AC1 262846v1 11/07/03
FIRST MORTGAGE AND SECURITY AGREEMENT
S.V.G. PROPERTIES, L.P., a New Jersey limited partnership
to
NEW YORK COMMUNITY BANK
Premises:
The land affected by this instrument is known
as Spring Village Apartments, located at 000
Xxxxxx Xxxxxx, shown as County Parcel #41-00-
01789-00 on the tax map of the Borough of
Xxxxxx Xxxx, Delaware County, Commonwealth of
Pennsylvania
RECORD AND RETURN TO:
NEW YORK COMMUNITY BANK
000 XXXXXXX XXXXXX, XXXXXXXX, XX 00000
ATTN: MULTIFAMILY DEPARTMENT
FIRST MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE, made the 7th day of November, 2003, between
S.V.G. PROPERTIES, L.P., a limited partnership duly organized and
existing under the laws of the State of New Jersey, having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as the "Mortgagor"),
and NEW YORK COMMUNITY BANK, a New York state chartered banking
institution duly organized and validly existing under and by
virtue of the laws of the State of New York, having an office at
000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter
referred to as the "Mortgagee"),
WITNESSETH, that to secure the payment of a certain first
mortgage note given by Mortgagor to Mortgagee of even date
herewith (the "Note") in the principal sum of FOUR MILLION
DOLLARS ($4,000,000.00) (the "Principal" or the "Debt"), lawful
money of the United States of America, with interest thereon, to
be paid according to the terms of the Note or any of the other
Lien Instruments (as such term is hereinafter defined), together
with such charges, payments, expenses, taxes and fees accrued and
unpaid or incurred that are the obligation of Mortgagor to pay
under the terms and conditions of this Mortgage (hereinafter, the
"Indebtedness"), the Mortgagor hereby grants and mortgages to the
Mortgagee all that certain lot, piece or parcel of land, with the
buildings and improvements thereon erected, situate, lying and
being in the Borough of Xxxxxx Hill, Delaware County, and
Commonwealth of Pennsylvania, which land is bounded and described
as follows, to wit:
(SEE SCHEDULE "A" ANNEXED HERETO AND MADE A PART HEREOF)
TOGETHER WITH
A. All the land known as Spring Village Apartments,
located at 000 Xxxxxx Xxxxxx, shown as County Parcel #41-00-01789-
00 on the tax map of the Borough of Xxxxxx Xxxx, Delaware County,
Commonwealth of Pennsylvania, all as more particularly described
in Schedule A annexed hereto and made a part hereof (the "Land").
B. All buildings, structures and improvements of
every nature whatsoever now or hereafter situated on the Land
(the "Improvements").
C. All fixtures, machinery, appliances, materials,
equipment, furniture and personal property of every nature
whatsoever now or hereafter owned by the Mortgagor and located in
or on, or delivered or attached to, or used, or intended to be
used, in connection with the operation of, or with construction,
reconstruction or remodeling on, the Land or the Improvements,
including all extensions, additions, improvements, betterments,
renewals and replacements to any of the foregoing and all of the
right, title and interest of the Mortgagor in and to any such
personal property or fixtures together with the benefit of any
deposits or payments now or hereafter made by the Mortgagor or on
its behalf with regard thereto (the "Personal Property").
D. All right, title and interest of the Mortgagor, if
any, in and to the land in the bed of the streets or highways
abutting the Land to the center line thereof; all easements,
rights of way, strips and gores of land, streets, ways,
sidewalks, curbs, alleys, passages, sewer rights, waters, water
courses, water, drainage, riparian and littoral rights and
powers, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments, remainders, reversions and
appurtenances whatsoever, in any way belonging, relating or
appertaining to the Land or the Improvements, or which hereafter
shall in any way belong, relate or be appurtenant thereto,
whether now owned or hereafter acquired by the Mortgagor (the
"Appurtenances").
E. All leases, lettings, occupancy agreements and
licenses (collectively, the "Leases") of the Land and/or the
Improvements or any part thereof now or hereafter entered into
and all right, title and interest of the Mortgagor thereunder
(including, without limitation, the cash and securities deposited
thereunder), the right to receive and collect the rents, issues
and profits from the Leases (the "Rents") and all the estate,
right, title, interest, property, possession, claim and demand
whatsoever, at law as well as in equity, of the Mortgagor of, in
and to, and all proceeds of any sales or other dispositions of,
the property described in Paragraphs (A), (B), (C) and (D) above
and this Paragraph (E).
F. All proceeds of and any unearned premiums on any
insurance policies covering the Improvements or the Personal
Property or the Rents including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments or
settlements made in lieu thereof.
G. All awards ("Awards"), heretofore made and
hereafter to be made by any municipal, state or federal
authorities to the Mortgagor and all subsequent owners of the
property described above in Paragraphs (A) through (E) including
any awards for any changes of grade of streets affecting the
property described above in Paragraphs (A) through (E) as the
result of the exercise of the power of eminent domain (a
"Taking").
H. All other agreements, such as construction
contracts, architects' agreements, engineers' agreements, utility
contracts, maintenance agreements, management agreements, service
contracts, permits, licenses, certificates and entitlements in
any way relating to the development, construction, use,
occupancy, operation, management, enjoyment, acquisition or
ownership of the Land and Improvements (the "Property
Agreements").
I. All the other estate, right, title, interest, use,
possession, property, claim and demand whatsoever, contract
rights, general intangibles, actions and rights in action,
relating to the property described above in Paragraphs (A)
through (H) and proceeds, products, replacements, additions,
substitutions, renewals and accessions of any of the foregoing.
All the property, interests and rights referred to in
Paragraphs (A) through (I) above and any additional property,
interests or rights hereafter acquired by the Mortgagor and
subject to the lien of this Mortgage or intended to be so are
referred to in this Mortgage as the "Mortgaged Premises".
BEING the same premises acquired by the Mortgagor by deed
from Maridon Realty Associates, L.P., a Delaware limited
partnership, dated May 15, 1987 and recorded on May 20, 1987 in
the Office of the Clerk of Delaware County in Record Book 465,
page 427, on which premises this is a first mortgage and intended
to be recorded.
The Mortgagor hereby agrees to repay the Indebtedness until
the whole of the Indebtedness shall be paid, however, the
Mortgagee reserves the right to extend or modify the Note and
this Mortgage in any manner or terms without regard to third
parties.
AND the Mortgagor covenants with the Mortgagee as follows:
1. That the Mortgagor will pay the Indebtedness as
hereinbefore provided according to the terms of the Note, this
Mortgage and the other Lien Instruments (as hereinafter defined),
and keep and perform each and every term, covenant, and condition
of the Note, this Mortgage, and the other Lien Instruments. Each
and every term, covenant and condition of the Note and the other
Lien Instruments is hereby incorporated herein by reference as
though fully set forth herein at length.
