================================================================================
EXHIBIT 10.50
MORTGAGE
from
CAMDEN XXXXX X.X.,
Mortgagor
to
GENERAL ELECTRIC POWER FUNDING CORPORATION,
Mortgagee
Dated as of February 4, 1992
THIS MORTGAGE ALSO CONSTITUTES A SECURITY
AGREEMENT UNDER THE UNIFORM COMMERCIAL CODE
================================================================================
After recording return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx
This Instrument Prepared by the Undersigned
in consultation with: Messrs. XxXxxxxx & English
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Signature /s/ Mardi X. Xxxxxxx
-------------------------
Mardi X. Xxxxxxx
TABLE OF CONTENTS
Page
----
1. Warranty of Title.................................................. 5
2. Payment of Indebtedness............................................ 5
3. Proper Care and Use; Inspection.................................... 6
4. Requirements....................................................... 7
5. Payment of Impositions............................................. 7
6. Insurance.......................................................... 9
7. Condemnation/Eminent Domain........................................ 11
8. Limitation on Disposition and Priority of Lien, Utilities.......... 11
9. Estoppel Certificates.............................................. 12
10. Expenses........................................................... 12
11. Mortgagee's Right to Perform....................................... 13
12. Further Assurances................................................. 13
13. Assignment of Rents................................................ 13
14. Events of Default.................................................. 14
15. Remedies........................................................... 15
16. Remedies Cumulative and Concurrent................................. 16
17. Discontinuance of Proceedings...................................... 17
18. Application of Proceeds............................................ 17
19. Successor Mortgagor................................................ 18
20. Security Agreement Under Uniform Commercial Code................... 18
21. Indemnification; Waiver of Claim................................... 19
22. No Waivers, Etc.................................................... 19
23. Waivers by Mortgagor............................................... 20
24. Trust Funds........................................................ 20
-i-
Page
----
25. Notices............................................................ 20
26. Taxes on Mortgages................................................. 21
27. No Modification; Binding Obligations............................... 21
28. Miscellaneous...................................................... 21
29. Captions........................................................... 22
30. Successors and Assigns............................................. 22
31. Enforceability..................................................... 22
32. RECEIPT OF COPY.................................................... 23
33. Loan Agreement..................................................... 23
34. Limitation of Liability............................................ 23
35. Release............................................................ 23
-ii-
MORTGAGE
THIS MORTGAGE dated as of February 4, 1992 from CAMDEN XXXXX X.X., a
Delaware limited partnership, ("Mortgagor"), having an office at c/o Cogen
Technologies, 1600 Xxxxx Street, Suit 0000, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, to
GENERAL ELECTRIC POWER FUNDING CORPORATION, a Delaware corporation
(""Mortgagee"), having an office at Xxx Xxxxx Xxxx, Xxxxxxxx Xxx, Xxxx 000,
Xxxxxxxxxxx, Xxx Xxxx, 00000. Unless otherwise defined herein, all capitalized
terms used herein shall have their respective meanings set forth in the "Loan
Agreement", as defined below.
WITNESSETH:
WHEREAS, Mortgagor is the owner in fee simple of certain tracts of land
located in Camden, Camden County, New Jersey and more particularly described in
Exhibit A attached hereto and made a part hereof (the "Land"); and
WHEREAS, pursuant to a Mortgage dated as of February 4, 1992 (the "First
Mortgage"), Mortgagor has granted to General Electric Capital Corporation, a New
York corporation, a mortgage lien on, among other collateral, the Land; and
WHEREAS, pursuant to the Term Loan Agreement dated as of February 15, 1990
between Cogen Technologies Linden, Ltd. ("Xxxxxx Xxxxx") and Mortgagee (as the
same has been, and hereafter may be amended, supplemented or otherwise modified
from time to time, the "Loan Agreement"), Mortgagee agreed, subject to the terms
and conditions set forth therein, to make Loans, from time to time, to Xxxxxx
Xxxxx, which are evidenced by the Notes; and
WHEREAS, Mortgagee is not currently obligated to make certain loans under
the Loan Agreement because certain conditions have not been met; and
WHEREAS, Mortgagee is willing to waive such conditions provided Mortgagor
executes and delivers this Mortgage;
NOW, THEREFORE, in consideration of the premises, the sum of ten dollars
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, Mortgagor hereby agrees as follows:
TO SECURE:
2
(a) (i) repayment of all amounts advanced and to be advanced and to be
advanced under the Notes, the terms of which are hereby made a part of this
Mortgage, (ii) payment of all interest (including interest on principal
after default), fees and expenses payable on the Notes or under the Loan
Agreement as provided in the Loan Agreement and (iii) payment of any and
all fees, costs and expenses, including, without limitation, attorney's
fees, incurred by Mortgagee in enforcing rights and remedies of Mortgagee
hereunder and under the Loan Agreement, the Notes and the Collateral
Security Documents (the items set forth in clauses (i), (ii) and (iii)
being referred to collectively as the "Indebtedness"); and
(b) performance of all covenants, agreements, obligations and
liabilities of Mortgagor and Xxxxxx Xxxxx (the "Obligations") under or
pursuant to the provisions of the Loan Agreement, the Notes, this Mortgage
and the other Loan Documents (as defined below) and any extensions,
renewals, restatements, replacements or modifications of any of the
foregoing (the Loan Agreement, the Notes, this Mortgage and the other
Collateral Security Documents and all other documents and instruments from
time to time evidencing, securing or guaranteeing the payment of the
Indebtedness or performance of the Obligations are collectively referred to
as the "Loan Documents");
Mortgagor hereby grants a security interest in, and hereby mortgages, conveys,
assigns, bargains, transfers and sets over to Mortgagee, the following property
and rights and interests in property (collectively, the "Mortgaged Property"):
A. the Land;
B. all right, title and interest of Mortgagor in and to any and all
buildings and improvements now or hereafter erected on the Land (the
"Improvements"; the Land, together with the Improvements, are hereinafter
collectively referred to as the "Real Estate");
C. all right, title and interest of Mortgagor, now owned or hereafter
acquired, in and to all streets, the land lying in the bed of any streets, roads
or avenues, opened or proposed, in front of, adjoining, or abutting the Real
Estate to the center line thereof and strips and gores within or adjoining the
Real Estate, the air space and right to use said air space above the Real
Estate, all rights of way, privileges, liberties, hereditaments, all easements
now or hereafter affecting or benefitting the Real Estate, all royalties and all
rights appertaining to the use and enjoyment of said Real Estate, including,
without limitation, all alley, vault, drainage, mineral, water, oil and gas
rights;
D. all and singular, the tenements, hereditaments and appurtenances
belonging or in anywise appertaining to the Real Estate, and the reversion or
reversions, remainder or remainders,
3
rents, issues, profits and revenue thereof; and also all the estate, right,
title, interest, dower and right of dower, curtesy and rights of curtesy,
property, possession, claim and demand whatsoever, both in law and equity, of
Mortgagor, of, in and to the Real Estate and of, in and to every part and parcel
thereof, with the appurtenances, at any time belonging to in anywise
appertaining thereto;
E. all of the legal fixtures of every kind and nature whatsoever currently
owned or hereafter acquired by Mortgagor, and all appurtenances and additions
thereto and substitutions or replacements thereof, now or hereafter attached to,
or intended to be attached to (though not attached thereto) the Real Estate or
placed on any part thereof (said legal fixtures of every kind and nature
whatsoever, and all appurtenances and additions thereto and substitutions or
replacements thereof, are hereinafter collectively referred to as the
"Equipment"), including, but without limiting the generality of the foregoing,
all fixtures and equipment as defined in the Uniform Commercial Code and
including, but without limiting the generality of the foregoing, all furnaces,
turbines, generators, plumbing, ventilating, air conditioning and air-cooling
