsylvania, together with all rights, privileges, tenements, hereditaments,
appurtenances, easements, including, but not limited to, rights and easements
for access and egress and utility connections, and other rights now or hereafter
appurtenant thereto (hereinafter, the "Real Estate");
B. Fixtures. All real estate fixtures or items which by agreement of
the parties may be deemed to be such fixtures, now or hereafter owned by
Mortgagor, or in which Mortgagor has or hereafter obtains an interest, and now
or hereafter located in or upon the Real Estate, or now or hereafter attached
to, installed in, or used in connection with any of the Real Estate, including,
but not limited to, any and all portable or sectional buildings, bathroom,
plumbing, heating, lighting, refrigerating, ventilating and air-conditioning
apparatus and equipment, garbage incinerators and receptacles, elevators and
elevator machinery, boilers, furnaces, stoves, tanks, motors, sprinkler and fire
detection and extinguishing systems, doorbell and alarm systems, window shades,
screens, awnings, screen doors, storm and other detachable windows and doors,
mantels, partitions, built-in cases, counters and other fixtures whether or not
included in the foregoing enumeration (hereinafter, the "Fixtures");
C. Additional Appurtenances. All bridges, easements, rights of way,
licenses, privileges, hereditaments, permits and appurtenances hereafter
belonging to or enuring to the benefit of the Real Estate and all right, title
and interest of Mortgagor in and to the land lying within any street or roadway
adjoining any of the Real Estate and all right, title and interest of Mortgagor
in and to any vacated or hereafter vacated streets or roads adjoining any of the
Real Estate and any and all reversionary or remainder rights (hereinafter, the
"Additional Appurtenances");
D. Awards. All of the right, title and interest of Mortgagor in and to
any award or awards heretofore made or hereafter to be made by any municipal,
county, state or federal authorities to the present or any subsequent owners of
any of the Real Estate or the Land, or the Improvements, or the Fixtures, or the
Additional Appurtenances, or the Leases or the Personal Property, including,
without limitation, any award or awards, or settlements or payments, or other
compensation hereafter made resulting from (x) condemnation proceedings or the
taking of the Real Estate, or the Land, or the Improvements, or the Fixtures, or
the Additional Appurtenances, or the Leases or the Personal Property, or any
part thereof, under the power of eminent domain, or (y) the alteration of grade
or the location or discontinuance of any street adjoining the Land or any
portion thereof, or (z) any other injury to or decrease in value of the
Mortgaged Property (hereinafter, the "Awards");
E. Leases. All leases now or hereafter entered into of the Real Estate,
or any portion thereof, and all rents, issues, profits, revenues, earnings and
royalties therefrom, and all right, title and interest of Mortgagor thereunder,
including, without limitation, purchase or sale options, cash, letters of
credit, or securities deposited thereunder to secure performance by the tenants
or occupants of their obligations thereunder, whether such cash, letters of
credit, or securities are to be held until the expiration of the terms of such
leases or occupancy agreements or applied to one or more of the installments of
rent coming due prior to the expiration of such terms including, without
limitation, the right to receive and collect the rents and other payments due
thereunder (hereinafter, the "Leases");
F. Purchase and Sale Agreements. All purchase and sale agreements now
or hereafter entered into of the Real Estate, or any portion thereof, or any
condominium units into which the Real Estate may be converted including, without
limitation, cash, letters of credit or securities deposited thereunder to secure
performance by the purchasers of their obligations thereunder (hereinafter, the
"Purchase and Sale Agreements"); and
G. Personal Property. All tangible and intangible personal property now
owned or at any time hereafter acquired by Mortgagor of every nature and
description, and whether or not used in any way in connection with the Real
Estate, the Fixtures, the Additional Appurtenances, the Purchase and Sale
Agreements or any other portion of the Mortgaged Property, including, without
limitation express or implied upon the generality of the foregoing, all
Equipment, Goods, Inventory, Fixtures, Accounts, Instruments, Documents and
General Intangibles (as each such capitalized term is defined in the Uniform
Commercial Code in effect in the Commonwealth of Pennsylvania) and further
including, without any such limitation, the following whether or not included in
the foregoing: materials; supplies; furnishings; chattel paper; money; bank
accounts; security deposits; utility deposits; any insurance or tax reserves
deposited with Agent; any cash collateral deposited with Agent; claims to
rebates, refunds or abatements of real estate taxes or any other taxes; contract
rights; plans and specifications; licenses, permits, approvals and other rights;
the rights of Mortgagor under contracts with respect to the Real Estate or any
other portion of the Mortgaged Property, or the Project; signs, brochures,
advertising, the name by which the Mortgaged Property is known and any variation
of the words thereof, and good will; copyrights, service marks, and all goodwill
associated therewith; and trademarks; all proceeds paid for any damage or loss
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to all or any portion of the Real Estate, the Fixtures, the Additional
Appurtenances, any other Personal Property or any other portion of the Mortgaged
Property (hereinafter, the "Insurance Proceeds"); all Awards; all Leases; all
Purchase and Sale Agreements; all books and records; and all proceeds, products,
additions, accessions, substitutions and replacements to any one or more of the
foregoing (hereinafter, collectively, the "Personal Property").