2. A. That the Mortgagor will keep the Improvements on
the Mortgaged Premises continuously insured against loss or
damage by fire, with extended coverage, and against such other
hazards as Mortgagee may reasonably require (including, without
limitation, multi-peril hazard insurance with extended coverage
endorsement, general liability insurance, boiler explosion
insurance, rent loss or business interruption coverage, and flood
insurance, if applicable) in an insurance company licensed to do
business in the state in which the Mortgaged Premises is located
and otherwise satisfactory to Mortgagee, in such forms and in
such total amounts as Mortgagee may require from time to time;
that Mortgagor will deliver copies of the policies to the
Mortgagee; and that Mortgagor will reimburse the Mortgagee for
any premiums paid for insurance made by the Mortgagee on the
Mortgagor's default in so insuring the Improvements or in so
assigning and delivering the policies.
B. In addition to the foregoing insurance, the
Mortgagor will, at its expense, deliver to the Mortgagee
additional insurance policies and endorsements including war
damage insurance, if any be required by the Mortgagee, to cover
all risks to the Mortgagee or hazard to any Improvements erected
upon the Mortgaged Premises, of every kind, type and description,
for such periods, in such amounts, and by such method of payment
therefor, satisfactory to the Mortgagee. It is hereby agreed
that if the Mortgagee shall accept a multiple peril insurance
policy or any other policy containing coverage not required by
the Mortgagee, with or without an installment premium
endorsement, such acceptance shall not constitute the Mortgagee
an agent of the Mortgagor in the procurement, renewal, or
replacement of all or any of the coverage included in said
policy, or in the collection of losses or filing proofs of loss.
The Mortgagee is hereby released and discharged from all claims
and demands whatsoever arising by reason of any matter relative
to, or incident to any policy or policies, during the term or
terms thereof, or in renewing or replacing said policy or
policies.
C. The Mortgagor hereby pledges to the Mortgagee the
unearned premiums on all insurance policies furnished it
hereunder and consents to the cancellation thereof in the event
it becomes the purchaser in any action to foreclose said
Mortgage. Such unearned premium shall be applied against the
monies due the Mortgagee. The Mortgagor shall fully and timely
comply with the terms and conditions of any of said policies. In
the event of a loss, Mortgagor shall give immediate written
notice to the insurance carrier and to the Mortgagee. Mortgagor
hereby authorizes and empowers the Mortgagee, as attorney-in-fact
for the Mortgagor, to make proof of loss, to adjust and
compromise and claim under the insurance policies, to appear in
and prosecute any action arising from such insurance policies, to
collect and receive insurance proceeds, and to deduct therefrom
Mortgagee's expenses incurred in the collection of such proceeds;
provided however, that nothing contained in this subparagraph
shall require the Mortgagee to incur any expense or to take any
action hereunder. Said power of attorney is coupled with an
interest in the subject matter of this Mortgage. The Mortgagor
further authorizes Mortgagee, at Mortgagee's option, to hold the
balance of such proceeds to be used to reimburse the Mortgagor
for the cost of reconstruction or repair of the Mortgaged
Premises, or to apply the balance of such proceeds to the payment
of the Indebtedness secured by this Mortgage, whether or not then
due. If the insurance proceeds are held by the Mortgagee to
reimburse the Mortgagor for the cost of restoration and repair
of the Mortgaged Premises, the Mortgaged Premises shall be
restored to the equivalent of its original condition or such
other condition as the Mortgagee may approve in writing.
Mortgagee may, at Mortgagee's option, condition disbursement of
said proceeds on Mortgagee's approval of such plans and
specifications of an architect satisfactory to Mortgagee,
contractor's cost estimates, architect's certificates, waivers of
liens, sworn statements of mechanics and materialmen and such
other evidence of costs, percentage completion of construction,
application of payments, and satisfaction of liens as Mortgagee
may reasonably require. If the insurance proceeds are applied to
the payment of the sum secured by this Mortgage, any such
application of proceeds to the Indebtedness shall not extend or
postpone the due dates of the monthly payments herein or change
the amounts of such installments.
D. All policies, including policies for any amounts
carried in excess of the required minimum and policies not
specifically required by Mortgagee, shall be in form satisfactory
to Mortgagee, shall be maintained in full force and effect, shall
be delivered to Mortgagee, with premiums prepaid, shall be
endorsed with a standard noncontributory mortgagee clause in
favor of Mortgagee, and shall provide for at least thirty (30)
days' notice of cancellation to Mortgagee. In addition,
Mortgagor shall at all times be protected by comprehensive
general public liability, property damage and workmen's
compensation insurance policies, if applicable, such coverages at
all times to be evidenced by current certificates of insurance
issued to Mortgagee providing for thirty (30) days' prior written
notice of cancellation or alteration of coverage. If the
insurance, or any part thereof, shall expire, or be withdrawn, or
become void by Mortgagor's breach of any condition thereof, or
become void or unsafe by reason of the failure of impairment of
the capital of any company in which the insurance may then be
carried, or if for any reasons whatever the insurance shall be
unsatisfactory to Mortgagee, Mortgagor shall place new insurance
on the Mortgaged Premises, satisfactory to Mortgagee. All
renewal policies, with premiums paid, shall be delivered to
Mortgagee at least twenty (20) days before expiration of the old
policies.
3. That the whole of the Indebtedness shall become due at
the option of the Mortgagee upon the occurrence of any of the
following events, either individually, jointly or collectively
("Event(s) of Default"): (a) default in the payment of any
installment of principal and interest, or in the making of any
deposit pursuant hereto, and such default continues for fifteen
(15) days; or (b) after default and such default continues for
fifteen (15) days after notice in writing by Mortgagee to
Mortgagor in either: (i) the payment of any tax, water, or sewer
assessment; or (ii) assigning and delivering the policies
insuring the Improvements against loss by fire or other hazard,
or reimbursing the Mortgagee for premiums paid on such insurance,
as hereinbefore provided; or (iii) furnishing a statement of the
amount due on the Mortgage and whether any offsets or defenses
exist against the Indebtedness, as hereinafter provided; or (iv)
exhibiting to the Mortgagee receipts showing payment of all
taxes, water or sewer rents and assessments; or (v) the failure
to provide annual financial statements, as hereinafter provided;
or (c) the occurrence of any of the following events or
conditions which continue for fifteen (15) days after notice in
writing by Mortgagee to Mortgagor: (i) the actual or threatened
demolition or removal of any Improvement on the Mortgaged
Premises without the written consent of the Mortgagee; or (ii)
the assignment of the rents of the Mortgaged Premises or any part
thereof without the written consent of the Mortgagee; or (iii) if
the Improvements on the Mortgaged Premises is not maintained in
reasonably good repair; or (iv) the failure to comply with any
requirement or order or notice of violation of law or ordinance
issued by any governmental department claiming jurisdiction over
the Mortgaged Premises within three (3) months from the issuance
thereof (or such lesser time if required by such law or
ordinance); or (v) if on application of the Mortgagee and upon
Mortgagor's failure to maintain required insurance hereunder, two
or more fire insurance companies lawfully doing business in the
state where the Mortgaged Premises is located refuse to issue
policies insuring the Improvements on the Mortgaged Premises; or
(vi) the removal, demolition or destruction in whole or in part
of any of the Personal Property covered hereby, unless first or
simultaneously the same are promptly replaced by similar articles
of Personal Property at least equal in quality and condition to
those removed, demolished or destroyed, free from any liens or
encumbrances thereon and free from any reservation of title
thereto; or (vii) the failure of any owner as tenant, lessee, or
otherwise, to comply with all statutes, orders, requirements or
decrees relating to the Mortgaged Premises by any Federal, State
or municipal authority; or (viii) the Mortgagor causes, permits
or suffers to be permitted, a change in the use of any part of
the Mortgaged Premises for the purposes intended at the making of
this Mortgage, including but not limited to, a change in the
zoning classification, without the Mortgagee's written consent;
or (ix) the Mortgagor's unreasonable refusal to permit the
Mortgagee, its agents or employees to make an inspection of the
Mortgaged Premises; or (x) the failure of Mortgagor to keep,
observe and perform any of the other covenants, conditions or
agreements contained in this Mortgage, the Note, and/or the other
Lien Instruments.
