MORTGAGE
THIS MORTGAGE IS DATED FEBRUARY 6, 1997, between 000 XXXXXXXX XXXXXX LLC,
whose address is 000 XXXXXXXX XXXXXX, XXXXXXXXXXXX, XX 00000-0000 (referred to
below as "Grantor"); and THE PHILLIPSBURG NATIONAL BANK & TRUST COMPANY, whose
address is 000 XXXXX XXXX XXXXXX, P. 0. XXX 0000, XXXXXXXXXXXX, XX 00000-0000
(referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and
conveys to Lender all of Grantor's right, title, and interest in and to the
following described real property, together with all existing or subsequently
erected or affixed buildings, improvements and fixtures; all easements, rights
of way, and appurtenances; all water, water rights, watercourses and ditch
rights (including stock in utilities with ditch or irrigation rights); and all
other rights, royalties, and profits relating to the real property, including
without limitation all minerals, oil, gas, geothermal and similar matters,
located in XXXXXX County, State of New Jersey (the "Real Property"):
SEE ATTACHED SCHEDULE "A"
The Real Property or its address is commonly known as 000 XXXXXXXX XXXXXX,
XXXXXXXXXXXX, XX 00000-0000. The Real Property tax identification number is
BLOCK 1005 LOT 2.
Grantor presently assigns to Lender all of Grantor's right, title, and
interest in and to all leases of the Property and all Rents from the Property.
In addition, Grantor grants to Lender a Uniform Commercial Code security
interest in the Personal Property and Rents.
DEFINITIONS. The following words shall have the following meanings when
used in this Mortgage. Terms not otherwise defined in this Mortgage shall have
the meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
Grantor. The word "Grantor" means 000 XXXXXXXX XXXXXX LLC. The Grantor is
the mortgagor under this Mortgage.
Guarantor. The word "Guarantor" means and includes without limitation each
and all of the guarantors, sureties, and accommodation parties in connection
with the Indebtedness.
Improvements. The word "Improvements" means and includes without limitation
all existing and future improvements, buildings, structures, mobile homes
affixed on the Real Property, facilities, additions, replacements and other
construction an the Real Property.
Indebtedness. The word "Indebtedness" means all principal and interest
payable under the Note and any amounts expended or advanced by Lender to
discharge obligations of Grantor or expenses incurred by Lender to enforce
obligations of Grantor under this Mortgage, together with interest on Such
amounts as provided in this Mortgage.
Lender. The word "Lender" means THE PHILLIPSBURG NATIONAL BANK & TRUST
COMPANY, its successors and assigns. The Lender is the mortgagee under this
Mortgage.
Mortgage. The word "Mortgage" means this Mortgage between Grantor and
Lender, and includes without limitation all assignments and security interest
provisions relating to the Personal Property and Rents.
Note. The word "Note" means the promissory note or credit agreement dated
February 6, 1997, in the original principal amount of $287,600.00 from Grantor
to Lender, together with all renewals cf. extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory note or
agreement. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE.
Personal Property. The words "Personal Property" mean all equipment,
fixtures, and other articles of personal property now or hereafter owned by
Grantor, and now or hereafter attached or affixed to the Real Property; together
with all accessions, parts, and additions to, all replacements of, and all
substitutions for, any of such property; and together with all proceeds
(including without limitation all insurance proceeds and refunds of premiums)
from any sale or other disposition of the Property.
Property. The word "Property" means collectively the Real Property and the
Personal Property.
Real Property. The words "Real Property" mean the property, interests and
rights described above in the "Grant of Mortgage" section.
Related Documents. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
Rents. The word "Rents" means all present and.future rents, revenues,
income, issues, royalties, profits, and other benefits derived from the
Property.
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THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST
IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE
INDEBTEDNESS AND (2) PERFORMANCE OF ALL OBLIGATIONS OF GRANTOR UNDER THIS
MORTGAGE AND THE RELATED DOCUMENTS. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE
FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage.
Grantor shall pay to Lender all amounts secured by this Mortgage as they become
due, and shall strictly perform all of Grantor's obligations under this
Mortgage.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's
possession and use of the Property shall be governed by the following
provisions:
Possession and Use. Until in default, Grantor may remain in possession and
control of and operate and manage the Property and called the Rents from the
Property.
Duty to Maintain. Grantor shall maintain the Property in tenantable
condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
Hazardous Substances. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and "threatened release," as used in this Mortgage, shall
have the same meanings as set forth in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub.
L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., the New Jersey Industrial Site Recovery Act, NJSA Section
13:1K-6 ("ISRA"), the New Jersey Spill Compensation and Control Act, NJSA
58:10-23.11 et seq., or other applicable state or Federal laws, rules, or
regulations adopted pursuant to any of the foregoing. The terms "hazardous
waste" and "hazardous substance" shall also include, without limitation,
petroleum and petroleum by-products or any fraction thereof and asbestos.