The term "Obligations" shall mean and include:
A. The Guaranteed Obligations, as such term is defined in that certain
Guaranty of even date executed by the Mortgagor in favor of the Agent on behalf
of the Lenders;
B. The payment, performance, discharge and satisfaction of each
covenant, warranty, representation, undertaking and condition to be paid,
performed, satisfied and complied with by Mortgagor under and pursuant to this
Mortgage, the Guaranty, the Loan Documents, or any other document executed in
connection therewith;
C. The payment of all costs, expenses, legal fees and liabilities
incurred by Agent and the Lenders in connection with the enforcement of any of
Agent's or any Lenders' rights or remedies under this Mortgage, the Guaranty,
the Loan Documents, or any other instrument, agreement or document which
evidences or secures any other obligations or collateral therefor, whether now
in effect or hereafter executed; and
D. The payment, performance, discharge and satisfaction of each
liability and obligation of Mortgagor to Agent or any Lender under any one or
more of the Loan Documents and any amendment, extension, modification,
replacement or recasting of any one or more of the instruments, agreements and
documents referred to herein or therein or executed in connection with the
transactions contemplated hereby or thereby.
Mortgagor hereby grants to Agent, on behalf of the Lenders, a
continuing security interest in all of the Mortgaged Property in which a
security interest may be granted under the Uniform Commercial Code as such is in
effect in the Commonwealth of Pennsylvania, including, without limitation, the
Fixtures, the Personal Property and the Purchase and Sale Agreements, together
with all proceeds and products, whether now or at any time hereafter acquired
and whether or not used in any way in connection with the development,
construction, marketing or operation of the Real Estate, or in connection with
the Project, to secure all Obligations.
This instrument is intended to take effect as a mortgage pursuant to
Pennsylvania law, and as a security agreement pursuant to the UCC and is to be
filed with the Office of the Recorder of Deeds of Clearfield County,
Pennsylvania as a fixture financing statement pursuant to the UCC.
Mortgagor covenants, warrants, represents and agrees with Agent, its
successors and assigns, and the Lenders, that:
1. Title. Mortgagor has good record title to the Mortgaged Property and
has good right, full power and lawful authority to grant and convey the
same in the manner aforesaid; and that the Mortgaged Property are free
and clear of all encumbrances and exceptions, except for the Permitted
Title Exceptions, if any, as set forth on Exhibit B which is annexed
hereto and made a part hereof. Mortgagor shall make any further
assurances of title that Agent may in good faith require including,
without limitation, such further instruments as may be requested by
Agent to confirm the assignment to Agent of all Awards.
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2. Performance of Obligations. Mortgagor shall perform and observe all of
the obligations and conditions set forth in each of the Guaranty, this
Mortgage, the Assignment of Leases and Rents, the Environmental
Indemnity, and each of the other Loan Documents or other agreements, if
any, executed by Mortgagor in connection with the Loan.
3. Protection and Maintenance. Mortgagor shall protect and maintain, or
cause to be maintained, in good, first-class and substantial order,
repair and tenantable condition at all times, the buildings and
structures now standing or hereafter erected on the Mortgaged Property,
and any additions and improvements thereto, and all Personal Property
now or hereafter situated therein, and the utility services, the
parking areas and access roads, and all building fixtures and equipment
and articles of personal property now or hereafter acquired and used in
connection with the operation of the Mortgaged Property. Mortgagor
shall promptly replace any of the aforesaid which may become lost,
destroyed or unsuitable for use with other property of first-class
character.
4. Insurance Coverages. Mortgagor shall insure the Mortgaged Property and
the operation thereof with such coverages and in such amounts as are
required by the provisions of the Loan Agreement and shall at all times
keep such insurance in full force and effect and pay all premiums
therefor in accordance with the terms and conditions of the Loan
Agreement. The original or certified copies of all such policies of
insurance (or certificates or binders thereof issued by the insurer in
form, content and manner of execution reasonably satisfactory to Agent)
shall be delivered to Agent and the Lenders, and Mortgagor shall
deliver to the Agent and the Lenders a new policy or certified copy
thereof (or such a certificate) as replacement for an expiring policy
(or such a certificate) required to be deposited hereunder together
with proof of payment of the premiums therefor in accordance with the
terms and conditions of the Loan Agreement. Mortgagor hereby
irrevocably appoints Agent its true and lawful attorney-in-fact, with
full power of substitution, to assign any such policy in the event of
the foreclosure of this Mortgage.