4. In the event that Mortgagor should fail to pay taxes,
assessments, water and sewer charges or other lienable claims or
insurance premiums, or fail to make necessary repairs, or shall
permit waste, or otherwise fail to comply with their obligations
hereunder or under the Note or any other document executed in
connection with this Mortgage, then Mortgagee, at its election,
with or without notice to Mortgagor, shall have the right to make
any payment or expenditure which Mortgagor should have made, or
which Mortgagee deems advisable to protect the security of this
Mortgage or the Mortgaged Premises, without prejudice to any of
the Mortgagee's rights or remedies available hereunder or
otherwise, at law or in equity. All such sums, as well as costs,
advanced by Mortgagee pursuant to this Mortgage shall be due
immediately from Mortgagor to Mortgagee, and shall be secured
hereby, and shall bear interest at the Default Rate as defined in
Paragraph 31, below, from the date of payment by Mortgagee until
the date of repayment. In the event of foreclosure of this
Mortgage, any such advances by Mortgagee after the entry of
judgment for taxes, insurance or other sums necessary to preserve
the Mortgaged Premises ("Post Judgment Advances"), will be deemed
secured hereby and the Mortgage will not merge into any judgment
of foreclosure to the extent of such Post Judgment Advances.
5. That the holder of this Mortgage, in an action to
foreclose it, shall be entitled to the appointment of a receiver
without notice and irrespective of the adequacy of the security,
and the Mortgagor will pay a reasonable rental monthly in advance
to any such receiver.
6. That the Mortgagor will pay all insurance premiums,
taxes, assessments and water/sewer rates, and upon request will
submit to the Mortgagee for inspection receipted bills evidencing
such payment, and in default thereof, the Mortgagee may pay the
same. Any such items paid by the Mortgagee, and any other
advances, charges, liens, costs, fees and disbursements made or
incurred by the Mortgagee in connection with the Mortgaged
Premises and to protect its interest therein shall be added to
the indebtedness secured by this Mortgage. The Mortgagor shall
promptly discharge any lien or encumbrance which has priority
over or equality with the lien of this Mortgage and shall not
allow any liens inferior to this Mortgage to be perfected against
the Mortgaged Premises, and if so perfected shall also promptly
discharge same.
7. That the Mortgagor within five (5) days upon request in
person or within ten (10) days upon request by mail shall furnish
a written statement duly acknowledged of the amount due on this
Mortgage and whether any offsets or defenses exist against the
Mortgage Debt.
8. The Mortgagor covenants that within one hundred twenty
(120) days after the end of each of the Mortgagor's fiscal years,
or within thirty (30) days of the request of the Mortgagee, the
Mortgagor, during the life of this Mortgage, shall furnish to the
Mortgagee: (i) an updated and detailed annual gross operating
income and expense statement for the Mortgaged Premises, prepared
by a certified public accountant and certified by Mortgagor to be
complete, true and accurate; (ii) a current rent roll; and (iii)
copies of all rent filings for each unit as required by any
governmental authorities having jurisdiction over such filings,
if any. The Mortgagor agrees that the Mortgagee, or its
authorized agents, shall have the privilege of making inspections
of the Mortgaged Premises during the life of this Mortgage. In
the event that Mortgagor fails to deliver the foregoing within
the stipulated time and Mortgagee is forced to request the same
(either by facsimile, e-mail, regular mail, or telephone), then
Mortgagor will be charged a $25.00 fee for each request made by
Mortgagee, until such time as the required information is
received in its entirety.
9. That the Mortgagor is lawfully seised of the estate
hereby conveyed and has the right to mortgage, grant, convey, and
assign the Mortgaged Premises. The Mortgagor hereby warrants the
title of the Mortgaged Premises, and agrees to defend generally
specially the title to the Mortgaged Premises against all claims
and demands adverse to its own.
10. That in case of a foreclosure sale, the Mortgaged
Premises, or so much thereof as may be affected by this Mortgage,
may be sold separately or in one parcel.
11. In the event: (a) the Mortgagee retains counsel with
respect to the enforcement of the Note, this Mortgage, or any
other document or instrument given to the Mortgagee by the
Mortgagor (whether or not an action or proceeding is commenced);
or (b) any action or proceeding is commenced to which action or
proceeding the Mortgagee is made a party or in which it becomes
necessary to defend or uphold the lien of this Mortgage, then, in
any such event, all sums incurred by the Mortgagee, including
without limitation, reasonable attorneys' fees, costs,
disbursements, allowances, and additional allowances shall be
paid by Mortgagor, together with interest thereon at the rate
established in Paragraph 31 of this Mortgage, and any such sum
and the interest thereon shall be a lien on the Mortgaged
Premises, prior to any right, title to, interest in or claim upon
said premises attaching or accruing subsequent to the lien of
this Mortgage and by the Note which it secures.
12. It is agreed by the Mortgagor that in the event
proceedings are brought to foreclose this Mortgage, there shall
be included in the computation of the amount due, the amount of a
reasonable fee for attorney's services in the foreclosure
proceedings, as well as all disbursements, allowances, additional
allowances and costs provided by law.
13. That upon the occurrence of an Event of Default, the
entire unpaid balance of the Indebtedness secured by this
Mortgage shall become immediately due and payable, at the option
of Mortgagee, without notice or demand. When the entire
indebtedness shall become due and payable, either because of
maturity or because of the occurrence of any Event of Default, or
otherwise, then forthwith, Mortgagee may institute an action of
mortgage foreclosure, or take such other action at law or in
equity for the enforcement of this Mortgage and realization on
the mortgaged security or any other security herein or elsewhere
provided for, as the law may allow, and may proceed therein to
final judgment and execution for the entire unpaid balance of the
Indebtedness, with interest at the rate(s) stipulated in the
Note, together with all other sums due by Mortgagor in accordance
with the provisions of the Note and this Mortgage, including all
sums which may have been loaned by Mortgagee to Mortgagor after
the date of this Mortgage, and all sums which may have been
advanced by Mortgagee for taxes, water or sewer rents, other
lienable charges or claims, insurance or repairs or maintenance,
and all costs of suit. Mortgagor authorizes Mortgagee at its
option to foreclose this Mortgage subject to the rights of any
tenants of the Mortgaged Premises, and the failure to make any
such tenants parties defendant to any such foreclosure
proceedings and to foreclose their rights will not be asserted by
Mortgagor as a defense to any proceedings instituted by Mortgagee
to recover the indebtedness secured hereby or any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged
Premises; however, nothing herein contained shall prevent
Mortgagor from disputing in any proceedings the amount of the
deficiency or the sufficiency of any bid at such foreclosure
sale.