apparatus, refrigerating, incinerating, and escalator, elevator, power, loading
and unloading equipment and systems, sprinkler systems and other fire prevention
and extinguishing apparatus and pipes, pumps, tanks, conduits, fittings and
fixtures; it being understood and agreed that all Equipment is appropriated to
the use of the Real Estate and, whether affixed or annexed or not, for the
purposes of this Mortgage shall be deemed conclusively to be Real Estate and
mortgaged hereby; and Mortgagor hereby agrees to execute and deliver, from time
to time, such further instruments (including security agreements), as may be
requested by Mortgagee to confirm the lien of this Mortgage on the Equipment;
F. all unearned premiums, accrued, accruing or to accrue under insurance
policies now or hereafter obtained by Mortgagor and Mortgagor's interest in and
to all proceeds of the conversion and the interest payable thereon, voluntary or
involuntary, relating to the Mortgaged Property, or any part thereof, into cash
or liquidated claims, including, without limiting the generality of the
foregoing, proceeds of casualty insurance, title insurance or any other
insurance maintained on the Real Estate and the Equipment, and the right to
collect and receive the same, and all awards and/or other compensation including
the interest payable thereon and the right to collect and receive the same (in
the alternative and collectively, "Awards"), heretofore and hereafter made to
the present and all subsequent owners of the Real Estate and the Equipment by
the United States, the State of New Jersey or any political subdivision thereof,
or any agency, department, bureau, board, commission, or instrumentality of any
of them, now existing or hereafter created (collectively, "Governmental
Authority") for the taking by eminent domain, condemnation or otherwise, of all
or any part of the Real Estate and Equipment or any easement or
4
other right therein, including, without limiting the generality of the
foregoing, Awards for any change or changes of grade or the widening of streets,
roads or avenues affecting the Real Estate, to the extent of all amounts which
may be secured by this Mortgage as of the date of receipt, notwithstanding the
fact that the amount thereof may not then be due and payable, and to the extent
of attorneys' fees, costs and disbursements incurred by Mortgagee in connection
with the collection of such Awards. Mortgagor hereby assigns to Mortgagee, and
Mortgagee is hereby authorized to collect and receive such Awards, and to give
proper receipts and acquittance therefor and, subject to the other provisions
hereof and the provisions of the Security Deposit Agreement, to apply the same
toward the Indebtedness, notwithstanding the fact that the full amount thereof
may not then be due and payable; Mortgagor hereby agrees, upon demand of
Mortgagee, to make, execute and deliver, from time to time, such further
instruments as may be reasonably requested by Mortgagee to confirm such
assignment of said Awards to Mortgagee, free and clear and discharged of any
encumbrances of any kind or nature whatsoever;
G. all extensions, improvements, betterments, renewals, substitutes and
replacements of, and all additions and appurtenances to, the Real Estate and the
Equipment, hereafter acquired by or released to Mortgagor (other than by
Mortgagee) or constructed, assembled or placed by Mortgagor on the Real Estate
(other than the "Modifications" referred to in Section 15 of the "Capital
Contribution Agreement", as defined in the Construction and Term Loan
Agreement", as defined in the Construction and Term Loan Agreement of even date
with this Mortgage between Mortgagor and General Electric Capital Agreement (the
"Camden Loan Agreement"), and all conversions of the security constituted
thereby, immediately upon such acquisition, release, construction, assembling,
placement or conversion, as the case may be, and in each such case, without any
further mortgage, conveyance, assignment or other act by Mortgagor, shall become
subject to the lien of this Mortgage as fully paid and completely, and with the
same effect, as though now owned by Mortgagor and specifically described herein;
H. all right, title and interest of Mortgagor in, to and under all leases,
subleases, underlettings, concession agreements and licenses of the Real Estate
and Equipment, or any part thereof, now existing or hereafter entered into by
Mortgagor (collectively, "Leases"), and all rights of Mortgagor in respect of
cash and securities deposited thereunder and the right to receive and collect
the benefits, revenues, income, rents, issues and profits thereof;
I. all right, title and interest of Mortgagor, to the extent permitted by
law, in, to and under (i) all consents, licenses and building permits required
for the construction, completion, occupancy and operation of the Real Estate;
(ii) all plans and specifications for the construction of the Real Estate,
including, without limitation, installations of curbs, sidewalks, gutters,
landscaping, utility connections and all fixtures and
5
equipment necessary for the construction, operation and occupancy of the
Improvements; and (iii) all contracts from time to time executed by Mortgagor
relating to the ownership, construction, maintenance, operation or occupancy of
the Real Estate together with all rights of Mortgagor to compel performance of
the terms of such contracts;
J. any and all monies now or hereafter on deposit for the payment of real
estate taxes or special assessments against the Real Estate or for the payment
of premiums on policies of fire and other hazard insurance covering the
Mortgaged Property; and
K. all rights of Mortgagor under or arising out of the Contracts described
on Schedule 1 and all Additional Contracts (as defined in the Camden Loan
Agreement), as any of the same may be amended, supplemented or otherwise
modified from time to time.
L. all proceeds, both cash and noncash, and products of the foregoing,
including, without limitation, all proceeds and products as defined in the
Uniform Commercial Code of the State of New Jersey, which may be realized upon
any sale or other disposition of any of the foregoing or produced therefrom;
TO HAVE AND TO HOLD the Mortgaged Property and the rights and privileges
hereby mortgaged or intended to be, unto Mortgagee, its successors and assigns
for the uses and purposes herein set forth, until the Indebtedness is fully paid
and the Obligations are fully paid or fully performed, as the case may be.
Mortgagor represents, warrants, covenants and agrees as follows:
1. Warranty of Title. Mortgagor warrants that it has and owns good and
marketable title to the Real Estate and has the right to mortgage the same; and
Mortgagor warrants that this Mortgage is a valid and enforceable lien on the
Mortgaged Property subject only to the First Mortgage and to Permitted Liens as
defined in the Camden Loan Agreement. Mortgagor hereby covenants that it shall
preserve such title and the validity and priority of the lien hereof and shall
forever warrant and defend the same to Mortgagee against the claims of all and
every person or persons, corporation or corporations and parties whomsoever
claiming or threatening to claim the same or any part thereof.
2. Payment of Indebtedness. Subject to the terms of Section 34 hereof,
Mortgagor shall cause Xxxxxx Xxxxx to pay the Indebtedness and shall perform and
shall cause Xxxxxx Xxxxx to perform, as applicable, all of the Obligations in
accordance with the terms of the Loan Documents.
6
3. Proper Care and Use; Inspection. (a) Mortgagor shall:
(i) not abandon the Mortgaged Property,
(ii) maintain the Facility (as defined in the Camden Loan Agreement)
in good working order and condition,
(iii) make all repairs, renewals and replacements to the Facility (as
defined in the Camden Loan Agreement) and additions and betterments thereto
which are necessary for the Facility (as defined in the Camden Loan
Agreement) to operate in compliance with the terms of the Basic Documents
(as defined in the Camden Loan Agreement), and in compliance with all Legal
Requirements (as hereinafter defined) affecting the Mortgaged Property and
all requirements of the appropriate Board of Fire Underwriters or other
similar body acting in and for the locality in which the Mortgaged Property
is located, except to the extent that the failure to comply with the terms
of the Basic Documents (as defined in the Camden Loan Agreement) could not
reasonably be expected to have a material adverse effect on the business,
properties, operations, condition (financial or otherwise) or prospects of
Mortgagor or the Mortgaged Property or on the ability of Mortgagor to
perform its obligations under the Basic Documents (as defined in the Camden
Loan Agreement) to which it is a party,
(iv) not commit or suffer waste with respect to the Mortgaged
Property,
(v) refrain from impairing or diminishing the value or integrity of
the Mortgaged Property or the security value of this Mortgage,
(vi) not remove, demolish or in any material respect alter any of the
Improvements, and
(vii) not make, suffer or permit any nuisance to exist on any of the
Mortgaged Property (the construction and operation of the Improvements
being deemed not to constitute a nuisance).