5. Insurance Proceeds. The proceeds of any hazard insurance shall be
applied in accordance with Article 14 of the Loan Agreement relating to
the application of insurance proceeds, which provisions are expressly
incorporated by reference herein. Notwithstanding anything in this
Section 5 to the contrary, however, if the insurer denies liability to
Mortgagor, Mortgagor shall not be relieved of any obligation under
Section 3 of this Mortgage.
6. Eminent Domain. The Awards of damages on account of any condemnation
for public use of, or injury to, the Mortgaged Property shall be
applied in accordance with Article 14 of the Loan Agreement relating to
the application of condemnation proceeds, which provisions are
expressly incorporated by reference herein.
7. No Waste; Compliance With Law. Mortgagor shall not commit or suffer any
intentional waste of the Mortgaged Property, or any portion thereof, or
any violation of any law, rule, regulation, ordinance, license or
permit, or the requirements of any licensing authority affecting the
Mortgaged Property or any business conducted thereon, and shall not
commit or suffer any material (for purposes of this section, "material"
shall mean an activity in excess of $500,000.00) demolition, removal or
alteration of any of the Mortgaged Property (except for customary
renovations or alterations performed in connection with Approved Leases
or the replacement of Fixtures and Personal Property in the ordinary
course of business, so long as items of comparable value and quality
are installed free and clear of liens in favor of any other party),
without the express prior written consent of Agent in each instance
which consent shall not be unreasonably withheld or delayed, and shall
not violate nor suffer the violation of the covenants and agreements,
if any, of record against the Mortgaged Property, and in all respects
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Mortgagor shall do all things necessary to comply with, and keep in
full force and effect all licenses, permits and other governmental
authorizations for the operation of the Mortgaged Property for its
intended purposes, including, without limitation express or implied,
the licenses, permits and authorizations referenced in the Loan
Agreement.
8. Environmental and Related Matters; Indemnification. Mortgagor shall at
all times comply with all of the terms, conditions and provisions
imposed on the Indemnitors (as defined in the Environmental Indemnity)
under the Environmental Indemnity and indemnify, exonerate and save
harmless Agent, and each of the Lenders and each other Indemnified
Party (as defined in the Environmental Indemnity) in accordance with
the terms of the Environmental Indemnity.
9. Payment of Taxes and Prevention of Liens. Mortgagor shall pay in
accordance with the terms of the Loan Agreement, all taxes, assessments
and charges of every nature and to whomever assessed that may now or
hereafter be levied or assessed upon the Mortgaged Property or any part
thereof, or upon the rents, issues, income or profits thereof or upon
the lien or estate hereby created, whether any or all of said taxes,
assessments or charges be levied directly or indirectly or as excise
taxes or as income taxes. Mortgagor may apply for tax abatements and
prosecute diligently and in good faith claims for refund and any such
taxes, assessment, and charges, provided the requirements of Section
8.2.3 of the Loan Agreement are satisfied.
10. Due On Sale; No Other Encumbrances; No Transfer of Ownership Interests;
Failure to Comply with Permitted Exceptions. The Borrower shall comply
with the terms and conditions of the Loan Agreement with respect to
Permitted Transactions.
11. Agent's and Lenders' Rights. If Mortgagor shall neglect or refuse: (a)
to maintain and keep in good repair the Mortgaged Property or any part
thereof as required by this Mortgage or the Loan Agreement, taking into
account all applicable grace and cure periods, or (b) to maintain and
pay the premiums for insurance which may be required by this Mortgage
or the Loan Agreement, taking into account all applicable grace and
cure periods, or (c) subject to Mortgagor's right to contest as set
forth in the Loan Agreement, to pay and discharge all taxes of
whatsoever nature, assessments and charges of every nature and to
whomever assessed, as required by this Mortgage or the Loan Agreement,
taking into account all applicable grace and cure periods, or (d) to
pay the sums required to be paid by this Mortgage or the Loan
Agreement, taking into account all applicable grace and cure periods,
or (e) to satisfy any other terms or conditions of this Mortgage, or
any instrument secured hereby, taking into account all applicable grace
and cure periods, Agent may, at its election in each instance, but
without any obligation whatsoever to do so, upon thirty (30) days prior
written notice (except in the case of (i) an emergency where there is
danger to person or property, or (ii) required insurance coverage would
lapse, or (iii) an Event of Default exists, in each of which events no
notice shall be required except notice of such Event of Default), cause
such repairs or replacements to be made, obtain such insurance or pay
said taxes, assessments, charges, and sums, incur and pay reasonable
amounts in protecting its rights hereunder and the security hereby
granted, pay any balance due under any conditional agreement of sale
(or lease) of any property included as a part of the Mortgaged
Property, and pay any amounts as Agent deems reasonably necessary or
appropriate to satisfy any term or condition of this Mortgage, which
Mortgagor shall have failed to satisfy, or to remedy any breach of such
term or condition, and any amounts or expenses so paid or incurred,
together with interest thereon from the date of payment by Agent or the
Lenders at the Default Rate as provided in the Loan Agreement shall be
immediately due and payable by Mortgagor to Agent and the Lenders and
until paid shall be secured hereby equally and ratably, and the
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same may be collected as part of said principal debt in any suit
hereon. No payment by Agent or the Lenders shall relieve Mortgagor from
any default hereunder or impair any right or remedy of Agent consequent
thereon.