Notwithstanding anything to the contrary contained in the
foregoing, upon the occurrence of an Event of Default, the
Mortgagee shall have the right forthwith without notice or
demand, without the commencement of any action to foreclose this
Mortgage and without the appointment of any receiver, to enter
upon and take possession of the Mortgaged Premises and thereby
become mortgagee in possession thereof or agent of the then owner
of the Mortgaged Premises, with the right to let the Mortgaged
Premises and receive all rents, issues and profits thereof which
are overdue, due or to become due, and to apply the same, after
payment of all necessary charges and expenses, on account of the
amount hereby secured; and in any of the events aforesaid, the
Mortgagor hereby unconditionally surrenders its possession and
all rents, issues and profits of the Mortgaged Premises to the
Mortgagee; and under the circumstances aforesaid, the Mortgagor
for itself and any subsequent owner of the Mortgaged Premises
hereby agrees to pay to the Mortgagee in advance a reasonable
rental for any portion of the Mortgaged Premises occupied by
Mortgagor and in default of so doing, hereby agrees that
Mortgagor may be dispossessed by the usual summary proceeding,
and further that any tenant defaulting in the payment to the
Mortgagee of any rent may be likewise dispossessed by the
Mortgagee as Mortgagee in possession of the Mortgaged Premises,
or as agent of the then owner of the Mortgaged Premises. The
rights and remedies herein afforded to the Mortgagee shall be
cumulative and supplementary to and not exclusive of any other
rights and remedies afforded the holder of this Mortgage, and its
accompanying Note or obligation. All of the provisions of this
clause shall inure to the benefit of the Mortgagee and of any
subsequent holder of this Mortgage and shall be binding upon the
Mortgagor and each subsequent owner of the Mortgaged Premises.
14. If the Principal represents a construction loan, the
Mortgagor will receive the advances secured by this Mortgage and
will hold the right to receive such advances as a trust fund to
be applied first for the purpose of paying the cost of the
improvement, and that the Mortgagor will apply the same first to
the payment of the cost of the improvement before using any part
of the total of the same for any other purpose.
15. That if the Note secured by this Mortgage is payable in
monthly installments, then, in order to more fully protect the
security of the Mortgage, the Mortgagor further agrees to pay to
the Mortgagee (unless expressly waived in writing by the
Mortgagee), on each monthly installment date, a sum equal to one-
twelfth (1/12th) of the amount, as estimated from time to time by
the Mortgagee, of the annual real estate taxes, water and sewer
rents, and assessments, if any (the "Municipal Charges"), to
become due as charges on or with respect to the Mortgaged
Premises during the twelve (12) calendar months following the
date of the first monthly installment due hereunder and during
the twelve (12) calendar months following each anniversary of
such date; and one twelfth (1/12th) of the amount of the annual
premiums for the hazard or other insurance required to be carried
by the terms of said Mortgage, and for any additional coverage
included by the Mortgagor in the policy provided by Mortgagor
pursuant to the terms hereof (the "Insurance Charges", and
together with the Municipal Charges, the "Carrying Charges"),
which payment shall be known for the purposes hereof as the
monthly payment to cover Carrying Charges of the Mortgaged
Premises, so that no later than one (1) month prior to the
respective due dates for such Carrying Charges there shall be in
the hands of the Mortgagee amounts sufficient to pay such
Carrying Charges in full. Although each such monthly payment is
to be in a lump sum, each component thereof may be held
separately by the Mortgagee, without interest, for, and applied
only to, the particular item for which it was paid over by the
Mortgagor, unless the Mortgagee in its sole discretion elects
otherwise, or applicable law requires otherwise. The Mortgagee
may require the Mortgagor to pay other impositions affecting the
Mortgaged Premises in a lump sum if the Mortgagee shall deem it
necessary to protect its interest.
If at any time prior to the due date of any particular item
of such Carrying Charges, the Mortgagee calculates that there
will not be in its hands one (1) month prior to such due date a
sum sufficient for the payment of such item in full, the
Mortgagor upon demand shall pay the amount of any such deficiency
to the Mortgagee and upon failure of the Mortgagor to pay such
deficiency within ten (10) days of demand therefor, the unpaid
balance of the principal sum hereof, shall, at the option of the
Mortgagee become immediately due and payable, notwithstanding
that sums for the payment of other items of such Carrying Charges
not yet due may be in the hands of the Mortgagee.
Notwithstanding the foregoing and provided that there exists no
Event of Default hereunder or under any of the other Loan
Documents, the Mortgagee will not require monthly escrows for the
payment of hazard, general liability, boiler and rent loss
coverages provided that Mortgagor maintains insurance coverage
for the same in accordance with the requirements of Paragraph 2
hereof, nor will Mortgagee collect monthly escrows for the
payment of separately metered sewer and water charges.
Any excess of unneeded funds paid hereunder may be refunded
to the Mortgagor at the discretion of the Mortgagee, so long as
all payments are current, and there is no default under this
instrument or the accompanying Note or obligation, and, provided
further, that there are no judgments or income or other tax liens
against the Mortgagor or the Mortgaged Premises.
If there shall be a default hereunder resulting in a
judicial sale of the Mortgaged Premises, or if the Mortgagee
acquires the Mortgaged Premises in any other way after such
default, the Mortgagee shall have the right to apply the balance
then remaining in said fund to cover such Carrying Charges
against the balance of the Indebtedness then unpaid, or to the
payment of any or all of such Carrying Charges without obligation
to account therefor to the Mortgagor. The funds deposited by the
Mortgagor pursuant to this Paragraph 15 are hereby pledged as
additional security for the sums secured by this Mortgage.
16. In the event that any payment of principal, interest,
or monthly escrow installment is not actually received by the
Mortgagee within fifteen (15) days from its due date, a late
charge of four (4c) cents for each dollar ($1.00) so overdue
shall be charged by the Mortgagee to the Mortgagor for the
purpose of defraying the expense incident to handling such
delinquent payment. Also, where a check delivered to the
Mortgagee for any monies due hereunder is dishonored, a
reasonable service charge shall be charged to the Mortgagor by
the Mortgagee for handling such check. Any and all charges,
fees, costs, disbursements and expenses payable by Mortgagor
under this Mortgage, the Note, or other Lien Instruments shall be
immediately due and payable on the date they are incurred
17. In the event that this Mortgage and its accompanying
Note are executed by a corporation, the Mortgagor represents to
the Mortgagee that the aforesaid Mortgage and accompanying Note
or obligation have been executed and delivered by authority of
the Board of Directors of the Mortgagor; and with the consent of
the holders of not less than two-thirds (2/3) of the total number
of shares of capital stock of the Mortgagor outstanding, entitled
to vote thereon.
18. That if the Mortgaged Premises shall be abandoned by
the Mortgagor or any successors in title, the Mortgagee shall be
entitled to take possession of the same to protect and conserve
its security.