Grantor represents and warrants to Lender that: (a) During the period of
Grantor's ownership of the Property, there has been no use, generation,
manufacture, storage, treatment, disposal, release or threatened release of any
hazardous waste or substance by any person on, under, about or from the
Property; (b) Grantor has no knowledge of, or reason to believe that there has
been, except as previously disclosed to and acknowledged by Lender in writing,
(i) any use, generation, manufacture, storage, treatment, disposal, release, or
threatened release of any hazardous waste or substance on, under, about or from
the Property by any prior owners or occupants of the Property or (ii) any actual
or threatened litigation or claims of any kind by any
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person relating to such matters; and (c) except as previously disclosed to and
acknowledged by Lender in writing, (i) neither Grantor nor any tenant,
contractor, agent or other authorized user of the Property shall use, generate,
manufacture, store, treat, dispose of, or release any hazardous waste or
substance on, under, about or from the Property and (ii) any such activity shall
be conducted in compliance with all applicable federal, state, and local laws,
regulations and ordinances, including without limitation those laws,
regulations, and ordinances described above. Grantor authorizes Lender and its
agents to enter upon the Property to make such inspections and tests, at
Grantor's expense, as Lender may deem appropriate to determine compliance of the
Property with this section of the Mortgage. Any inspections or tests made by
Lender shall be for Lender's purposes only and shall not be construed to create
any responsibility or liability on the part of Lender to Grantor or to any other
person. The representations and warranties contained herein are based on
Grantor's due diligence in investigating the Property for hazardous waste and
hazardous substances. Grantor hereby (a) releases and waives any future claims
against Lender for indemnity or contribution in the event Grantor becomes liable
for cleanup or other costs under any such laws, and (b) agrees to indemnify and
hold harmless Lender against any and all claims, losses, liabilities, damages,
penalties, and expenses which Lender may directly or indirectly sustain or
suffer resulting from a breach of this section of the Mortgage or as a
consequence of any use, generation, manufacture, storage, disposal, release or
threatened release occurring prior to Grantor's ownership or interest in the
Property, whether or not the same was or should have been known to Grantor. The
provisions of this section of the Mortgage, including the obligation to
indemnify, shall survive the payment of the Indebtedness and the satisfaction
and reconveyance of the lien of this Mortgage and shall not be affected by
Lender's acquisition of any interest in the Property, whether by foreclosure or
otherwise.
Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance
nor commit, permit, or suffer any stripping of or waste on or to the Property or
any portion of the Property. Without limiting the generality of the foregoing,
Grantor will not remove. or grant to any other party the right to remove, any
timber, minerals (including oil and gas), soil, gravel or rock products without
the prior written consent of Lender.
Removal of Improvements. Grantor shall not demolish or remove any
improvements from the Real Property without the prior written consent of Lender.
As a condition to the removal of any improvements, Lender may require Grantor to
make arrangements satisfactory to Lender to replace such improvements with
improvements of at least equal value.
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Lender's Right to Enter. Lender and its agents and representatives may
enter upon the Real Property at all reasonable times to attend to Lender's
interests and to inspect the Property for purposes of Grantor's compliance with
the terms and conditions of this Mortgage.
Compliance with Governmental Requirements. Grantor shall promptly comply
with all laws, ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the use or occupancy of the Property,
including without limitation, the Americans With Disabilities Act. Grantor may
contest in good faith any such law, ordinance, or regulation and withhold
compliance during any proceeding, including appropriate appeals, so long as
Grantor has notified Lender in writing prior to doing so and so long as, in
Lender's sole opinion, Lender's interests in the Property are not jeopardized.
Lender may require Grantor to post adequate security or a surety bond,
reasonably satisfactory to Lender, to protect Lender's interest.
Duty to Protect. Grantor agrees neither to abandon nor leave unattended the
Property. Grantor shall do all other acts, in addition to those acts set forth
above in this section, which from the character and use at the Property are
reasonably necessary to protect and preserve the Property.
DUE ON SALE - CONSENT BY LENDER. Lender may, at its option, declare
immediately due and payable all sums secured by this Mortgage upon the sale or
transfer, without the Lenders prior written consent, of all or any part of the
Real Property, or any interest in the Real Property. A "sale or transfer" means
the conveyance of Real Property or any right, title or interest therein; whether
legal, beneficial or equitable; whether voluntary or involuntary; whether by
outright sale, deed, installment sale contract, land contract, contract for
deed, leasehold interest with a term greater than three (3) years, lease-option
contract, or by sale, assignment, or transfer of any beneficial interest in or
to any land trust holding title to the Real Property, or by any other method of
conveyance of Real Property interest. If any Grantor is a corporation,
partnership or limited liability company, transfer also includes any change in
ownership of more than twenty-five percent (25%) of the voting stock,
partnership interests or limited liability company interests, as the case may
be, of Grantor. However, this option shall not be exercised by Lender if such
exercise is prohibited by federal law or by New Jersey law.