12. Tax Reserve and Insurance Reserve. Mortgagor shall, upon the request of
Agent, from time to time while an Event of Default is existing, pay to
Agent on dates upon which installments of interest are payable under
the Loan Agreement, such amount as Agent from time to time estimates as
necessary to create and maintain a reserve fund from which to pay
before the same become due: (a) all taxes, assessments, liens and
charges on or against the Mortgaged Property, and (b) all premiums for
insurance policies which are required by this Mortgage. Such payments,
if so requested, shall be invested in a non-interest bearing account
which shall be held by Agent as cash collateral. Any part or all of
such reserve fund may be applied, at the option of Agent, to (i) cure
the existing Event of Default, (ii) pay down any part of the
indebtedness hereby secured, or (iii) pay to the taxing authority or
the insurer the applicable real estate taxes or insurance premiums then
due on behalf of Mortgagor. Payments from such reserve fund for said
purposes may be made by Agent in accordance with this Section 12 even
though subsequent owners of the property described herein may benefit
thereby. In refunding any part of said reserve fund, Agent may deal
with whomever is the record owner of such property at that time.
13. Certain Expenses. If any action or proceeding is commenced, including,
without limitation, an action to foreclose this Mortgage or to collect
the debt hereby secured, to which action or proceeding Agent or any
Lender is made a party by reason of the execution of this Mortgage, or
by reason of any obligation which it secures, or by reason of entry or
any other action under this Mortgage, or if in Agent's reasonable
judgment it becomes necessary in connection with legal proceedings or
otherwise to defend or uphold the mortgage hereby granted or the lien
hereby created or any act taken to defend or uphold the mortgage hereby
granted or the lien hereby created or any act taken under this
Mortgage, all sums reasonably paid or incurred by Agent or any Lender
for the expense of any litigation or otherwise, in connection with any
rights created by this Mortgage or any other Loan Document, shall be
paid by Mortgagor, or may at the option of Agent, if not so paid, be
added to the debt secured hereby and shall be secured hereby equally
and ratably and shall bear interest until paid at the Default Rate set
forth in the Loan Agreement.
14. Regarding Leases. Mortgagor shall comply with the terms and conditions
set forth in the Loan Agreement with respect to any leases or occupancy
agreements with respect to the Mortgaged Property.
15. Declaration of Subordination. At the option of Agent, which may be
exercised at any time or from time to time, by written notice to
Mortgagor and to any applicable tenant, this Mortgage shall become
subject and subordinate, in whole or in part (but not with respect to
priority of entitlement to insurance proceeds or condemnation
proceeds), to any and all leases of all or any part of the Mortgaged
Property upon the execution by Agent and recording or filing thereof,
at any time hereafter in the appropriate official records of the
county/registry of deeds wherein the Mortgaged Property are situated of
a unilateral declaration to that effect.
16. Further Assignment by Mortgagor. Mortgagor hereby further assigns to
Agent as security for the Obligations the lessor's interests in any or
all leases, now or hereafter outstanding, and to the extent it may
lawfully do so Mortgagor's interests in all agreements, contracts,
licenses and permits, now or hereafter outstanding, affecting all or
any portion of the Mortgaged Property. Mortgagor shall execute,
acknowledge and deliver such further or confirmatory assignments
thereof, by instruments in form reasonably satisfactory to the Agent,
as Agent may reasonably require. Mortgagor hereby authorizes Agent in
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the event of foreclosure, to sell and assign said interests to the
purchaser at foreclosure, but neither such assignment nor any such
future assignment shall be construed as binding Agent to any lease,
agreement, contract, license or permit so assigned, or to impose upon
Agent any obligations with respect thereto. Mortgagor hereby
irrevocably appoints Agent, or any agent designated by Agent, the true
and lawful attorney-in-fact of Mortgagor, with full power of
substitution, to execute, acknowledge and deliver any such assignment
on behalf of Mortgagor which Mortgagor fails or refuses to do. In the
event of any conflict between the provisions of this Section and the
provisions of the Collateral Assignment of Leases and Rents, or any of
the other Loan Documents, the provisions of the Collateral Assignment
of Leases and Rents shall govern.