19. Mortgagor, at Mortgagee's request, shall furnish
Mortgagee with executed copies of all leases now existing or
hereafter made of all or any part of the Mortgaged Premises.
Mortgagor shall not, without Mortgagee's written consent,
execute, modify, surrender or terminate, either orally or in
writing, any lease now existing or hereafter made of all or any
part of the Mortgaged Premises providing for a term of two (2)
years or more.
20. The Mortgagor covenants and agrees that any and all
awards in condemnation, including any awards for any change of
grade of streets affecting or abutting the Mortgaged Premises,
are hereby assigned to the Mortgagee, and the Mortgagee is hereby
authorized, directed and empowered to collect and receive the
proceeds of any such awards from the authorities making the same
and to give proper receipts and acquittances therefor, and to
apply the same toward the Indebtedness owing on account of this
Mortgage and the Note it secures, notwithstanding the fact that
the amount owing thereon may not be then due and payable; and,
upon request by the holder of this Mortgage, it agrees to make,
execute and deliver any and all assignments and other instruments
sufficient for the purpose of assigning the aforesaid awards to
the holder of this Mortgage, free, clear and discharged of any
and all encumbrances of any kind or nature whatsoever; and, in
case of a condemnation or taking of the Mortgaged Premises by any
of the aforementioned authorities prior to the maturity of the
Note, it covenants and agrees to pay the difference in the
interest received by the said Mortgagee from the aforesaid
condemnor or taking authority and the interest provided for
herein from the date of such condemnation or taking to the date
and in the manner payment can be made pursuant to the privileges
and terms hereof and the Note, as if no condemnation had taken
place.
21. That any failure by the Mortgagee to insist upon the
strict performance by the Mortgagor of any of the terms and
provisions hereof shall not be deemed to be a waiver of any of
the terms and provisions hereof, and the Mortgagee,
notwithstanding any such failure, shall have the right thereafter
to insist upon the strict performance by the Mortgagor of any and
all of the terms and provisions of this Mortgage to be performed
by the Mortgagor; that the rights of the Mortgagee hereunder
shall be separate, distinct and cumulative and none of them shall
be in exclusion of any other and no act of the Mortgagee shall be
construed as an election to proceed under any one provision
hereof to the exclusion of any other provision.
22. This Mortgage is intended to be a security agreement
pursuant to the Uniform Commercial Code for all of the Mortgaged
Property specified herein which under applicable law may be
subject to a security interest pursuant to the Uniform Commercial
Code and Mortgagor hereby grants Mortgagee a security interest in
such items and the Mortgagor hereby authorizes the Mortgagee to
file any financing statement necessary under the Uniform
Commercial Code in order to perfect the security interest of the
Mortgagee, without requiring the signature of the Mortgagor. The
Mortgagor covenants that it will not make any other financing
statement, lien, encumbrance and/or reservation of title as to
any additions or replacements of such chattels, fixtures or
personal property so covered by this Mortgage without the consent
in writing of the Mortgagee. As additional security for the
payment of the Note, Mortgagor has executed and delivered to the
Mortgagee a certain assignment of leases and rents, form UCC-1
Financing Statements, and other documents dated of even date
herewith (the Note, this Mortgage, the Assignment of Leases and
Rents, UCC-1(s) and other documents are sometimes collectively
referred to herein as the "Lien Instruments").
23. The covenants contained in this Mortgage shall run with
the Land and bind the Mortgagor, the heirs, personal
representatives, successors and assigns of the Mortgagor and all
subsequent owners, encumbrancers, tenants and sub-tenants of the
Mortgaged Premises and shall inure to the benefit of the
Mortgagee, the personal representatives, successors and assigns
of the Mortgagee and all subsequent holders of this Mortgage.
All of the pronouns and relative words herein used shall be read
as if written in the same gender as the Mortgage so requires.
The masculine shall also mean the feminine and neuter, and vice
versa, and the singular shall mean the plural, and vice versa,
whenever the context of this Mortgage shall so require. All
covenants, agreements, obligations and liabilities of the
Mortgagor hereunder, if more than one, shall be joint and
several.
24. The Mortgagee may charge the Mortgagor and the
Mortgagor agrees to pay reasonable fees (including reasonable
attorney's fees) and costs and expenses incurred by the Mortgagee
in obtaining tax searches and proper bills (where realty taxes
are budgeted herein) and its services in processing any ownership
transfers on its records, fire loss payments, substitutions of
bondsmen, releases, modifications, extensions, consents,
easements, special agreements, assignments, reduction
certificates, and satisfactions of mortgage. At the Mortgagee's
option, charges for these items, as well as late charges provided
for in Paragraph 16 above, may be deducted from the funds in the
budget account provided for in Paragraph 15 above.
25. No mortgage, liens, or judgments, other than the lien
of this first Mortgage, shall be placed or allowed against or
encumber the Mortgaged Premises, and if so placed, at the option
of the Mortgagee, the unpaid principal and interest shall become
immediately due and payable.
26. Prepayment.
(a) During the initial five (5) year term of this
Mortgage, Mortgagor may prepay the Indebtedness in whole, upon
thirty (30) days advance written notice to the Mortgagee,
provided that additionally there shall be paid as a premium for
the privilege of so prepaying, an amount equal to the following:
(i) Five percent (5%) of the outstanding Principal if
prepayment occurs during the first (1st), second (2nd), or third
(3rd) years of this Mortgage;
(ii) Four percent (4%) of the outstanding Principal if
prepayment occurs during the fourth (4th) year of this Mortgage;
(iii) Three percent (3%) of the outstanding
Principal if prepayment occurs during the fifth (5th) year of
this Mortgage;
(iv) Two percent (2%) of the outstanding Principal if
prepayment occurs during the sixth (6th) year of this Mortgage;
and
(v) One percent (1%) of the outstanding Principal if
prepayment occurs during the seventh (7th) year of this Mortgage.
(b) Upon the expiration of the seventh (7th) year of this
Mortgage, in the event that the interest rate is adjusted to the
One-Year ARM Rate in accordance with the provisions of paragraph
1(a) of the Note, then Mortgagor may prepay the Indebtedness in
whole upon thirty (30) days advance written notice to the
Mortgagee at any time during the remaining term of this Mortgage
without any prepayment premium.
(c) Upon the expiration of the seventh (7th) year of this
Mortgage, in the event that the interest rate is adjusted to the
Adjusted Fixed Rate in accordance with the provisions of
paragraph 1(b) of the Note, then Mortgagor may prepay the
Indebtedness in whole upon thirty (30) days advance written
notice to the Mortgagee provided that additionally there shall
be paid as a premium for the privilege of so prepaying, an
amount equal to the following:
(i) Five percent (5%) of the outstanding Principal if
prepayment occurs during the eighth (8th) year of this Mortgage;
(ii) Four percent (4%) of the outstanding Principal if
prepayment occurs during the ninth (9th) year of this Mortgage;
(iii) Three percent (3%) of the outstanding
Principal if prepayment occurs during the tenth (10th) year of
this Mortgage;
(iv) Two percent (2%) of the outstanding Principal if
prepayment occurs during the eleventh (11th) year of this
Mortgage; and
(v) One percent (1%) of the outstanding Principal if
prepayment occurs during the twelfth (12th) year of this
Mortgage.