TAXES AND LIENS. The following provisions relating to the taxes and liens
on the Property are a part of this Mortgage.
Payment. Grantor shall pay when due (and in all events prior to
delinquency) all taxes, payroll taxes, special taxes, assessments, water charges
and sewer service charges
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levied against or on account of the Property, and shall pay when due all claims
for work done on or for services rendered or material furnished to the Property.
Grantor shall maintain the Property free of all liens having priority over or
equal to the interest of Lender under this Mortgage, except for the lien of
taxes and assessments not due, and except as otherwise provided in the following
paragraph.
Right To Contest. Grantor may withhold payment of any tax, assessment, or
claim in connection with a good faith dispute over the obligation to pay, as
long as Lender's interest in the Property is not jeopardized. If a lien arises
or is filed as a result of nonpayment, Grantor shall within fifteen (15) days
after the lien arises or, if a lien is filed, within fifteen (15) days after
Grantor has notice of the filing, secure the discharge of the tier, or if
requested by Lender, deposit with Lender cash or a sufficient corporate surety
bond or other security satisfactory to Lender in an amount sufficient to
discharge the lien plus any costs and attorneys' fees or other charges that
could accrue as a result of a foreclosure or sale under the lien. In any
contest, Grantor shall defend itself and Lender and shall satisfy any adverse
judgment before enforcement against the Property. Grantor shall name Lender as
an additional obligee under any surety bond furnished in the contest
proceedings.
Evidence of Payment. Grantor shall upon demand furnish to Lender
satisfactory evidence of payment of the taxes or assessments and shall authorize
the appropriate governmental official to deliver to Lender at any time a written
statement of the taxes and assessments agaInst the Property.
Notice of Construction. Grantor shall notify Lender at least fifteen (15)
days before any work is commenced, any services are furnished, or any materials
are supplied to the Property, if any constructIon lion could be asserted on
account of the work, services, or materials. Grantor will upon request of Lender
furnish to Lender advance assurances satisfactory to Lender that Grantor can and
will pay the cost of such improvements.
No Claim For Credit For Taxes. Grantor will not make deduction from or
claim credit an the principal or interest secured by this Mortgage by reason of
any governmental taxes, assessments or charges. Grantor will not claim any
deduction from the taxable value of the Property by reason of this Mortgage.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring
the Property are a part of this Mortgage.
Maintenance of Insurance. Grantor shall procure and maintain policies of
fire insurance with standard extended coverage endorsements on a replacement
basis for the full insurable value covering all improvements on the Real
Property in
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an amount sufficient to avoid application of any coinsurance clause, and with a
standard mortgagee clause in favor of Lender. Grantor shall also procure and
maintain comprehensive general liability insurance in such coverage amounts as
Lender may request with Lender being named as additional insureds in such
liability insurance policies. Additionally, Grantor shall maintain such other
insurance, including but not limited to hazard, business interruption and boiler
insurance as Lender may require. Policies shall be written by such insurance
companies and in such form as may be reasonably acceptable to Lender. Grantor
shall deliver to Lender certificates of coverage from each insurer containing a
stipulation that coverage will not be cancelled or diminished without a minimum
of ten (10) days' prior written notice to Lender and not containing any
disclaimer of the insurer's liability for failure to give such notice. Each
insurance policy also shall include an endorsement providing that coverage in
favor of Lender will not be impaired in any way by any act, omission or default
of Grantor or any other person. Should the Real Property at any time become
located in an area designated by the Director of the Federal Emergency
Management Agency as a special flood hazard area, Grantor agrees to obtain and
maintain Federal Flood Insurance for the full unpaid principal balance of the
loan, up to the maximum policy limits set under the National Flood Insurance
Program, or as otherwise required by Lender, and to maintain such insurance for
the term of the loan.
Application of Proceeds. Grantor shall promptly notify Lender of any loss
or damage to the Property. Lender may make proof of loss if Grantor fails to do
so within fifteen (15) days of the casualty. Whether or not Lender's security is
impaired, Lender may, at its election, apply the proceeds to the reduction of
the Indebtedness, payment of any lien affecting the Property, or the restoration
and repair of the Property. If Lender elects to apply the proceeds to
restoration and repair, Grantor shall repair or replace the damaged or destroyed
improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory
proof of such expenditure, pay or reimburse Grantor from the proceeds for the
reasonable cost of repair or restoration if Grantor is not in default hereunder.