17. UCC Filing. Mortgagor, upon Agent's written request, shall promptly
cause this Mortgage and any required financing statements to be
recorded and re-recorded, registered and re-registered, filed and
re-filed at such times and places as may be required by law or
reasonably deemed advisable by Agent to create, preserve or protect the
priority hereof and of any lien created hereby upon the Mortgaged
Property or any part thereof; and Mortgagor shall from time to time do
and cause to be done all such things as may be required by Agent, or
required by law, including all things which may from time to time be
necessary under the Uniform Commercial Code of the Commonwealth of
Pennsylvania to fully create, preserve and protect the priority hereof
and of any lien created hereby upon said property. Mortgagor hereby
irrevocably appoints Agent, or any agent designated by Agent, the true
and lawful attorney-in-fact of Mortgagor, with full power of
substitution, to execute, acknowledge and deliver any such things on
behalf of Mortgagor which Mortgagor fails or refuses to do.
18. Right to Deal with Successor. Agent may, without notice to any person,
deal with any successor in interest of Mortgagor herein regarding this
Mortgage in all respects as it might deal with Mortgagor herein,
without in any way affecting the liability hereunder of any predecessor
in interest of the person so dealt with; and no sale of the premises
hereby mortgaged, nor any forbearance on the part of Agent, shall
operate to release, discharge, modify, change or affect the original
liability of any predecessor in interest of the equity owner at the
time of such sale or forbearance.
19. Acceleration of Debt. If there is an Event of Default, or if an event
occurs which pursuant to which Agent is entitled to exercise its rights
and remedies under the Guaranty, or if Mortgagor or Borrower delivers
to Agent a notice pursuant to 42 Pa.C.S.A ss.8143 electing to limit the
advances under the Loan Agreement, then, at the option of Agent, the
entire indebtedness hereby secured shall become immediately due and
payable without further notice.
20. Additional Rights of Agent.
20.1 Enter and Perform. Mortgagor authorizes Agent, in addition to all
other rights granted by law or by this Mortgage, or by any of the other
instruments executed in connection herewith, whenever and as long as any Event
of Default shall exist and remain uncured, and without notice beyond the notice,
if any, required to be given by the terms of such instrument, to enter and take
possession of all or any part of the Mortgaged Property and to use, lease,
operate, manage and control the same and conduct the business thereof, and
perform lessor's obligations under any lease or the seller's obligations under
any Purchase and Sale Agreement or Mortgagor's obligations under any other
agreement affecting all or any part of the Mortgaged Property, perform the
obligations of the seller under any contracts, and collect the rents, profits
and all receipts of every nature therefrom as Agent shall deem best.
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20.2 Repairs and Improvements. Upon every such entry pursuant to
Section 20.1, Agent may from time to time at the expense of Mortgagor make all
such repairs, replacements, alterations, additions and improvements to the
Mortgaged Property as Agent may deem necessary, but in no event shall Agent be
obligated to do so, and may, but shall not be obligated to, exercise all rights
and powers of Mortgagor, either in the name of Mortgagor, or otherwise as Agent
shall determine. Without limitation, express or implied, upon the generality of
the foregoing, Agent shall have the right to do all things necessary in order to
keep in full force and effect all applicable licenses, permits and
authorizations and any amendments thereto.
20.3 Pay Costs and Expenses. Upon such entry pursuant to Section 20.1,
Agent may, at its option, but without any obligation to do so, do any one or
more of the following: pay and incur all expenses necessary for the holding and
operating of the Mortgaged Property, the conduct of any business thereon, the
maintenance, repair, replacement, alteration, addition and improvement of the
Mortgaged Property, including without limitation payments of taxes, assessments,
insurance, wages of employees connected with the Mortgaged Property or any
business conducted thereon, charges and reasonable compensation for services of
Agent, its attorneys and accountants and all other persons engaged or employed
in connection with the Mortgaged Property or of any business conducted thereon
and, in addition, Agent, at its option, may, but shall not be obligated to, make
payments or incur liability with respect to obligations arising prior to the
date it takes possession.
20.4 Add to Secured Indebtedness. All obligations so paid or incurred
by Agent pursuant to Section 20.3 shall be reimbursed or paid for by Mortgagor
upon demand, and prior to the repayment thereof shall be added to the debt
secured hereby and shall bear interest at the Default Rate, and shall be secured
hereby equally and ratably. Agent may also reimburse itself therefor from the
income or receipts of the Mortgaged Property or any business conducted thereon,
or from the sale of all or any portion of the Mortgaged Property. Agent may also
apply toward any of the Obligations any tax or insurance reserve account,
deposit or any sum credited or due from Agent to Mortgagor without first
enforcing any other rights of Agent against Mortgagor or against any endorser or
other guarantor or against the Mortgaged Property.