(d) For the purpose of calculating the prepayment premium
as provided in this paragraph, the first (1st) year of this
Mortgage shall commence on the date of this Mortgage and shall
expire at 11:59 P.M. on the day prior to the first (1st)
anniversary of the first (1st) day of the month after the month
in which this Mortgage is dated, unless this Mortgage is dated
the first (1st) day of the month, in which event the first (1st)
year of this Mortgage shall expire at 11:59 P.M. on the day
prior to the first (1st) anniversary of the date of this
Mortgage. Each year of this Mortgage thereafter in succession
shall commence on the expiration of the first (1st) year of this
Mortgage and on the annual anniversary of the day following the
date of expiration of the first (1st) year of this Mortgage,
respectively; and the use of the term "month" shall refer to and
mean a regular calendar month. The above prepayment premium
shall also be due and payable in the event of an acceleration of
payment of the principal balance of this Mortgage after a
default pursuant to the terms of this Mortgage or the Note.
(e) No prepayment premium shall apply to any involuntary
prepayment of the Indebtedness.
27. If any of the following events occurs with respect to
Mortgagor or any other party primarily or secondarily liable for
any of the Mortgagor's obligations to Mortgagee, present or
future, if any, or with respect to any general partner(s),
shareholder(s), or member(s) of Mortgagor, if applicable,
(collectively with the Mortgagor hereafter in this paragraph
referred to as "them"), to wit: dissolution; liquidation;
insolvency; assignment for the benefit of creditors; calling a
meeting of creditors; appointment of a committee of creditors or
liquidating agent; offer of a composition or extension to
creditors; making, or sending notice of, a bulk sale except in
the ordinary course of business; suspension of payment as a
result of bankruptcy; commencement of any proceeding, suit or
action (at law or in equity, or under any of the provisions of
the Bankruptcy Code, as amended) for reorganization, composition,
extension, arrangement, wage earner plan, receivership,
liquidation or dissolution, by or against any of them;
appointment of or application for a receiver, conservator,
rehabilitator or similar officer or committee for any of them or
any property of any of them; commencement of any proceedings
supplementary to execution relating to any judgment rendered in
bankruptcy against any of them, then all obligations of the
Mortgagor, pursuant to the Note and this Mortgage, although
otherwise unmatured or contingent, shall, forthwith became
absolute and due and payable without any notice or demand
whatsoever, at the Default Rate as defined in Paragraph 31,
below.
28. Mortgagor agrees that, in the event that Mortgagor or
any of the persons or parties constituting Mortgagor shall (i)
file with any bankruptcy court of competent jurisdiction or be
the subject of any petition under Title 11 of the United States
Bankruptcy Code, as amended ("Bankruptcy Code"), (ii) be the
subject of any order for relief issued under the Bankruptcy Code,
(iii) file or be the subject of any petition seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future relief for debtors, (iv) have sought or consented to or
acquiesced in the appointment of any trustee, receiver,
conservator or liquidator, or (v) be the subject of any order,
judgment or decree entered by any court of competent jurisdiction
approving a petition filed against such party for any dissolution
or similar relief under any present or future federal or state
act or law relating to bankruptcy, insolvency or relief for
debtors, Mortgagee shall thereupon be entitled and Mortgagor
irrevocably consents to immediate and unconditional relief from
any automatic stay imposed by Section 362 of the Bankruptcy Code,
or otherwise, on or against the exercise of the rights and
remedies otherwise available to Mortgagee as provided for herein,
in the Note, or in any of the other loan documents delivered in
connection herewith, and as otherwise provided by law, and
Mortgagor hereby irrevocably waives any right to object to such
relief and will not contest any motion by Mortgagee seeking
relief from the automatic stay.
29. Mortgagor represents that there are no material changes
in its financial position since the date of the financial records
submitted to the Mortgagee at the time it applied for the
mortgage loan proceeds and that it is not affected by any
insolvency proceedings. A breach of the representations of this
paragraph shall be deemed material and a default under this
Mortgage.
30. If any part of this Mortgage shall be contrary to the
laws of the State where the Mortgaged Premises is located or any
other State having jurisdiction, then such invalidity shall not
invalidate the other parts of this Mortgage. If any provision of
this Mortgage is determined to be in violation of any applicable
law, or otherwise determined to be invalid and unenforceable, it
shall automatically be severed from the remaining terms of this
Mortgage which shall be read without such invalid or violative
provision, and the remaining terms shall continue in full force
and effect.
31. If Mortgagee declares acceleration in accordance with
the terms of this Mortgage or any of the Lien Instruments or
institutes legal proceedings to enforce this Mortgage and
Mortgagee's rights pursuant thereto, or to foreclose the lien of
this Mortgage, Mortgagor agrees that interest shall accrue from
the date of said default or defaults (notwithstanding that the
date of acceleration or notice may be later than the date of
default) at the rate per annum of sixteen percent (16.00%), but
in no event in excess of the applicable usury rate with respect
to Mortgagor ("Default Rate"), until said default is corrected or
the Indebtedness is paid in full (including after entry of final
judgment and so long as any portion of the judgment remains
unpaid). Interest at the Default Rate shall also apply to any
advances made by Mortgagee to preserve and protect the security
of this Mortgage and any fees and/or expenses from the date paid
by Mortgagee as described in Paragraph 11 and Paragraph 25 and
elsewhere in this Mortgage. If, upon acceleration, the Default
Rate as calculated pursuant to this paragraph is in excess of the
applicable usury rates, then, in that event, the rate of interest
shall be automatically reduced to the maximum permissible rate
applicable to Mortgagor, and any sums which might have been paid
at a rate in excess of the maximum permissible rate shall be
automatically deemed to have been paid in error and applied in
reduction of the outstanding Principal.
32. Mortgagor covenants and represents that all leases
affecting the Mortgaged Premises are subordinate in all terms to
the lien of this Mortgage and to the lien of the Lien Instruments
and that breach of this paragraph shall constitute a material
breach under this Mortgage.
33. Mortgagor shall comply with all laws, ordinances,
regulations, and requirements of any governmental or municipal
authority having jurisdiction over the Mortgaged Premises, and
agrees that it shall forward to Mortgagee any notices that
Mortgagor may receive from any governmental department or agency
claiming jurisdiction over the Mortgaged Premises.