Any proceeds which have not been disbursed within 180 days after their receipt
and which Lender has not committed to the repair or restoration of the Property
shall be used first to pay any amount owing to Lender under this Mortgage, then
to prepay accrued interest, and the remainder, if any, shall be applied to the
principal balance of the Indebtedness. If Lender holds any proceeds after
payment in full of the Indebtedness, such proceeds shall be paid to Grantor.
Unexpired Insurance at Sale. Any unexpired insurance shall inure to the
benefit of, and pass to, the purchaser of the Property covered by this Mortgage
at any
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trustee's sale or other sale held under the provisions of this Mortgage, or at
any foreclosure sale of such Property.
Grantees Report on Insurance. Upon request of Lender, however not more then
once a year, Grantor shall furnish to Lender a report on each existing policy of
insurance showing: (a) the name of the insurer; (b) the risks insured; (c) the
amount of the policy; (d) the property insured, the then current replacement
value of such property, and the manner of determining that value; and (e) the
expiration date of the policy. Grantor shall, upon request of Lender, have an
independent appraiser satisfactory to Lender determine the cash value
replacement cost of the Property.
EXPENDITURES BY LENDER. If Grantor fails to comply with any provision of
this Mortgage, or if any action or proceeding is commenced that would materially
affect Lender's interests in the Property, Lender on Grantees behalf may, but
shall not be required to, take any action that Lender deems appropriate. Any
amount that Lender expends in so doing will bear interest at the rate provided
for in the Note from the date incurred or paid by Lender to the date of
repayment by Grantor. All such expenses, at Lender's option, will (a) be payable
on demand, (b) be added to the balance of the Note and be apportioned among and
to payable with any installment payments to become due during either (i) the
term of any applicable insurance policy or (ii) the remaining term of the Note,
or (c) be treated as a balloon payment which will be due and payable at the
Note's maturity. This Mortgage also will secure payment of these amounts. The
rights provided for in this paragraph shall be in addition to any other rights
or any remedies to which Lender may be entitled an account of the default. Any
such action by Lender shall not be construed as curIng the default so as to bar
Lender from any remedy that it otherwise would have had.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership
of the Property are a part of this Mortgage.
Title. Grantor warrants that: (a) Grantor holds good and marketable title
of record to the Property in fee simple, free and clear of all liens and
encumbrances other than those set forth in the Real Property description or in
any title insurance policy, title report, or final title opinion issued in favor
of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor
has the full right, power, and authority to execute and deliver this Mortgage to
Lender.
Defense of Title. Subject to the exception in the paragraph above, Grantor
warrants and will forever defend the title to the Property against the lawful
claims of all persons. In the event any action or proceeding is commenced that
questions Grantor's title or the interest of Lender under this Mortgage,
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Grantor shall defend the action at Grantor's expense. Grantor may be the nominal
party in such proceeding, but Lender shall be entitled to participate in the
proceeding and to be represented in the proceeding by counsel of Lender's own
choice, and Grantor will deliver, or cause to be delivered, to Lender such
instruments as Lender may request from time to time to permit such
participation.
Compliance With Laws. Grantor warrants that the Property and Grantor's use
of the Property complies with all existing applicable laws, ordinances, and
regulations of governmental authorities.
CONDEMNATION. The following provisions relating to condemnation of the
Property are a part of this Mortgage.
Application of Net Proceeds. If all or any part of the Property is
condemned by eminent domain proceedings or by any proceeding or purchase in lieu
of condemnation, Lender may at its election require that all or any portion of
the net proceeds of the award be applied to the Indebtedness or the repair or
restoration of the Property. The net proceeds of the award Shall mean the award
after payment of all reasonable costs, expenses, and attorneys' fees incurred by
Lender in connection with the condemnation.
Proceedings. If any proceeding in condemnation is filed, Grantor shall
promptly notify Lender in writing, and Grantor shall promptly take such steps as
may be necessary to defend the action and obtain the award. Grantor may be the
nominal party in such proceeding, but Lender shall be entitled to participate in
the proceeding and to be represented in the proceeding by counsel of its own
choice, and Grantor will deliver or cause to be delivered to Lender such
instruments as may be requested by it from time to time to permit such
participation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The
following provisions relating to governmental taxes, fees and charges are a part
of this Mortgage:
Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall
execute such documents in addition to this Mortgage and take whatever other
action is requested by Lender to perfect and continue Lender's lien an the Real
Property. Grantor shall reimburse Lender for all taxes, as described below,
together with all expenses incurred in recording, perfecting or continuing this
Mortgage, including without limitation all taxes, fees, documentary stamps, and
other charges for recording or registering this Mortgage.