20.5 Attorney-In-Fact. Mortgagor hereby irrevocably constitutes and
appoints Agent, or any agent designated by Agent, for so long as this Mortgage
remains undischarged of record, as attorney-in-fact of Mortgagor to execute,
acknowledge, seal and deliver all instruments, agreements, deeds, certificates
and other documents of every nature and description in order to carry out or
implement the exercise of Agent's rights under this Section 20.
21. Setoff. Subject to the terms of this Section 21, Mortgagor hereby
grants to Agent and each of the Lenders, a lien, security interest and
right of setoff as security for all liabilities and obligations to
Agent and the Lenders, whether now existing or hereafter arising, upon
and against all deposits, credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control of Agent
or any Lender or any entity under the control of Fleet Financial Group,
Inc., or in transit to any of them. At any time, from and after the
occurrence of and during the continuance of an Event of Default, Agent
or any Lender may set off the same or any part thereof and apply the
same to any liability or obligation of Mortgagor even though unmatured
and regardless of the adequacy of any other collateral securing the
Loan. Within five (5) Business Days of making any such set-off, Agent
agrees to notify Mortgagor thereof, provided that the failure by Agent
to give such notice shall not affect the validity of such set-off. ANY
AND ALL RIGHTS TO REQUIRE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS,
CREDITS OR OTHER PROPERTY OF THE MORTGAGOR, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
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22. Contest of Laws. Mortgagor shall have the right to contest by
appropriate legal proceedings the validity of any legal requirements
affecting the Mortgaged Property in accordance with the provisions of
Section 9.1 of the Loan Agreement.
23. Notices. Any demand, notice or request by either party to the other
shall be given in the manner provided therefor in the Loan Agreement.
24. Agent/Lender Not Obligated; Cumulative Rights. Nothing in this
instrument shall be construed as obligating Agent or any Lender to take
any action or incur any liability with respect to the Mortgaged
Property or any business conducted thereon, and all options given to
Agent are for its benefit and shall and may be exercised in such order
and in such combination as Agent in its sole discretion may from time
to time decide.
25. Severability. In case any one or more of the provisions of this
Mortgage, the Guaranty, the Assignment of Leases and Rents, the
Environmental Indemnity, or any of the other Loan Documents, or any
other agreement now or hereafter executed in connection with any one or
more of the foregoing are held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall
not affect any other provision hereof. Each of the provisions of every
such agreement, document or instrument shall be enforceable by Agent to
the fullest extent now or hereafter not prohibited by applicable law.
26. No Waiver. No consent or waiver, express or implied, by Agent to or of
any Default by Mortgagor shall be construed as a consent or waiver to
or of any other Default at the same time or upon any future occasion.
27. Foreclosure and Other Remedies. From and after the occurrence of and
during the continuance of an Event of Default, Agent may institute an
action of mortgage foreclosure, or take such other action at law or in
equity for the enforcement of this Mortgage and realization on the
mortgage security or any other security herein or elsewhere provided
for, as the law may allow, and may proceed therein to final judgment
and execution for the entire unpaid balance of the indebtedness secured
hereby, with interest at the rate(s) stipulated in the Loan Agreement,
together with all other sums due in accordance with the provisions of
the Loan Agreement, including all sums which may be advanced after the
date of this Mortgage, all sums which may have been advanced by the
Agent for taxes, water or sewer rents, other lienable charges or
claims, insurance or repairs or maintenance of the Mortgaged Property
after the date of this Mortgage (including the period after the entry
of any judgment in mortgage foreclosure or other judgement entered
pursuant to this Mortgage or the Loan Agreement), and all costs of
suit, including reasonable counsel fees. From and after the occurrence
of and during the continuance of an Event of Default, Mortgagor
authorizes Agent at its option to foreclose this Mortgage subject to
the rights of any tenants of the Mortgaged Property, and the failure to
make any such tenants parties to any such foreclosure proceedings and
to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceedings instituted by Agent to recover the
indebtedness secured hereby or any deficiency remaining unpaid after
the foreclosure sale of the Mortgaged Property.
In connection with the exercise of Agent's rights above, Mortgagor
hereby authorizes and empowers any attorney of any court of record in
the Commonwealth of Pennsylvania or elsewhere, as attorney for Agent
and all persons claiming under or through Agent, to appear for and
confess judgment in ejectment against Mortgagor for the possession of
the Mortgaged Property and to appear for and confess judgment against
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Mortgagor and against all persons claiming under or through Mortgagor,
in favor of Agent, for recovery by Agent of possession thereof, for
which this Mortgage, or a copy thereof verified by affidavit, shall be
a sufficient warrant; and thereupon a writ of possession may
immediately issue for possession of the Mortgaged Property, without any
prior writ or proceeding whatsoever and without any stay of execution.