34. A. Mortgagor shall, and shall cause others to, carry
on the business and operations of the Mortgaged Premises so as to
comply and remain in compliance with, all applicable
Environmental Laws, which, for purposes of this document, means
any federal, state or local law (whether imposed by statute, or
administrative or judicial order, or common law), now or
hereafter enacted, governing health, safety, industrial hygiene,
the environment or natural resources, or Hazardous Materials (as
defined herein), including, such laws governing or regulating
storage tanks or the use, generation, storage, removal, recovery,
treatment, handling, transport, disposal, control, discharge of,
or exposure to, Hazardous Materials. For purposes of this
document, Hazardous Materials means (a) petroleum or chemical
products, whether in liquid, solid, or gaseous form, or any
fraction or by-product thereof, (b) asbestos or
asbestos-containing materials, (c) polychlorinated biphenyls
(pcbs), (d) radon gas, (e) underground storage tanks, (f) any
explosive or radioactive substances, (g) lead or lead-based
paint, or (h) any other substance, material, waste or mixture
which is or shall be listed, defined, or otherwise determined by
any governmental authority to be hazardous, toxic, dangerous or
otherwise regulated, controlled or giving rise to liability under
any Environmental Laws. Mortgagor has, and will continue to
have, all necessary federal, state, and local licenses,
certificates and permits relating to the Mortgaged Premises and
its facilities, business, operations, and leaseholds, and it is
in compliance with all Environmental Laws. No operations which
involve the generation, manufacture, refining, transportation,
treatment, storage, or handling of Hazardous Materials, above or
below ground, have been or will be carried on at the Mortgaged
Premises and no discharge of any such substance has occurred on
the Mortgaged Premises.
B. At any time while any amount is outstanding under
the Note and this Mortgage, upon reasonable suspicion of an
environmental condition, violation or problem, Mortgagee may
require that Mortgagor, at Mortgagor's expense and within thirty
(30) days after notice from Mortgagee, promptly cause such tests,
inspections and/or procedures to be conducted by a professional
engineering firm or others for the purpose of ensuring compliance
with all Environmental Laws, and having the Mortgaged Premises
certified to Mortgagee as such. Without limitation of
Mortgagee's rights, (i) Mortgagee shall retain the right to enter
onto the Mortgaged Premises and cause such tests, inspections,
and/or procedures to be conducted and having the Mortgaged
Premises certified to Mortgagee, as such; and (ii) Mortgagee
shall have the right, but not the obligation, to enter onto the
Mortgaged Premises or to take such other actions as is necessary
or advisable to test, cleanup, remove, resolve, or minimize the
impact of, any environmental condition which, in the opinion of
Mortgagee, could jeopardize or affect its collateral security.
All costs and expenses incurred by Mortgagee in the exercise of
any such rights will be payable by Mortgagor upon demand and will
be secured by this Mortgage and other collateral held by
Mortgagee, and repayment of all such costs and expenses incurred
by Mortgagee shall survive repayment of the Note and satisfaction
of this Mortgage.
35. Upon any sale, transfer or conveyance of all or any
part of the Mortgaged Premises, or any interest therein, the
Mortgagee may accelerate the payment of the entire Mortgage
Indebtedness, and demand immediate payment thereof in full.
Further, it is agreed as follows: (i) that the control,
management and operation of the Mortgagor by Spring Village
Holdings, Inc., a New Jersey corporation (the "Corporate General
Partner") is a material inducement to the Mortgagee to make the
loan evidenced by the Note and secured by this Mortgage; (ii)
that the control of the Corporate General Partner by Xxxxxxx
Holdings, Inc., a Delaware corporation ("Xxxxxxx") is a material
inducement to the Mortgagee to make the loan evidenced by the
Note and secured by this Mortgage; (iii) that the control of
Xxxxxxx by Xxxxx X. Xxxxxxx (as used in this paragraph only, the
"Controlling Principal") is a material inducement to the
Mortgagee to make the loan evidenced by the Note and secured by
this Mortgage; and (iv) that the control, management and
operation of the Premises by others, who or which do not, in the
Mortgagee's sole and absolute opinion, possess the business and
managerial acumen or experience of the Corporate General Partner,
Xxxxxxx, and the Controlling Principal, will seriously endanger
the status of the Premises and the security represented by the
Mortgage. Accordingly, the entire Indebtedness shall become
immediately due and payable, at the option of the Mortgagee, at
any time: (i) the control, management, or operation of the
Mortgaged Premises, or any part thereof, is transferred to any
individual or entity other than the Corporate General Partner; or
(ii) the control of the Corporate General Partner is transferred
to any individual or entity other than Xxxxxxx; or (iii) the
control of Xxxxxxx is transferred to any individual or entity
other than the Controlling Principal.
Notwithstanding the foregoing, transfers of interests in
Mortgagor, Corporate General Partner, or Xxxxxxx to immediate
family members, existing partners or shareholders, trusts for the
benefit of themselves and/or members of their families, existing
partners or shareholders, or entities comprised of same, and by
operation of law, shall be permitted without the prior consent of
the Mortgagee, provided the loan is not in default, declared or
undeclared.
Transfer of the Mortgaged Premises to a corporation formed
for the purpose of cooperative ownership shall be absolutely
prohibited.
36. The Note, this Mortgage and all agreements executed in
connection herewith shall be construed in accordance with and
governed by the laws of the State where the Mortgaged Premises is
located, notwithstanding any rules regarding the conflicts of
laws.
37. All notices hereunder shall be in writing and shall be
sufficiently given for all purposes when sent by regular first
class mail, to any party hereto at its address on the cover page
or at such other address of which it shall have notified the
party giving such notice in writing in accordance with the
foregoing requirements. Any such notice shall be deemed
effective upon the date it is mailed.
38. The Mortgagor consents to the personal jurisdiction of
the courts of the State in which the Mortgaged Premises is
located, and consents that it may be served with process within
or without said State as though it were a domiciliary, and
according to the laws of said State, in any action or proceeding
involving the Mortgagee and the Mortgagor. IN ANY ACTION OR
PROCEEDING INVOLVING THE MORTGAGEE AND THE MORTGAGOR, THE
MORTGAGOR HEREBY WAIVES: (I) ANY AND ALL RIGHT TO TRIAL BY JURY;
AND (II) ANY AND ALL RIGHT TO ASSERT AFFIRMATIVE DEFENSES
RELATING TO ANY STATUTES OF LIMITATIONS OR CLAIMS OF LACHES.
39. Notwithstanding the provisions of Paragraph 15 hereof
to the contrary, Mortgagee shall not escrow for the annual hazard
and other insurance premiums on policies of hazard and other
insurance provided Mortgagor pays such premiums on a timely basis
and in a satisfactory manner. Mortgagor covenants that it shall
pay such premiums on a timely basis and provide Mortgagee with a
certificate or declaration of renewal policies, together with a
paid receipt for the annual premiums therefor, at least thirty
(30) days prior to the expiration of any such policies. In the
event such premiums are not paid on a timely basis and in a
satisfactory manner, in addition to any other remedy Mortgagee
may have herein, Mortgagee shall have the right to commence
escrowing monthly for such premiums together with any deficiency
which may exist for not having previously escrowed therefor.