Taxes. The following shall constitute taxes to which this section applies:
(a) a specific tax upon this type of Mortgage or upon all or any part of the
Indebtedness secured by
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this Mortgage; (b) a specific tax on Grantor which Grantor is authorized or
required to deduct from payments on the Indebtedness secured by this type of
Mortgage; (c) a tax an this type of Mortgage chargeable against the Lender or
the holder of the Note; and (d) a specific tax on all or any portion of the
Indebtedness or on payments of principal and interest made by Grantor.
Subsequent Taxes. If any tax to which this section applies is enacted
subsequent to the date of this Mortgage, this event shall have the same effect
as an Event of Default (as defined below), and Lender may exercise any or all of
its available remedies for an Event of Default as provided below unless Grantor
either (a) pays the tax before it becomes delinquent, or (b) contests the tax as
provided above in the Taxes and Liens section and deposits with Lender cash or a
sufficient corporate surety bond or other security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating
to this Mortgage as a security agreement are a part of this Mortgage.
Security Agreement. This instrument shall constitute a security agreement
to the extent any of the Property constitutes fixtures or other personal
property, and Lender shall have all of the rights of a secured party under the
Uniform Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Grantor shall execute financing
statements and take whatever other acton is requested by Lender to perfect and
continue Lender's security interest in the Rents and Personal Property. In
addition to recording this Mortgage in the real property records, Lender may, at
any time and without further authorization from Grantor, file executed
counterparts, copies or reproductions of this Mortgage as a financing statement.
Grantor shall reimburse Lender for all expenses incurred in perfecting or
continuing this security interest. Upon default, Grantor shall assemble the
Personal Property in a manner and at a place reasonably convenient to Grantor
and Lender and make it available to Lender within three (3) days after receipt
of written demand from Lender.
Addresses. The mailing addresses of Grantor (debtor) and Lender (secured
party), from which information concerning the security interest granted by this
Mortgage may be obtained (each as required by the Uniform Commercial Code), are
as stated on the first page of this Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to
further assurances and attorney-in-fact are a part of this Mortgage.
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Further Assurances. At any time, and from time to time, upon request of
Lender, Grantor will make, execute and deliver, or will cause to be made,
executed or delivered, to Lender or to Lender's designee, and when requested by
Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be,
at such times and in such offices and places as Lender may deem appropriate, any
and all such mortgages, deeds of trust, security deeds, security agreements,
financing statements, continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion of Lender, be
necessary or desirable in order to effectuate, complete, perfect, continue, or
preserve (a) the obligations of Grantor under the Note, this Mortgage, and the
Related Documents, and (b) the liens and security interests created by this
Mortgage as first and prior liens on the Property, whether now owned or
hereafter acquired by Grantor. Unless prohibited by law or agreed to the
contrary by Lender in writing, Grantor shall reimburse Lender for all costs and
expenses incurred in connection with the matters referred to in this paragraph.
Attorney-in-Fact. If Grantor falls to do any of the things referred to in
the preceding paragraph, Lender may do so for and in the name of Grantor and at
Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender
as Grantor's attorney-in-fact for the purpose of making, executing, delivering,
filing, recording, and doing all other things as may be necessary or desirable,
in Lender's sole opinion, to accomplish the matters referred to in the preceding
paragraph.
FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, and
otherwise performs all the obligations imposed upon Grantor under this Mortgage,
Lender shall execute and deliver to Grantor a suitable satisfaction of this
Mortgage and suitable statements of termination of any financing statement on
file evidencing Lender's security interest in the Rents and the Personal
Property. Grantor will pay, if permitted by applicable law, any reasonable
termination fee as determined by Lender from time to time.
DEFAULT. Each of the following, at the option of Lender, shall constitute
an event of default ("Event of Default") under this Mortgage:
Default On Indebtedness. Failure of Grantor to make any payment when due on
the Indebtedness.
Default on Other Payments. Failure of Grantor within the time required by
this Mortgage to make any payment for taxes or insurance, or any other payment
necessary to prevent filing of or to effect discharge of any lien.
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Compliance Default. Failure of Grantor to comply with any other term,
obligation, covenant or condition contained in this Mortgage, the Note or in any
of the Related Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Grantor under this Mortgage, the Note or
the Related Documents is false or misleading in any material respect, either now
or at the time made or furnished.
Defective Collateralization. This Mortgage or any of the Related Documents
ceases to be in full force and affect (including failure of any collateral
documents to create a valid and perfected security interest or lien) at any time
and for any reason.
Death or Insolvency. The dissolution (regardless of whether election to
continue is made), any member withdraws from the limited liability company, or
any other termination of Grantor's existence as a going business or the death of
any member, the insolvency of Grantor, the appointment of a receiver for any
part of Grantor's property, any assignment for the benefit of creditors, any
type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Grantor.