(b) Mortgagee and any persons authorized by Mortgagee shall have the right
to enter and inspect the Mortgaged Property and the right to inspect all work
done, labor performed and materials furnished in and about the Improvements and
the right to inspect and make copies of all books, contracts and records of
Mortgagor relating to the Mortgaged Property, all at such reasonable times
during business hours and at such intervals as Mortgagee may request. Mortgagor
authorizes Mortgagee to communicate directly with its accountants and with any
other entity keeping its book and records. If an Event of Default (as
hereinafter defined) shall have occurred and be continuing, Mortgagee and any
persons authorized by Mortgagee may (without
7
being obligated to do so) enter or cause entry to be made upon the Real Estate
and inspect, repair and/or maintain the same as Mortgagee may deem necessary or
advisable, and may (without being obligated to do so) make such expenditures and
outlays of money as Mortgagee may deem appropriate for the preservation of the
Mortgaged Property. All expenditures and outlays of money made by Mortgagee
pursuant hereto shall be added to the Indebtedness and shall be secured hereby
and shall be payable on demand together with interest at an interest rate equal
to the lower of (i) the highest rate allowed by applicable law and (ii) an
interest rate per annum equal to 2% plus the Fixed Interest Rate (as defined in
the Loan Agreement) then applicable to the Fixed Rate Loans (such lower rate,
the "Default Rate") from the date of the expenditure or outlay until paid.
4. Requirements. Mortgagor, at Mortgagor's sole cost and expense, shall
promptly comply with, or cause to be complied with, and conform to all present
and future laws, statutues, codes, ordinances, judgments, decrees, injunctions,
rules, regulations and requirements pertaining to the Mortgaged Property,
including any applicable environmental, zoning or building, use and land use
laws, ordinances, rules or regulations and all covenants, restrictions and
conditions now or hereafter of record which may be applicable to it or to any of
the Mortgaged Property, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of any of the
Mortgaged Property (collectively, the "Legal Requirements"), except any Legal
Requirements (other than Relevant Environmental Laws (as defined in the Camden
Loan Agreement)), the non-compliance with which could not reasonably be expected
to (i) have a material adverse effect on the business, operations, property,
condition (financial or other) or prospects of Mortgagor or the rights or
interests of Mortgagee or (ii) materially adversely affect Mortgagor's ability
to perform its obligations under the Basic Documents (as defined in the Camden
Loan Agreement) to which it is a party.
5. Payment of Impositions. (a) Mortgagor shall pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or its income or
profit or on any of its property, including the Mortgaged Property, prior to the
date on which penalties attach thereto, and all lawful claims which, if unpaid,
might become a lien upon the property, including the Mortgaged Property (all of
the foregoing are hereinafter collectively referred to as the "Imposition").
Mortgagor shall have the right, at Mortgagor's sole cost and expense, to contest
in good faith the amount or validity of any such Imposition by proper
proceedings timely instituted, and may permit the Impositions so contested to
remain unpaid during the period of such contest if (i) Mortgagor has given prior
written notice to Mortgagee of Mortgagor's intent so to contest or object to an
Imposition, (ii) Mortgagor diligently prosecutes such contest, (iii) such
contested Imposition (other than any such Imposition which Mortgagor, with the
consent of the Required Lenders (as defined in the Camden Loan Agreement) (not
to be unreasonably
8
withheld), deems to be unmerited and not to require the setting aside of any
reserves) is included as an expense in the Construction Budget (as defined in
the Camden Loan Agreement) and, in the reasonable opinion of the Mortgagee after
giving effect to such expense, sufficient funds are projected to be available in
such Construction Budget to complete the Facility (as defined in the Camden Loan
Agreement) in accordance with subsection 7.1 of the Camden Loan Agreement, (iv)
during the period of such contest the enforcement of any contested Imposition is
effectively stayed; provided, however, that this clause (iv) shall apply to
contested income taxes of a Partner (as defined in the Camden Loan Agreement)
only if the failure to pay such tax may then become a lien on the Mortgaged
Property or may interfere with the operation of the Facility (as defined in the
Camden Loan Agreement) and (v) in the reasonable opinion of the Mortgagee, such
contest does not involve any substantial danger of the sale, forfeiture or loss
of any part of the Mortgaged Property, title thereto or any interest therein and
does not interfere with the operation of the Facility (as defined in the Camden
Loan Agreement). Mortgagor will promptly pay or cause to be paid any valid,
final judgment enforcing any such Imposition and cause the same to be satisfied
of record. Subject to the foregoing right of Mortgagor to contest any
Imposition, within thirty (30) days after the date when an Imposition is due and
payable, Mortgagor shall deliver to Mortgagee evidence acceptable to Mortgagee
showing payment of such Imposition. If by law any Imposition at Mortgagor's
option may be paid in installments (whether or not interest shall accrue on the
unpaid balance of such Imposition), Mortgagor may elect to pay such Imposition
in such installments and shall be responsible for the payment of such
installments with interest, if any.
(b) Except for the foregoing right of Mortgagor to contest any Imposition,
nothing herein otherwise shall affect any right or remedy of Mortgagee under
this Mortgage or otherwise, without notice or demand to Mortgagor, to pay any
Imposition after the date such Imposition shall have become due and to add to
the Indebtedness the amount so paid, together with interest thereon from the
date of such payment at the Default Rate. Any sums paid by Mortgagee in
discharge of any Imposition shall be (i) a lien on the Real Estate secured
hereby prior to any right or title to, interest in, or claim upon the Real
Estate subordinate to the lien of this Mortgage, and (ii) payable on demand
together with interest as set forth above.
(c) Mortgagor shall not claim, demand or be entitled to receive any credit
or credits towards the satisfaction of this Mortgage or on any interest payable
thereon for any taxes assessed against the Mortgaged Property or any part
thereof, and Mortgagor shall not claim any deduction from the taxable value of
the Mortgaged Property by reason of this Mortgage.
(d) Upon the occurrence and during the continuance of an Event of Default
hereunder, Mortgagor shall be entitled upon notice to Mortgagor to require
Mortgagor to pay to Mortgagee on a
9
specified day each month an amount equal to one-twelfth of the annual
Impositions reasonably estimated by Mortgagee so that Mortgagee shall have
sufficient funds to pay the Impositions on the first day of the month preceding
the month in which they become due. In such event, Mortgagor agrees to cause all
bills, statements or other documents relating to Impositions to be sent or
mailed directly to Mortgagee. Upon receipt of such bills, statements or other
documents, and providing Mortgagor has deposited sufficient funds with Mortgagee
pursuant to this paragraph, Mortgagee shall pay such amounts as may be due
thereunder out of the funds so deposited with Mortgagee. If at any time and for
any reason the funds deposited with Mortgagee are or will be insufficient to pay
such amounts as may then or subsequently be due, Mortgagee shall notify
Mortgagor and Mortgagor shall immediately deposit an amount equal to such
deficiency with Mortgagee. Notwithstanding the foregoing, nothing contained
herein shall cause Mortgagee to be deemed a trustee of said funds or to be
obligated to pay any amounts in excess of the amount of funds deposited with
Mortgagee pursuant to this paragraph or constitute any limitation on the rights
of Mortgagee upon the occurrence of such Event of Default. Mortgagor shall not
be entitled to receive interest on said funds. If amounts collected by Mortgagee
under this paragraph exceed amounts necessary in order to pay Impositions,
Mortgagee may impound or reserve for future payment of Impositions such portion
of such excess payments as Mortgagee in its absolute discretion may deem proper.
Should Mortgagor fail to deposit with Mortgagee sums sufficient to pay such
Impositions in full at least thirty (30) days before delinquency thereof,
Mortgagee may, at Mortgagee's election, but without any obligation so to do,
advance any amounts required to make up the deficiency, which advances, if any,
shall be added to the Indebtedness and shall be secured hereby and shall be
repayable to Mortgagee with interest at the Default Rate or at the option of
Mortgagee the latter may, without making any advance whatsoever, apply any sums
held by it upon any obligation of Mortgagor secured hereby.