If for any reason after such action has been commenced it shall be
discontinued, or possession of the Mortgaged Property shall remain in
or be restored to Mortgagor, Agent shall have the right for the same
default or any subsequent default to bring one or more further actions
as above provided to recover possession of the Mortgaged Property.
Agent may confess judgment in ejectment therein before or after the
institution of proceedings to foreclose this Mortgage or to enforce the
Loan Documents, or after entry of judgment on this Mortgage or on the
other Loan Documents executed in connection therewith, or after a
sheriff's sale of the Mortgaged Property in which Agent or any Lender
is the successful bidder. The authorization to pursue such proceedings
for obtaining possession is an essential part of the enforcement of
this Mortgage, or the other Loan Documents, and shall survive any
execution sale to Agent.
28. Post-Judgment Remedies. Mortgagor authorizes Agent, at its option after
entry of any judgment in mortgage foreclosure pursuant to this Mortgage
and/or any judgment, by confession or otherwise, pursuant to the Loan
Agreement, to petition the court in which such judgment was entered to
reassess damages and/or modify such judgment to include (i) all sums
which may have been advanced or paid by Agent or any Lender after the
entry of such judgment for, or are otherwise due and payable for,
taxes, water and sewer rents, other lienable charges or claims,
attorneys' fees and costs, insurance for or repairs to or maintenance
of the Mortgaged Property and (ii) additional accrued interest at the
highest rate of interest provided for under the Loan Agreement.
29. Waivers By Mortgagor. Mortgagor, to the fullest extent that Mortgagor
may do so, hereby: (a) agrees that Mortgagor will 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 appraisement, valuation,
stay or extension, or any redemption after foreclosure sale, and waives
and releases all rights of redemption after foreclosure sale,
valuation, appraisement, stay of execution, notice of election to
mature or declare due the debt secured hereby; and (b) waives all
rights to a marshalling of the assets of Mortgagor, including the
Mortgaged Property, or to a sale in inverse order of alienation in the
event of a sale hereunder of the Mortgaged Property, and agrees not to
assert any right under any statute or rule of law pertaining to the
marshalling of assets, sale in inverse order of alienation, or other
matters whatever to defeat, reduce or affect the right of Agent under
the terms of this Mortgage to a sale of the Mortgaged Property.
30. Business Loan; Not Personal Residence. Mortgagor covenants, warrants
and represents that all of the proceeds of the Loan secured hereby
shall be used for business or commercial purposes, none of the proceeds
of the Loan secured hereby shall be used for personal, family or
household purposes, and that no individual liable for the Loan resides
or intends to reside in any portion of the Mortgaged Property.
31. Certification. The undersigned hereby certifies that Mortgagor is a
duly organized, validly existing limited liability company organized
and in good standing under the laws of the State of Delaware, and that
the execution and delivery hereof and of all of the other instruments
executed in connection herewith by Mortgagor has been duly authorized
by all requisite limited liability company actions of Mortgagor.
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32. Headings. Headings and captions in this Mortgage are for convenience
and reference only and the words and phrases contained therein shall in
no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of any of the provisions
hereof.
33. Time of Essence. Time shall be of the essence of each and every
provision of this Mortgage and each of the other instruments executed
herewith.
34. Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury Trial.
34.1 Substantial Relationship. It is understood and agreed that all of
the Loan Documents were delivered in the Commonwealth of Massachusetts, which
Commonwealth the parties agree has a substantial relationship to the parties and
to the underlying transactions embodied by the Loan Documents.
34.2 Place of Delivery. Mortgagor agrees to furnish to Agent at Agent's
office in Boston, Massachusetts all further instruments, certifications and
documents to be furnished hereunder, if any.
34.3 Governing Law. This Mortgage, except as otherwise provided in
Section 34.4, and each of the other Loan Documents shall in all respects be
governed, construed, applied and enforced in accordance with the internal laws
of the Commonwealth of Massachusetts without regard to principles of conflicts
of law, except insofar as formation of the Mortgagor under Delaware law requires
Delaware law to apply with respect to matters of authorization to enter into the
transaction contemplated by this Mortgage.