Foreclosure, Forfeiture, etc. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Grantor or by any governmental agency against
any of the Property. However, this subsection shall not apply in the event of a
good faith dispute by Grantor as to the validity or reasonableness of the claim
which is the basis of the foreclosure or forfeiture proceeding, provided that
Grantor gives Lender written notice of such claim and furnishes reserves or a
surety bond for the claim satisfactory to Lender.
Breach of Other Agreement. Any breach by Grantor under the terms of any
other agreement between Grantor and Lender that is not remedied within any grace
period provided therein, including without limitation any agreement concerning
any indebtedness or other obligation of Grantor to Lender, whether existing now
or later.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness. Lender, at its option, may, but shall not be
required to, permit the Guarantor's estate to assume unconditionally the
obligations arising under the guaranty in a manner satisfactory to Lender, and,
in doing so, cure the Event of Default.
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Adverse Change. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
Right to Cure. If such a failure is curable and if Grantor has not bean
given a notice of a breach of the same provision of this Mortgage within the
preceding twelve (12) months, it may be cured (and no Event of Default will have
occurred) if Grantor, after Lender sends written notice demanding cure of such
failure, (a) cures the failure within thirty (30) days; or (b) if the cure
requires more than thirty (30) days, immediately initiates steps sufficient to
cure the failure and thereafter continues and completes all reasonable and
necessary steps sufficient to produce compliance as scion as reasonably
practical.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default
and at any time thereafter, Lender, at its option, may exercise any one or more
of the following rights and remedies, in addition to any other rights or
remedies provided by law:
Accelerate Indebtedness. Lender shall have the right at its option without
notice to Grantor to declare the entire Indebtedness immediately due and
payable, including any prepayment penalty which Grantor would be required to
pay.
UCC Remedies. With respect to all or any part of the Personal Property,
Lender shall have all the rights and remedies of a secured party under the
Uniform Commercial Code.
Lender In Possession. Upon acceleration of the Indebtedness or abandonment
of the Property, Lender (in person, by agent or by judicially appointed
receiver) shall be entitled to enter upon, take possession of and manage the
Property and to collect the Rents, including those past due. Any Rents collected
by Lender or the receiver shall be applied first to payment of the costs of
management at the Property and collection of Rents, including but not limited to
receiver's fees, premiums an the receiver's bonds and reasonable attorneys' fees
and then to the other Indebtedness secured by this Mortgage.
Appoint Receiver. Lender shall have the right to have a receiver appointed
to take possession of all or any part at the Property, with the power to protect
and preserve the Property, to operate the Property preceding foreclosure or
sale, and to collect the Rents from the Property and apply the proceeds, over
and above the cost of the receivership, against the Indebtedness. The receiver
may serve without bond if permitted by law. Lender's right to the appointment of
a receiver shall exist whether or not the apparent value of the Property exceeds
the Indebtedness by a substantial amount. Employment by Lender shall not
disqualify a person from serving as a receiver.
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Judicial Foreclosure. Lender may obtain a judicial decree foreclosing
Grantor's interest in all or any part of the Property.
Nonjudicial Sale. If permitted by applicable law, Lender may foreclose
Grantor's interest in all or in any part of the Personal Property or the Real
Property by nonjudicial sale.
Tenancy at Sufferance. If Grantor remains in possession of the Property
after the Property is sold as provided above or Lender otherwise becomes
entitled to possession of the Property upon default of Grantor, Grantor shall
become a tenant at sufferance of Lender or the purchaser of the Property and
shall, at Lender's option, either (a) pay a reasonable rental for the use of the
Property, or (b) vacate the Property immediately upon the demand of Lender.
Other Remedies. Lender shall have all other rights and remedies provided in
this Mortgage or the Note or available at law or in equity.
Sale of the Property. To the extent permitted by applicable law, Grantor
hereby waives any and all right to have the property marshalled. In exercising
its rights and remedies, Lender shall be free to sell all or any part of the
Property together or separately, in one sale or by separate sales. Lender shall
be entitled to bid at any public sale on all or any portion of the Property.
Notice of Sale. Lender shall give Grantor reasonable notice of the time and
place of any public sale of the Personal Property or of the time after which any
private safe or other intended disposition at the Personal Property is to be
made. Reasonable notice shall mean notice given at least ten (10) days before
the time of the sale or disposition.
Waiver; Election of Remedies. A waiver by any party of a breach of a
provision of this Mortgage shall not constitute a waiver of or prejudice the
party's rights otherwise to demand strict compliance with that provision or any
other provision. Election by Lender to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or take action
to perform an obligation of Grantor under this Mortgage after failure of Grantor
to perform shall not affect Lender's right to declare a default and exercise its
remedies under this Mortgage.