6. Insurance. (a) Mortgagor shall comply in all respects with the terms
and provisions contained in subsection 7.5 of the Camden Loan Agreement, which
terms and provisions are hereby incorporated in their entirety into this
Mortgage by reference thereto, as though expressly stated in this Mortgage.
(b) If Mortgagor is in default of its obligations to insure or deliver any
prepaid insurance policy or policies, then Mortgagee, at its option and without
notice, may effect such insurance from year to year, and pay the premium or
premiums therefor, and Mortgagor shall pay to Mortgagee such premium or premiums
so paid by Mortgagee with interest from the time of payment at the Default Rate,
on demand, and the same shall be deemed to be secured by this Mortgage and shall
be collectible in the same manner as the Indebtedness secured by this Mortgage.
(c) Mortgagor promptly shall comply with and conform to (i) all provisions
of each insurance policy, and (ii) all
10
requirements of the insurers applicable to Mortgagor or to any of the Mortgaged
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Mortgaged Property. Mortgagor
shall not use the Mortgaged Property, or conduct any activities on the Premises,
if such use or activities would permit any insurer to cancel any insurance
policy required to be maintained by the Camden Loan Agreement.
(d) If the Mortgaged Property or any part thereof is damaged or destroyed
by fire or any other cause, Mortgagor shall give prompt notice to Mortgagee and
all insurance proceeds shall be paid as provided in the Security Deposit
Agreement (as defined in the Camden Loan Agreement).
(e) In the event of foreclosure of this Mortgage or other transfer of
title to the Mortgaged Property in extinguishment of the Indebtedness, all
right, title and interest of Mortgagor in and to any insurance policies then in
force shall pass to the purchaser or grantee and Mortgagor hereby appoints
Mortgagee its attorney-in-fact, in Mortgagor's name, to assign and transfer all
such policies and proceeds to such purchaser or grantee.
(f) Upon the occurrence and during the continuance of an Event of Default
hereunder, Mortgagee shall be entitled upon notice to Mortgagor to require
Mortgagor to pay monthly in advance to Mortgagee the equivalent of 1/12th of the
estimated annual premiums due on such insurance. In such event, Mortgagor shall
cause all bills, statements or other documents relating to the insurance
premiums to be sent or mailed directly to Mortgagee. Upon receipt of such bills,
statements or other documents, and providing Mortgagor has deposited sufficient
funds with Mortgagee pursuant to this paragraph, Mortgagee shall pay such
amounts as may be due thereunder out of the funds so deposited with Mortgagee.
If at any time and for any reason the funds deposited with Mortgagee are or will
be insufficient to pay such amounts as may then or subsequently be due,
Mortgagee shall notify Mortgagor and Mortgagor shall immediately deposit an
amount equal to such deficiency with Mortgagee. Notwithstanding the foregoing,
nothing contained herein shall cause Mortgagee to be deemed a trustee of said
funds or to be obligated to pay any amounts in excess of the amount of funds
deposited with Mortgagee pursuant to this paragraph or constitute any limitation
on the rights of Mortgagee upon the occurrence of such Event of Default.
Mortgagor shall not be entitled to receive interest on said funds. If amounts
collected by Mortgagee under this paragraph exceed amounts necessary in order to
pay such premiums, Mortgagee may impound or reserve for future payment of
insurance premiums such portion of such excess payments as Mortgagee in its
absolute discretion may deem proper. Should Mortgagor fail to deposit with
Mortgagee sums sufficient to pay in full such insurance premiums at least 30
days before delinquency thereof, Mortgagee may, at Mortgagee's election, but
without any obligation so to do, advance any amounts required to make up the
deficiency, which advances, if any, shall be payable on demand by Mortgagor with
11
interest thereon at the Default Rate, or at the option of Mortgagee the latter
may, without making any advance whatsoever, apply any sums held by it upon any
obligation of Mortgagor secured hereby.
7. Condemnation/Eminent Domain. Immediately upon obtaining knowledge of
the institution of any proceedings for the condemnation of the Mortgaged
Property, or any portion thereof, Mortgagor will notify Mortgagee of the
pendency of such proceedings. Mortgagee, at Mortgagee's option and in
Mortgagee's sole discretion, shall have the right to commence, appear in and
prosecute, jointly with Mortgagor, any action or proceeding relating to any
condemnation of the Mortgaged Property, or any portion thereof at its sole cost
and expense. Mortgagor shall not, without Mortgagee's written consent, settle or
compromise any claim in connection with such condemnation. If Mortgagee elects
not to participate in such condemnation proceeding, then Mortgagor shall, at its
expense, diligently prosecute any such proceeding and shall consult with
Mortgagee, its attorneys and experts and cooperate with them in any defense of
any such proceedings. All awards and proceeds of condemnation shall be assigned
to Mortgagee to be applied as provided in the Security Deposit Agreement (as
defined in the Camden Loan Agreement). Mortgagor agrees to execute any such
assignments of all such awards as Mortgagee may request.
8. Limitation on Disposition and Priority of Lien, Utilities. (a) Except
as permitted under the Camden Loan Agreement, without the prior written consent
of Mortgagee in each instance, Mortgagor shall not sell, assign, convey or
otherwise transfer or dispose of the Mortgaged Property or any part thereof or
interest therein, either voluntarily or involuntarily, by operation of law or
otherwise, and Mortgagor shall not contract to do any of the foregoing. Except
for Permitted Liens (as defined in the Camden Loan Agreement) and except as
permitted in Article 5 of this Mortgage and in the next following sentence,
Mortgagor shall not create, consent to or suffer the creation or existence of
any liens, charges or encumbrances (each, a "Prohibited Loan") on any of the
Mortgaged Property, whether or not such Prohibited Lien is superior or
subordinate to this Mortgage. Mortgagor shall pay when due all lawful claims and
demands of mechanics, materialmen, laborers and others which, if unpaid, might
result in, or permit the creation of a Prohibited Lien; provided that Mortgagor
shall have the right to contest in good faith any such Prohibited Lien by proper
proceedings timely instituted, and may permit such Prohibited Lien to exist
during the period of such contest if: (i) Mortgagor diligently prosecutes such
contest, (ii) such contested item (other than any such item which Mortgagor with
the consent of the Mortgagee (not to be unreasonably withheld), deems to be
unmerited and not to require the setting aside of any reserves) is included as
an expense in the Construction Budget (as defined in the Camden Loan Agreement)
and, in the reasonable opinion of the Mortgagee, after giving effect to such
expense, sufficient funds are projected to be available in such Construction
Budget to complete the Facility
12
(as defined in the Camden Loan Agreement) in accordance with subsection 7.1 of
the Camden Loan Agreement, (iii) during the period of such contest the
enforcement of any contested item and the Prohibited Lien relating thereto is
effectively stayed, and (iv) in the reasonable opinion of the Required Lenders
(as defined in the Camden Loan Agreement), such contest does not involve any
substantial danger of the sale, forfeiture or loss of any part of the Mortgaged
Property, title thereto or any interest therein and does not interfere with the
operation of the Facility (as defined in the Camden Loan Agreement). Mortgagor
will promptly pay or cause to be paid any valid, final judgment enforcing any
such item, cause the Prohibited Lien relating thereto to be removed and
otherwise cause such item to be satisfied of record.
(b) Mortgagor shall pay when due all utility charges which are incurred by
it for gas, electricity, water or sewer services and all other assessments or
charges of a similar nature, whether public or private and whether or not such
assessments or charges are liens on the Mortgaged Property.
(c) All Leases of the Mortgaged Property or any part thereof shall be
subordinate to the lien of this Mortgage.
9. Estoppel Certificates. Mortgagor, within ten (10) business days upon
request, shall deliver a written statement, duly acknowledged, setting forth the
amount of the Indebtedness, and whether any offsets, claims, counterclaims or
defenses exist against the Indebtedness secured by this Mortgage.