34.4 Exceptions. Notwithstanding the foregoing choice of law:
(a) the procedures governing the enforcement by Agent and
each of the Lenders of its foreclosure and other
remedies against Mortgagor under this Mortgage and
under the other Loan Documents with respect to the
Mortgaged Property or other assets situated in the
Commonwealth of Pennsylvania, including by way of
illustration, but not in limitation, actions for
foreclosure, for injunctive relief or for the
appointment of a receiver shall be governed by the
laws of the Commonwealth of Pennsylvania;
(b) Agent and each of the Lenders shall comply with
applicable law in the Commonwealth of Pennsylvania to
the extent required by the law of such jurisdiction
in connection with the foreclosure of the security
interests and liens created under this Mortgage and
the other Loan Documents with respect to the
Mortgaged Property or other assets situated in the
Commonwealth of Pennsylvania; and
(c) provisions of Federal law and the law of the
Commonwealth of Pennsylvania shall apply in defining
the terms Hazardous Materials, Environmental Legal
Requirements and Legal Requirements applicable to the
Mortgaged Property as such terms are used in this
Mortgage, the Environmental Indemnity and the other
Loan Documents.
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Nothing contained herein or any other provisions of the Loan Documents
shall be construed to provide that the substantive laws of the
Commonwealth of Pennsylvania shall apply to any parties' rights and
obligations under any of the Loan Documents, which, except as expressly
provided in clauses (a), (b) and (c) of this Section 34.4, are and
shall continue to be governed by the substantive law of Commonwealth of
Massachusetts. In addition, the fact that portions of the Loan
Documents may include provisions drafted to conform to the law of the
Commonwealth of Pennsylvania is not intended, nor shall it be deemed,
in any way, to derogate the parties' choice of law as set forth or
referred to in this Mortgage, or in the other Loan Documents. The
parties further agree that the Agent may enforce its rights under the
Loan Documents including, but not limited to, its rights to xxx the
Mortgagor or to collect any outstanding indebtedness in accordance with
applicable law.
34.5 Consent to Jurisdiction. Mortgagor hereby consents to the
nonexclusive personal jurisdiction in any state or Federal court located within
the Commonwealth of Massachusetts.
34.6 JURY TRIAL WAIVER. MORTGAGOR, AGENT, AND EACH OF THE LENDERS
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS MORTGAGE, ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR MORTGAGOR, AGENT AND
EACH OF THE LENDERS TO ENTER INTO THE TRANSACTIONS CONTEMPLATED HEREBY.
35. Advance Money Mortgage. This Mortgage secures future advances made
pursuant to the Loan Agreement, which future advances are guarantied by
the Mortgagor pursuant to the Guaranty. Without limiting the foregoing,
this Mortgage secures all advances made by Agent or any Lender of any
kind or nature described in 42 Pa. C.S.ss.8144. The maximum principal
amount that may be secured by this Mortgage is $100,000,000.00, plus
all advances made pursuant to any provisions of the Mortgage; provided
that in no event shall any Lender be obligated to advance in excess of
the stated principal amount of the Note evidencing the indebtedness
secured hereby. If Mortgagor sends a written notice to Agent or any
Lender which purports to limit the indebtedness secured by this
Mortgage and to release the obligation of Agent or any Lender to make
any additional advances, such notice shall be ineffective as to any
future advances made: (i) to enable completion of Improvements on the
Mortgaged Property for which the Loan secured hereby was originally
made; (ii) to pay taxes, assessments, maintenance charges and insurance
premiums; (iii) for costs incurred for protection of the Mortgaged
Property or the lien of this Mortgage; (iv) expenses incurred by Agent
or any Lender by reason of a default of Mortgagor hereunder or under
the Loan Documents; and (v) any other costs incurred by Agent or any
Lender to protect and preserve the Mortgaged Property. It is the
intention of the parties hereto that any such advance made by Agent or
any Lender after any such notice by Mortgagor shall be secured by the
lien of this Mortgage on the Mortgaged Property.
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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly
executed and delivered at as a sealed instrument as of the _____ day of March,
2004.
MORTGAGOR: CEDAR XXXXXX, LLC
By: ______________________________
Name: ______________________________
Title: ______________________________
STATE OF __________________
COUNTY OF ________________
And now, this ____ day of March, 2004, before me, the undersigned
Notary Public, personally appeared _______________, who acknowledged
himself/herself to be the _____________________ of Cedar Xxxxxx, LLC, a Delaware
limited liability company, and that he/she, as such ____________________ being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of Cedar Xxxxxx, LLC, by himself/herself as
_________________.
In witness whereof, I hereunder set my hand and official seal.
_____________________________
Notary Public
My commission expires:
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EXHIBIT "A" ANNEXED TO AND MADE A PART OF THE
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OPEN-END MORTGAGE AND SECURITY AGREEMENT
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LEGAL DESCRIPTION
-----------------
(See Attached)
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EXHIBIT "B" ANNEXED TO AND MADE A PART OF THE
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OPEN-END MORTGAGE AND SECURITY AGREEMENT
----------------------------------------
PERMITTED TITLE EXCEPTIONS
--------------------------
Those matters noted in Schedule B, Part I, of Agent's
Title Insurance Loan Policy
(___________________ Title Insurance Company Policy Number _______________)
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