Attorneys' Fees; Expenses. If Lender institutes any suit or action to
enforce any of the terms of this Mortgage, Lender shall be entitled to recover
such sum as the court may adjudge reasonable as attorneys' fees at trial and on
any appeal. Whether or not any court action is involved, all reasonable expenses
incurred by Lender that in Lender's opinion are
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necessary at any time for the protection of its interest or the enforcement of
its rights shall become a part of the Indebtedness payable on demand and shall
bear interest from the date of expenditure until repaid at the rate provided for
in the Note. Expenses covered by this paragraph include, without limitation,
however subject to any limits under applicable law, Lender's attorneys' fees and
Lender's legal expenses whether or not there is a lawsuit, including attorneys'
fees for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals and any anticipated post-judgment
collection services, the cost of searching records, obtaining title reports
(including foreclosure reports), surveyors' reports, and appraisal fees, and
title insurance, to the extent permitted by applicable law. Grantor also will
pay any court costs, in addition to all other sums provided by law.
NOTICES TO GRANTOR AND OTHER PARTIES. Any notice under this Mortgage,
including without limitation any notice of default and any notice of sale to
Grantor, shall be in writing, may be sent by telefacsimile, and shall be
effective when actually delivered, or when deposited with a nationally
recognized overnight courier, or, if mailed, shall be deemed effective when
deposited in the United States mail first class, certified or registered mail,
postage prepaid, directed to the addresses shown near the beginning of this
Mortgage. Any party may change its address for notices under this Mortgage by
giving formal written notice to the other parties, specifying that the purpose
of the notice is to change the party's address. All copies of notices of
foreclosure from the holder of any lien which has priority over this Mortgage
shall be sent to Lender's address, as shown near the beginning of this Mortgage.
For notice purposes, Grantor agrees to keep Lender informed at all times of
Grantor's current address.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Mortgage:
Amendments. This Mortgage, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Mortgage. No alteration of or amendment to this Mortgage shall be
effective unless given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
Annual Reports. If the Property is used for purposes other than Grantor's
residence, Grantor shall furnish to Lender, upon request, a certified statement
of net operating income received from the Property during Grantor's previous
fiscal year in such form and detail as Lender shall require. "Net operating
income" shall mean all cash receipts from the Property less all cash
expenditures made in connection with the operation of the Property.
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Applicable Law. This Mortgage has been delivered to Lender and accepted by
Lender in the State of New Jersey. This Mortgage shall be governed by and
construed in accordance with the laws of the State of New Jersey.
Caption Headings. Caption headings in this Mortgage are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Mortgage.
Merger. There shall be no merger of the interest or estate created by this
Mortgage with any other interest or estate in the Property at any time held by
or for the benefit of Lender in any capacity, without the written consent of
Lender.
Multiple Parties. All obligations of Grantor under this Mortgage shall be
joint and several, and all references to Grantor shall mean each and every
Grantor. This means that each of the persons signing below is responsible for
all obligations in this Mortgage.
No Joint Venture or Partnership. The relationship of Grantor and Lender
created by this Mortgage is strictly that of debtor-creditor, and nothing
contained in this Mortgage or in any of the Related Documents shall be deemed or
construed to create a partnership or joint venture between Grantor and Lender.
Severability. If a court of competent jurisdiction finds any provision of
this Mortgage to be invalid or unenforceable as to any person or circumstance,
such finding shall not render that provision invalid or unenforceable as to any
other persons or circumstances. If feasible, any such offending provision shall
be deemed to be modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall be stricken
and all other provisions of this Mortgage in all other respects shall remain
valid and enforceable.
Successors and Assigns. Subject to the limitations stated in this Mortgage
on transfer of Grantor's interest, this Mortgage shall be binding upon and inure
to the benefit of the parties, their successors and assigns. If ownership of the
Property becomes vested in a person other than Grantor, Lender, without notice
to Grantor, may deal with Grantor's successors with reference to this Mortgage
and the Indebtedness by way of forbearance or extension without releasing
Grantor from the obligations of this Mortgage or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the performance of this
Mortgage.
Waivers and Consents. Lender shall not be deemed to have waived any rights
under this Mortgage (or under the Related Documents) unless such waiver is in
writing and signed by
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Lender. No delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by any party of a
provision of this Mortgage shall not constitute a waiver of or prejudice the
party's right otherwise to demand strict compliance with that provision or any
other provision. No prior waiver by Lender, nor any course of dealing between
Lender and Grantor, shall constitute a waiver of any of Lender's rights or any
of Grantor's obligations as to any future transactions. Whenever consent by
Lender is required in this Mortgage, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent instances
where such consent is required.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND
GRANTOR AGREES TO ITS TERMS. GRANTOR ACKNOWLEDGES RECEIPT, WITHOUT CHARGE, OF A
TRUE AND CORRECT COPY OF THIS MORTGAGE.