10. Expenses. Mortgagor shall pay all out-of-pocket expenses reasonably
incurred by Mortgages with respect to any and all transactions contemplated
herein and the preparation of any document reasonably required hereunder
including (without limiting the generality of the foregoing) all title and
conveyancing charges, recording and filing fees and taxes, mortgage taxes,
intangible personal property taxes, escrow fees, revenue and tax stamp expenses,
insurance premiums (including title insurance premiums), brokerage commissions,
finders' fees, placement fees, surveyors', appraisers' and attorneys' fees and
disbursements (subject to the limitation on attorneys' fees contained in
subsection 11.5 of the Camden Loan Agreement), and will reimburse to Mortgagee
all of the foregoing expenses paid by Mortgagee which have been or may be
reasonably incurred by Mortgagee with respect to any and all of the transactions
contemplated herein. In addition to the foregoing, if any action or proceeding
be commenced (including but not limited to any action to foreclose this Mortgage
or to collect the Indebtedness), to which action or proceeding Mortgagee is made
a party, or in which it becomes necessary to defend or uphold the lien of this
Mortgage, or in which Mortgage is served with any legal process, discovery
notice or subpoena relating to Mortgagee's lending to Mortgagor or accepting a
guaranty from a guarantor of the Indebtedness or of any of the Obligations,
Mortgagor will reimburse Mortgagee for all of the foregoing
13
expenses which have been or may be reasonably incurred by Mortgagee with respect
to the foregoing. All sums paid by Mortgagee for the expense of any litigation
to prosecute or defend the rights and lien created by this Mortgage or to appear
or to take action in response to any such legal process, discovery notice or
subpoena (including counsel fees and disbursements) shall be paid by Mortgagor,
together with interest thereon at the Default Rate, and any such sum and the
interest thereon shall be a lien on the Mortgaged Property, prior to any right,
or title to, interest in or claim upon the Mortgaged Property attaching or
accruing subsequent to the lien of this Mortgage, and shall be deemed to be
secured by this Mortgage. In any action to foreclose this Mortgage, or to
recover or collect the Indebtedness, the provisions of this Article with respect
to the recovery of costs, disbursements and allowances shall prevail unaffected
by the provisions of any law with respect to the same to the extent that the
provisions of this Article are not inconsistent therewith or violative thereof.
11. Mortgagee's Right to Perform. Upon the occurrence of an Event of
Default, Mortgagee, without waiving, or releasing Mortgagor from, any Event of
Default under this Mortgage, may (but shall be under no obligation to), at any
time perform any of the covenants or agreements of Mortgagor hereunder, and the
cost thereof, with interest at the Default Rate, shall immediately be due from
Mortgagor to Mortgagee, and the same shall be secured by this Mortgage and shall
be a lien on the Mortgaged Property prior to any right, title to, interest in or
claim upon the Mortgaged Property attaching subsequent to the lien of this
Mortgage. No payment or advance of money by Mortgagee under this Article shall
be deemed or construed to cure Mortgagor's default or waive any right or remedy
of Mortgagee hereunder.
12. Further Assurances. Mortgagor agrees, upon demand of Mortgagee, to do
any act or execute any additional documents (including, but not limited to,
security agreements on any personalty included or to be included in the
Mortgaged Property) as may be reasonably required by Mortgagor to confirm the
lien of this Mortgage.
13. Assignment of Rents. All of the rents, royalties, issues, profits,
revenue, income and other benefits of the Mortgaged Property arising from the
use and enjoyment by Mortgagor of all or any portion thereof or from any Lease
(the "Rents and Profits") are hereby absolutely and unconditionally assigned,
transferred, conveyed and set over to Mortgagee to be applied in accordance with
the terms of the Security Deposit Agreement (as defined in the Camden Loan
Agreement), and Mortgagor grants to Mortgagee the right to enter the Mortgaged
Property for the purpose of collecting the same and to let the Mortgaged
Property or any part thereof, and to apply the Rents and Profits in accordance
with the Security Deposit Agreement (as defined in the Camden Loan Agreement).
The foregoing assignment and grant shall continue in effect until the
Indebtedness is paid in full, but Mortgage hereby waives the right to enter the
14
Mortgaged Property for the purpose of collecting the Rents and Profits and
Mortgagor shall be entitled to collect, receive, use and retain the Rents and
Profits until the occurrence of an Event of Default under this Mortgage; such
right of Mortgagor to collect, receive, use and retain the Rents and Profits may
be revoked by Mortgagee upon the occurrence of any Event of Default by giving
not less than five days' written notice of such revocation to Mortgagor; in the
event such notice is given, Mortgagor shall pay over to Mortgagee, or to any
receiver appointed to collect the Rents and Profits, any lease security deposits
(which security deposits shall be held in trust and not co-mingled with
Mortgagee's other funds), and shall pay monthly in advance to Mortgagee, or to
any such receiver, the fair and reasonable rental value for the use and
occupancy of the Mortgaged Property or of such part thereof as may be in the
possession of Mortgagor, and upon default in any such payment will vacate and
surrender the possession of the Mortgaged Property to Mortgagee or to such
receiver, and in default thereof may be evicted by summary proceedings.
Mortgagor shall not accept prepayments of installments of Rent and Profits to
become due for a period of more than one month in advance (except for security
deposits and estimated payments of percentage rent, if any).
14. Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default" by Mortgagor hereunder:
(a) the occurrence of any event which would constitute an event of default
under the Loan Agreement;
(b) if Mortgagor sells, transfers, assigns or conveys the Mortgaged
Property or any part thereof or interest therein (by operation of law or
otherwise) or if Mortgagor further mortgages, pledges or otherwise encumbers
the Mortgaged Property or any part thereof or any interest therein or creates
or suffers to exist any lien, charge or other encumbrance on the Mortgaged
Property or any part thereof, whether superior or subordinate to the lien of
this Mortgage, whether recourse or nonrecourse, except for Permitted Liens
(as defined in the Camden Loan Agreement) and the First Mortgage; or
(c) a failure to (i) keep in force the insurance required by the Camden
Loan Agreement or (ii) comply with and conform to all provisions and
requirements of the insurance policies and the insurers thereunder which
would affect the Mortgagor's ability to keep in force the insurance required
by the Camden Loan Agreement or to collect any proceeds therefrom; or
(d) upon default, ten days after request, either in assigning and
delivering the policy or policies of insurance described in the Camden Loan
Agreement or in reimbursing
15
Mortgagee for premiums paid on such insurance, together with interest
thereon, as provided herein; or
(e) the holder of any other mortgage lien on the Real Estate shall
commence any action to foreclose such lien or to otherwise enforce any of
its rights under its mortgage.
15. Remedies. Upon the occurrence of an Event of Default hereunder,
(i) if such event is an Event of Default specified in paragraph (e) or (f) of
Section 8 of the Loan Agreement, then during the continuance of such Event of
Default, automatically and without notice the Indebtedness and all amounts owing
under this Mortgage shall immediately become due and payable, and (ii) if such
event is an Event of Default other than those specified in paragraph (e) or (f)
of Section 8 of the Loan Agreement, Mortgagee may declare the Indebtedness and
all amounts owing under this Mortgage to be immediately due and payable without
presentment, demand, protest or notice of any kind, and Mortgagee personally, or
by its agents or attorneys, may take such action, without notice or demand, as
it deems advisable to protect and enforce Mortgagee's rights against Mortgagor
in and to the Mortgaged Property, including, but not limited to, the following
actions:
(a) enter upon and take possession of the Mortgaged Property, and
lease and let the Mortgaged Property, or any part thereof, and receive all
the Rents and Profits thereof which are overdue, due or to become due, and
apply the same, after payment of all reasonably necessary charges and
expenses, on account of the amounts hereby secured, and the Mortgagee is
hereby given and granted full power and authority to do any act or thing
which Mortgagor might or could do in connection with the management and
operation of the Mortgaged Property. This covenant becomes effective
either with or without any action brought to foreclose this Mortgage and
without applying at any time for a receiver of such rents;
(b) institute an action of mortgage foreclosure, or take other
action as the law may allow, at law or in equity, for the enforcement of
this mortgage, and proceed thereon to final judgment and execution of the
entire unpaid balance of the Indebtedness including costs of suit,
interest and reasonable attorneys' fees. In case of any sale of the
Mortgaged Property by virtue of judicial proceedings, the Mortgaged
Property may be sold in one parcel and as an entirety or in such parcels,
manner or order as the Mortgagee in its sole discretion may elect;
(c) institute partial foreclosure proceedings with respect to the
portion of the Indebtedness so in default, as if under a full foreclosure,
and without declaring the entire Indebtedness due, provided that if
foreclosure sale is made because of default of a part of the Indebtedness,
such sale may be made subject to the continuing lien of this
16
Mortgage for the unmatured part of the Indebtedness; and it is agreed that
such sale pursuant to a partial foreclosure, if so made, shall not in any
manner affect the unmatured part of this Mortgage and the lien thereof
shall remain in full force and effect just as though no foreclosure sale
had been made under the provisions of this subsection. Notwithstanding the
filing of any partial foreclosure or entry of a decree of sale therein,
Mortgagee may elect at any time prior to a foreclosure sale pursuant to
such decree, to discontinue such partial foreclosure and to accelerate the
Indebtedness by reason of any uncured default or defaults upon which such
partial foreclosure was predicated or by reason of any other defaults, and
proceed with full foreclosure proceedings. It is further agreed that
several foreclosure sales may be made pursuant to partial foreclosures
without exhausting the right of full or partial foreclosure sale for any
unmatured part of the Indebtedness, it being the purpose to provide for a
partial foreclosure sale of the secured Indebtedness of any matured
portion of the secured Indebtedness without exhausting the power to
foreclose and to sell the Mortgaged Property pursuant to any such partial
foreclosure for any other part of the secured Indebtedness whether matured
at the time or subsequently maturing; and without exhausting any right of
acceleration and full foreclosure;
(d) appoint a receiver of the Rents and Profits of the Mortgaged
Property without the necessity of proving either the depreciation or the
inadequacy of the value of the security or the insolvency of Mortgagor or
any person who may be legally or equitably liable to pay moneys secured
hereby and Mortgagor and each such person waives such proof and hereby
consents to the appointment of a receiver;
(e) institute an action for specific performance of any covenant
contained herein or in aid of the execution of any power herein granted;
(f) if Mortgagor is occupying the Mortgaged Property, or any part
thereof, it is hereby agreed that the said occupants shall pay such
reasonable rental monthly in advance as the Mortgagee shall demand for the
Mortgaged Property, or the part so occupied, and for the use of Equipment
covered by this Mortgage;
(g) apply on account of the unpaid Indebtedness and the interest
thereon or on account of any arrearages of interest thereon, or on account
of any balance due to the foreclosure sale of the Mortgaged Property, or
any part thereof, any unexpended moneys still retained by the Mortgagee
that were paid by Mortgagor to the Mortgagee pursuant to Article 6(d)
hereof;
17
(h) exercise any and all other rights and remedies granted under
this Mortgage or now or hereafter existing in equity, at law, by virtue of
statute or otherwise.
16. Remedies Cumulative and Concurrent. Mortgages shall be entitled
to enforce payment and performance of any Indebtedness or Obligations secured
hereby and to exercise all rights and powers under this Mortgage or other
agreement or any laws now or hereafter in force, notwithstanding some or all of
the Indebtedness and Obligations may nor or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise.
Neither the acceptance of this Mortgage nor its enforcement, whether by court
action or pursuant to the power of sale or other powers herein contained, shall
prejudice or in any manner affect Mortgagee's right to realize upon or enforce
any other securities now or hereafter held by Mortgagee, it being agreed that
Mortgagee shall be entitled to enforce this Mortgage and any other security now
or hereafter held by Mortgagee in such order and manner as Mortgagee may in its
absolute discretion determine. No remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given to Mortgagee or to which
Mortgagee may be otherwise entitled, may be exercised, concurrently or
independently against each Mortgagor or against the Mortgaged Property, or
either of them, from time to time and as often as may be deemed expedient by
Mortgagee. The failure to exercise any such power or remedy will not be
construed as a waiver or release of that power or remedy.
17. Discontinuance of Proceedings. If Mortgagee has proceeded to
enforce any right under the Note, the Loan Agreement, or this Mortgage and such
proceedings have been discontinued or abandoned for any reason, then in every
such case, Mortgagor and Mortgagee will be restored to their former positions
and the rights, remedies and powers of Mortgagee will continue as if no such
proceedings had been taken.
18. Application of Proceeds. The proceeds of any sale of all or any
portion of the Mortgaged Property upon foreclosure and the earnings of any
holding, leasing, operation or other use of the Mortgaged Property following any
Event of Default will be applied by Mortgagee as follows:
First: To the payment of the costs and expenses of any such sale or
of any such holding, leasing, operation or other use and of any judicial
proceeding wherein any sale may be made, and all expenses, advances,
liabilities and sums made or furnished or incurred by Mortgagee,
including, without limitation, receiver's, accountants' and attorneys'
fees and all taxes, assessments or other charges, except any taxes,
assessments or other charges subject to which the Mortgaged Property shall
have been sold.
18
Second: To the payment of the amount secured by the First Mortgage.
Third: To the payment of the Indebtedness secured hereby.
Fourth: To the payment of any other sums required to be paid pursuant
to any provision of this Mortgage, the Note or the Loan Agreement.
Fifth: The balance, if any, to whomsoever may be lawfully entitled to
receive the same.
19. Successor Mortgagor. In the event ownership of the Mortgaged
Property or any portion thereof becomes vested in a person other than the
Mortgagor herein named, Mortgagee may, without notice to the Mortgagor herein
named, whether or not Mortgagee has given written consent to such change in
ownership, deal with such successor or successors in interest with reference to
this Mortgage and the indebtedness secured hereby, and in the same manner as
with the Mortgagor herein named, without in any vitiating or discharging the
Mortgagor's liability hereunder or under the Indebtedness.
20. Security Agreement Under Uniform Commercial Code. Mortgagor and
Mortgagee agree that this Mortgage shall constitute a Security Agreement within
the meaning of the Uniform Commercial Code of the State of New Jersey
(hereinafter in this paragraph referred to as the "Code") with respect to (i)
any and all sums at any time on deposit or held by Mortgagee pursuant to any of
the provisions of this Mortgage ("Deposits") and (ii) with respect to any goods
or property included in the definition of the term "Mortgaged Property", which
goods or property may not be deemed to form a part of the Real Estate described
in Exhibit A hereto or may not constitute a "fixture" (within the meaning of
Section 9-313 of the Code), and all replacements of such property, substitutions
for such property, additions to such property, and the proceeds thereof (all of
said property and the replacements, substitutions, and additions thereto and the
proceeds thereof being sometimes hereinafter collectively referred to as the
"Collateral"), and that a security interest in and to the Collateral is hereby
granted to Mortgagee, and the Collateral and all of Mortgagor's right, title and
interest therein are hereby assigned to Mortgagee, to secure the Indebtedness
and Obligations. Upon the occurrence and during the continuance of an Event of
Default under this Mortgage, Mortgagee, pursuant to the appropriate provisions
of the Code, shall have the option of proceeding with respect to the Collateral
as to both real and personal property in accordance with its rights and remedies
with respect to the real property, in which event the default provisions of the
Code shall not apply. The parties agree that, in the event Mortgagee shall elect
to proceed with respect to the Collateral separately from the real property, ten
(10) days' notice of the sale of the Collateral shall be reasonable notice. The
expenses of retaking,
19
holding, preparing for sale, selling and the like incurred by Mortgagee shall
include, but not be limited to, attorneys' fees and expenses incurred by
Mortgagee. Mortgagor agrees that, without the written consent of Mortgagee,
Mortgagor will not remove or permit to be removed from the Real Estate any of
the Collateral. Mortgagor shall, from time to time, on request of Mortgagee,
deliver to Mortgagee an inventory of the Collateral in reasonable detail.