GRANTOR:
000 XXXXXXXX XXXXXX LLC
By: _________________________(SEAL) By: _______________________(SEAL)
XXXXXXX XXXXXXXXX, Manager XXXXXX X. XXXXXXX, Member
Signed, acknowledge and delivered in the presence of:
X _________________________
Witness
X _________________________
Witness
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LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF )
)ss
COUNTY OF )
BE IT REMEMBERED that on this ___ day of ____________, 19__, before me, the
subscribers, personally appeared XXXXXXX XXXXXXXXX, Member of 000 XXXXXXXX
XXXXXX LLC; and XXXXXX X. XXXXXXX, Member of 000 XXXXXXXX XXXXXX LLC who, I am
satisfied, are the persons who signed the within instrument, and they
acknowledged that they signed the within instrument, and that the within
instrument is the voluntary act and deed of such limited liability company.
___________________________
Notary Public
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Schedule A
All that certain tract, lot and parcel of land lying and being in the Town
of Phillipsburg, County of Xxxxxx, and State of New Jersey, being more
particularly described as follows:
BEGINNING AT A POINT IN THE NORTHERLY RIGHT OF WAY OF XXXXXXX STREET, SAID
POINT BEING THE SOUTHEASTERLY XXXXXX XX XXXXX 0000, XXX 0 XXXXX XXX OR FORMERLY
OF THE NORTON PARTNERSHIP AND THE POINT OF BEGINNING REFERRED TO IN A DEED
BETWEEN XXXXXXX X. XXXXXX, XX. , AND XXXXXXX X. XXXXXX, DATED NOVEMBER 6, 1985
RECORDED IN BOOK 938 PAGE 115 AND BEING ALSO DISTANT 367.33 FEET IN A
NORTHEASTERLY DIRECTION ALONG THE NORTHWESTERLY SIDE LINE OF XXXXXXX STREET FROM
ITS INTERSECTION WITH THE NORTHEASTERLY SIDE LINE OF XXXXXXXX STREET AND RUNNING
THENCE
(1) ALONG THE EASTERLY LINE OF LOT 3, NORTH THIRTY-SEVEN DEGREES,
FIFTY-THREE MINUTES, TWENTY-SEVEN SECONDS WEST (N. 37(degree) 53' 270") A
DISTANCE OF ONE HUNDRED NINETY-FIVE AND TWENTY-NINE HUNDREDTHS FEET (195.29') TO
A POINT IN THE SOUTHERLY RIGHT OF WAY OF XXXXXXXX STREET, BEING THE
NORTHEASTERLY CORNER OF LOT 3 THENCE
(2) ALONG THE SOUTHERLY RIGHT OF WAY OF XXXXXXXX STREET, NORTH SIXTY-EIGHT
DEGREES, FORTY-NINE MINUTES, NO SECONDS EAST (N. 68(degree) 49' 00"), A DISTANCE
OF ONE HUNDRED THIRTY-FIVE AND NINETY-FOUR HUNDREDTHS FEET (135.94') TO A POINT,
BEING THE NORTHWESTERLY XXXXXX XX XXXXX 0000, XXX 0 XXXXX XXX OR FORMERLY OF
XXXXXXX X. XXXXXX, THENCE
(3) ALONG THE WESTERLY LINE OF LOT 1, SOUTH THIRTY-EIGHT DEGREES,
THIRTY-EIGHT MINUTES, FIFTY-THREE SECONDS EAST (S. 38(degree) 38' 53") A
DISTANCE OF ONE HUNDRED FIFTY-EIGHT AND SEVENTY-FOUR HUNDREDTHS FEET (158.74')
TO A POINT IN THE NORTHERLY RIGHT OF WAY OF XXXXXXX STREET, BEING THE
SOUTHWESTERLY CORNER OF LOT 1 THENCE
(4) ALONG THE NORTHERLY RIGHT OF WAY OF XXXXXXX STREET, SOUTH FIFTY-THREE
DEGREES, TWELVE MINUTES, NO SECONDS WEST (S. 53(degree) 12' 00") A DISTANCE OF
ONE HUNDRED THIRTY-TWO AND THIRTY-TWO HUNDREDTHS FEET (132.32') TO THE POINT AND
PLACE OF BEGINNING
ALL IN ACCORDANCE WITH A SURVEY PREPARED BY XXXXXXX ASSOCIATES, INC., L.S.,
DATED DECEMBER 23, 1996.
(NOTE: SAID TAX LOT AND BLOCK REPORTED FOR INFORMATION ONLY)
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