Mortgagor covenants and represents that all Collateral now is, and that all
replacements thereof, substitutions therefor or additions thereto, will be, free
and clear of liens, encumbrances, or the security interest of others, other than
Permitted Liens (as defined in the Camden Loan Agreement).
21. Indemnification; Waiver of Claim. (a) If Mortgagee is made a party
defendant to any litigation concerning this Mortgage or the Mortgaged Property
or any part thereof or interest therein, or the occupancy thereof by Mortgagor,
then Mortgagor shall indemnify, defend and hold Mortgagee harmless from all
liability by reason of said litigation (other than that arising solely from
Mortgagee's own willful misconduct or gross negligence), including attorneys'
fees and expenses incurred by Mortgagee in any such litigation, whether or not
any such litigation is prosecuted to judgment. If Mortgagee commences an action
against Mortgagor to enforce any of the terms hereof or because of the breach by
Mortgagor of any of the terms hereof, or for the recovery of any sum secured
hereby, Mortgagor shall pay to Mortgagee attorneys' fees and expenses, together
with interest thereon at the Default Rate from the date the same are paid by
Mortgagee to the date of reimbursement by Mortgagor, and the right to such
attorneys' fees and expenses shall be deemed to have accrued on the commencement
of such action, and shall be enforceable whether or not such action is
prosecuted to judgment. If an Event of Default shall have occurred, Mortgagee
may engage an attorney or attorneys to protect its rights hereunder, and in the
event of such engagement, Mortgagor shall pay Mortgagee attorneys' fees and
expenses incurred by Mortgagee, whether or not an action is actually commenced
against Mortgagor by reason of breach.
(b) Mortgagor waives any and all right to claim or recover against
Mortgagee, its officers, employees, agents and representatives, for loss of or
damage to Mortgagor, the Mortgaged Property, Mortgagor's property or the
property of others under Mortgagor's control from any cause whatsoever, except
for the willful misconduct or gross negligence of Mortgagee, its officers,
employees, agents or representatives.
22. No Waivers, Etc. Any failure by Mortgagee to insist upon the strict
performance by Mortgagor of any of the terms and provisions of this Mortgage
shall not be deemed to be a waiver of any of the terms and provisions hereof,
and Mortgagee, notwithstanding any such failure, shall have the right thereafter
to insist upon the strict performance by Mortgagor of any and all of the terms
and provisions of this Mortgage to be performed by
20
Mortgagor; Mortgagee may release, regardless of consideration and without the
necessity for any notice to or consent by the holder of any subordinate lien on
the Mortgaged Property, any part of the security held for the obligations
secured by this Mortgage without, as to the remainder of the security, in
anywise impairing or affecting the lien of this Mortgage or the priority of such
lien over any subordinate lien. Mortgagee may resort for the payment of the
Indebtedness secured by this Mortgage to any other security therefor held by
Mortgagee in such order and manner as Mortgagee may elect.
23. Waivers by Mortgagor. Mortgagor hereby waives, to the fullest extent
permitted by applicable law, all errors and imperfections in any proceedings
instituted by Mortgagee under this Mortgage and all benefit of any present or
future statute of limitations or moratorium law or any other present or future
law, regulation or judicial decision, nor shall Mortgagor at any time insist
upon or plead, or in any manner whatever claim or take any benefit or advantage
of such statute, law, regulation or judicial decision which (a) exempts any of
the Mortgaged Property or any other property, real or personal, or any part of
the proceeds arising from any sale thereof from attachment, levy or sale under
execution, (b) provides for any stay of execution, moratorium, marshalling of
assets, exemption from civil process, redemption, extension of time for payment
or valuation or appraisement of any of the Mortgage Property, (c) requires
Mortgagee to institute proceedings in mortgage foreclosure against the Mortgaged
Property before exercising any other remedy afforded Mortgagee hereunder upon
the occurrence of an Event of Default, or (d) conflicts with or may affect,
adverse to Mortgagee, any provision, covenant or term of this Mortgage.
24. Trust Funds. All lease security deposits of the Real Estate shall be
treated as trust funds not to be commingled with any other funds of Mortgagor.
Within 10 days after request by Mortgagee, Mortgagor shall furnish Mortgagee
satisfactory evidence of compliance with this paragraph, together with a
statement of all lease security deposits by lessees and copies of all Leases not
theretofore delivered to Mortgagee, which statement shall be certified by
Mortgagor.
25. Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing, by telecopier or, if
available, by telex and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or when deposited
in the mail, first class postage prepaid, or in the case of transmission by
telecopier, when confirmation of receipt is obtained, or in the case of telex
notice, when sent, answerback received, addressed as follows, or to such other
address as may be hereafter notified by the respective parties hereto and any
future holders of the Notes:
21
Mortgagor: Camden Xxxxx X.X.
c/o Cogen Technologies, Inc.
0000 Xxxxx Xxxxxx
Xxxxx 0000, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. XxXxxx
Telecopy: (000) 000-0000
Mortgagee: General Electric Power Funding
Corporation
Xxx Xxxxx Xxxx
Xxxxxxxx Xxx, Xxxx 000
Schenectady, New York 12345
Attention: Vice President -- Investments
Telecopy: (000) 000-0000
Copy to: General Electric Capital Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Project Financing
Investments -- Transportation and
Industrial Financial Division
Telecopy: (000-000-0000
26. Taxes on Mortgagee. In the event of the passage after the date of
this Mortgage of any law of the jurisdiction in which the Real Estate is located
deducting from the value of the Real Estate for the purposes of taxation any
lien thereon or changing in any way the laws for the taxation of mortgages or
debts secured by mortgages for state or local purposes or the manner of the
collection of any such taxes and imposing a tax, either directly or indirectly,
on this Mortgage, Mortgagee shall have the right to declare all sums outstanding
secured by this Mortgage immediately due and payable, provided, however, that
such election shall be ineffective if Mortgagor is exempt from such tax or, if
not exempt from such tax, is permitted by law to pay the whole of such tax (or
to provide funds to Mortgagee to pay such taxes or to reimburse Mortgagee for
payment of such taxes) in addition to all other payments required hereunder and
if Mortgagor pays such tax (or provides funds to Mortgagee to pay such tax or
reimburses Mortgagee for payment of such tax) when the same is due and payable
and agrees in writing to pay such tax when thereafter levied or assessed against
the Real Estate.
27. No Modification; Binding Obligations. This Mortgage is subject to
modification or amendment by a writing executed by Mortgagor and Mortgagee which
shall be recorded in the land records of the County of Camden, New Jersey.
Pursuant to N.J.S.A. 46:9-2, such modification or amendment shall not affect the
priority of this Mortgage. The covenants of this Mortgage shall run with the
land and bind Mortgagor, and its distributee, personal representatives,
successors and assigns, and all present and subsequent encumbrancers, lessees
and sublessee of any of the Mortgaged Property, and shall inure to
22
the benefit of Mortgagee and its successors, assigns and endorsees.
28. Miscellaneous. As used in this Mortgage, the singular shall include
the plural as the context requires and the following words and phrases shall
have the following meanings: (a) "including" shall mean "including but not
limited to"; (b) "provisions" shall mean "provisions, terms, covenants and/or
conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage and/or deed of trust"; (d) "obligation" shall mean
"Obligation, duty, covenant and/or condition"; and (e) "any of the Mortgaged
Property" shall mean "the Mortgaged Property or any part thereof or interest
therein." Any act which Mortgagee is permitted to perform hereunder may be
performed at any time and from time to time by Mortgagee or any person or entity
designated by Mortgagee. Any act which is prohibited to Mortgagor hereunder is
also prohibited to all lessees of any of the Mortgaged Property. Each
appointment of Mortgagee as attorney-in-fact for Mortgagor under the Mortgage is
irrevocable and coupled with an interest. Mortgagee has the right to reasonably
refuse to grant its consent, approval or acceptance or to indicate its
satisfaction, whenever such consent, approval, acceptance or satisfaction is
required hereunder.
29. Captions. The captions or headings at the beginning of each Article
hereof are for the convenience of the parties and are not a part of this
Mortgage.
30. Successors and Assigns. The covenants contained herein shall run
with the land and bind Mortgagor, its successors and assigns, and all subsequent
owners, encumbrances and tenants of the Mortgaged property, and shall inure to
the benefit of the Mortgagee.
31. Enforceability. (a) This Mortgage, the validity and enforceability
of this Mortgage and all transactions and questions arising hereunder, shall be
governed by and construed and interpreted in accordance with the laws of the
State of New Jersey. Whenever possible, each provision of this Mortgage shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Mortgage shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining provisions of this
Mortgage. Nothing in this Mortgage shall require Mortgagor to pay, or Mortgagee
to accept, interest in an amount which would subject Mortgagee to penalty under
applicable law. In the event that the payment of any interest due hereunder
would subject Mortgagee to penalty under applicable law, then ipso facto the
obligation of Mortgagor to make such payment shall be reduced to the highest
rate authorized under applicable law without penalty.
(b) Mortgagor hereby irrevocably agrees that any legal action, suit, or
proceeding against it with respect to its
23
obligations, liabilities or any other matter under or arising out of or in
connection with this Mortgage or for recognition or enforcement of any judgment
rendered in any such action, suit or proceeding may be brought in the United
States Courts for the Southern District of New York, or in the courts of the
State of New Jersey, as Mortgagee may elect, and, by execution and delivery of
this Mortgege, Mortgagor hereby irrevocably accepts and submits to the non-
exclusive jurisdiction of each of the aforesaid courts in personam, generally
and unconditionally with respect to any such action, suit or proceeding for
itself and in respect of its property. Mortgagor further agrees that final
judgment against it in any action, suit, or proceeding referred to herein 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 its indebtedness. Mortgagor and Mortgagee each
hereby waives trial by jury.
32. RECEIPT OF COPY. MORTGAGOR ACKNOWLEDGES THAT IT HAS RECEIVED
WITHOUT CHARGE A TRUE COPY OF THIS MORTGAGE.
33. Loan Agreement. This Mortgage has been executed and delivered
pursuant to the Loan Agreement and is entitled to the benefits thereof.
34. Limitation of Liability. Mortgagee agrees that the liability of
Mortgagor under this Mortgage, the Loan Agreement, the Notes and the other
Obligations shall be limited to the Mortgaged Property and the rights and
remedies of Mortgagee against the Mortgaged Property pursuant to this Mortgage
and the other Collateral Security Documents, and in no event shall Mortgagor or
any Partner (as defined in the Camden Loan Agreement) or any officer, director,
partner or Affiliate thereof be personally liable or obligated for any such
obligations. Nothing herein shall limit the full recourse of Mortgagee to the
Mortgaged Property pursuant to this Mortgage and the other Collateral Security
Documents or be deemed to constitute a waiver of liability, if any, of any
Person for
damages for fraud or for any knowing misrepresentation made by such Person
herein or in any other Transaction Document or in any certificate or other
document delivered pursuant hereto or thereto.
35. Release. Mortgagee shall release the lien of this Mortgage promptly
following the fulfillment of the provisions of Section 9.3 of the Loan Agreement
with respect to the release of Collateral.
IN WITNESS WHEREOF, the undersigned has caused this Mortgage to be duly
executed under seal the day and year first above written.
CAMDEN XXXXX X.X.
(Corporate Seal) By: Cogen Technologies Camden GP
Limited Partnership, its general
partner
ATTEST: By: Cogen Technologies Camden,
Inc., its general partner
/s/ XxxxXxx XxXxxxxx
---------------------------- By: /s/ Xxxxxxxx Xxxxxx
XxxxXxx XxXxxxxx --------------------------
Assistant Secretary Name: Xxxxxxxx Xxxxxx
Title: V.P. - Finance
EXHIBIT A
ALL THAT CERTAIN land or premises situate, lying and being in the City
of Camden, County of Camden and State of New Jersey. The legal description
being more particularly bounded and described as follows:
BEGINNING at a point in the Southeasterly corner of Broadway (66 feet
wide) and Xxxxxxx Avenue (60 feet wide); thence
(1) South 88 degrees 33 minutes 00 seconds East along the Southerly line
off Xxxxxxx Avenue, a distance of 450 feet to the Westerly line of Sixth Street
(50 feet wide); thence
(2) South 01 degrees 20 minutes 45 seconds West along the Westerly line
of Sixth Street, a distance of 400 feet to a point; thence
(3) North 88 degrees 33 minutes 00 seconds West, a distance of 210 feet
to a point in the center line of Fillmore Street (now vacated); thence
(4) North 01 degrees 20 minutes 45 seconds East and along the center
line of Fillmore Street (now vacated) 20 feet to a point; thence
(5) North 88 degrees 33 minutes 00 seconds West, a distance of 115
feet to a point in the center line of Hedley Street (now vacated); thence
(6) North 01 degrees 20 minutes 45 seconds East along the center line
of Hedley Street (now vacated), a distance of 20 feet to a point; thence
(7) North 88 degrees 33 minutes 00 seconds West, a distance of 125 feet
to a point in the Easterly line of Broadway; thence
(8) North 01 degrees 20 minutes 45 seconds East along the Easterly line
of Broadway, a distance of 360 feet to point and place of beginning.
BEING Xxx 0, Xxxxx 000, Xxx Xxx.
XXXXX XX XXXXX (S)
(S) ss.:
COUNTY OF XXXXXX (S)
BE IT REMEMBERED, that on this 27th day of January, 1992, in the County
and State aforesaid, before me, the subscriber, a Notary Public of Xxxxxx
County, Texas authorized to take acknowledgments and proofs in said County and
State, personally appeared Xxxxxxxx Xxxxxx and XxxxXxx XxXxxxxx, who, I am
satisfied, are the persons who signed the within instrument as V.P. - Finance
and Asst. Secretary, respectively, of Cogen Technologies Camden, Inc., the
corporation named therein, and they thereupon acknowledged that the within
instrument signed by the corporation and sealed with its corporate seal, was
signed, sealed with the corporate seal and delivered by them as such officers
and is the voluntary act and deed of the corporation, made by virtue of
authority from its Board of Directors, as a general partner on behalf of Cogen
Technologies Camden GP Limited Partnership, a Delaware limited partnership, as a
general partner on behalf of CAMDEN XXXXX X.X., a Delaware limited partnership
the partnership which executed the within instrument.
Signature /s/ Xxxxxx X. Xxxxxxxx
---------------------------
XXXXXX X. XXXXXXXX Xxxxxx X. Xxxxxxxx
[SEAL] NOTARY PUBLIC, STATE OF TEXAS
MY COMMISSION EXPIRES Printed
JUL. 27, 1993 -----------------------------
Notary Public
My commission expires:
--------------
Schedule 1
CONTRACTS
Equipment Contract, dated February 3, 1992, by and between the Borrower
and General Electric.
Power Purchase Agreement, dated April 15, 1988, between PSE&G and the
Borrower.
Energy Purchase Agreement, dated December 18, 1989, between the Steam
Host and the Borrower.
Gas Service Agreement, dated May 15, 1991, between PSE&G and the
Borrower, as amended by the First Amendment thereto dated November 1, 1991.
Engineering, Procurement and Construction Contract, dated as of
February 3, 1992, by and between Camden Xxxxx X.X. and Ebasco Constructors Inc.
Operation and Maintenance Agreement.
(Capitalized terms used but not defined in this Schedule shall have the
respective meanings given such terms in the Camden Loan Agreement)
RECORDED-CAMDEN COUNTY
92FEB-4 PM 3:29
XXXXX X. XXXX
REGISTER