40. The Mortgagee agrees that the promise of the Mortgagor
contained in the Note to pay the Indebtedness, shall be included
therein for the sole purpose of establishing the existence of the
Indebtedness, that the Mortgagee's source of satisfaction of the
Indebtedness shall be limited to the Mortgaged Premises, the
rents issues and profits derived therefrom whether collected or
uncollected, the Improvements and the rights in condemnation
awards, or eminent domain awards, and insurance policies or
proceeds therein described; that the Mortgagee will not seek to
enforce out of any other assets of the Mortgagor or any party
constituting the Mortgagor any judgment for any sum of money
which is or may be payable under the Note or the Mortgage or for
the performance of any of the obligations of the Mortgagor under
the Note or the Mortgage, or for any deficiency remaining after
foreclosure of the Mortgage; provided, however, that nothing
herein contained shall be deemed to be a release from payment of
the Indebtedness, or of the security therefor intended by the
Mortgage or any of the Lien Instruments, or shall preclude the
Mortgagee from foreclosing the Mortgage in case of any default
under the Mortgage or the Note, or from enforcing any of its
rights under the Mortgage, including but not limited to,
obtaining the appointment of a receiver or putting into effect
the assignment of leases and rents, issues and profits contained
in the Mortgage or any collateral assignment of leases and/or
rents. Notwithstanding the foregoing, the terms of this
paragraph shall automatically terminate, and be deemed null and
void and of no further force or effect if: (i) the Mortgagor or
owner of the Mortgaged Premises intentionally impairs the value
of the Mortgaged Premises or jeopardizes the adequacy of the
security created by this Mortgage; or (ii) the Mortgagor or owner
of the Mortgaged Premises encumbers the Mortgaged Premises with a
subordinate mortgage prohibited by the terms of the Note or this
Mortgage; or (iii) noxious, toxic, hazardous or environmentally
unsound materials, substances or waste, are now or hereafter
buried, stored, used, placed, incorporated or generated in or on
the Mortgaged Premises; or (iv) fraud is committed by the
Mortgagor, or any of its principals (if Mortgagor is not a
natural person), against the Mortgagee in the application for the
loan evidenced by the Note, or in the execution or performance of
the Note, this Mortgage or any of the other Lien Instruments; or
(v) the Mortgagor misappropriates any rent or uses any rent other
than in connection with the Mortgaged Premises; or (vi) the
Mortgagor misappropriates the proceeds of insurance or
condemnation other than as required by this Mortgage; or (vii)
the Mortgagor misappropriates security deposits held by the
Mortgagor pursuant to Leases; or (viii) the Mortgagee incurs any
cost for the removal of any asbestos, which under existing law is
or under future law may be required to be removed from the
Mortgaged Premises. With respect to the foregoing items (i)
through (viii), recourse shall be limited to the actual damages
suffered by the Mortgagee.
41. No claim may be made by Mortgagor, any guarantor, any
specified person or any other person, against Mortgagee or the
affiliates, directors, officers, employees, attorneys or agents
of Mortgagee, for any special, indirect or consequential damages
or, to the fullest extent permitted by law, for any punitive
damages in respect of any claim or cause of action (whether based
on contract, tort, statutory liability, or any other ground)
based on, arising out of or related to the Note, this Mortgage or
any of the Lien Instruments or the transactions contemplated
hereby or thereby, or any act, omission or event occurring in
connection herewith or therewith, and Mortgagor (for itself and
on behalf of each guarantor and each specified person) hereby
waives, releases and agrees never to xxx upon any claim for any
such damages, whether such claim now exists or hereafter arises,
and whether or not it is now known or suspected to exist in its
favor.
[ 42. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF
AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE
MORTGAGOR. IN GRANTING THIS WARRANT OF AUTHORITY TO CONFESS
JUDGMENT AGAINST THE MORTGAGOR, THE MORTGAGOR HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND ON THE ADVICE OF SEPARATE
COUNSEL OF MORTGAGOR, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS
THE MORTGAGOR HAS OR MAY HAVE TO PRIOR NOTICE, EXCEPT AS
OTHERWISE PROVIDED HEREIN, AND AN OPPORTUNITY FOR HEARING UNDER
THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND
THE COMMONWEALTH OF PENNSYLVANIA.
MORTGAGOR, FOR THE PURPOSE OF SECURING POSSESSION OF THE
MORTGAGED PREMISES TO MORTGAGEE IN THE EVENT OF ANY EVENT OF
DEFAULT UNDER THIS MORTGAGE, IRREVOCABLY AUTHORIZES AND EMPOWERS
ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE
COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, AS ATTORNEY FOR
MORTGAGOR AS WELL AS FOR ALL PERSONS CLAIMING UNDER, BY OR
THROUGH MORTGAGOR, TO COMMENCE AN ACTION IN EJECTMENT FOR
POSSESSION OF THE MORTGAGED PREMISES WITHOUT ANY STAY OF
EXECUTION OR APPEAL, AGAINST MORTGAGOR, AND THEREIN TO CONFESS
JUDGMENT FOR THE RECOVERY BY MORTGAGEE OF THE POSSESSION OF THE
MORTGAGED PREMISES FOR WHICH THIS MORTGAGE (OR A COPY THEREOF
VERIFIED BY AFFIDAVIT) SHALL BE SUFFICIENT WARRANT, AND THEREUPON
A WRIT OF POSSESSION MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR
WRIT, FORECLOSURE OR PROCEEDING WHATSOEVER. MORTGAGOR HEREBY
RELEASES MORTGAGEE FROM ALL ERRORS AND DEFECTS IN CONNECTION WITH
SUCH JUDGMENT IN CAUSING A WRIT OR WRITS TO BE ISSUED, AND IN ANY
PROCEEDINGS THEREON CONCERNING THE SAME. MORTGAGOR AGREES THAT
NO WRIT, ERROR, APPEAL OR OBJECTION SHALL BE MADE OR TAKEN
THERETO, PROVIDED THAT MORTGAGEE SHALL HAVE FILED IN SUCH ACTION
AN AFFIDAVIT OF DEFAULT MADE BY IT OR SOMEONE ON ITS BEHALF. THE
COMMENCEMENT AND OR TERMINATION BY MORTGAGEE HEREUNDER OF ANY
PRIOR PROCEEDING SHALL NOT AFFECT MORTGAGEE'S RIGHT TO PURSUE THE
RIGHTS GRANTED TO IT HEREUNDER. IN ANY SUCH ACTION, A COPY OF
THIS MORTGAGE VERIFIED BY AFFIDAVIT ON BEHALF OF MORTGAGEE MAY BE
FILED AND IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A
WARRANT OF ATTORNEY.
This Mortgage consisting of twenty-one (21) pages, together
with Schedule A consisting of one (1) page, and a cover and
acknowledgment page(s), contains the entire agreement between the
parties and the same cannot be modified or changed except by an
instrument in writing executed on behalf of the Mortgagee and
signed by one of its officers and bearing its official seal.
Mortgagor hereby acknowledges that it has received, at the
time of execution of this Mortgage, a true and correct copy
thereof.
IN WITNESS WHEREOF, this Mortgage has been duly executed by
the undersigned.
S.V.G. PROPERTIES, L.P., a New Jersey
limited partnership
BY: SPRING VILLAGE HOLDINGS, INC., a
New Jersey corporation, General
Partner
BY:________________________________
Xxxxx X. Xxxxxxx, President
COMMONWEALTH OF PENNSYLVANIA :
COUNTY OF PHILADELPHIA :
BE IT REMEMBERED, that on this 7th day of November, 2003,
before me, the subscriber, personally appeared XXXXX X. XXXXXXX,
who, I am satisfied, is the President of SPRING VILLAGE HOLDINGS,
INC., a New Jersey corporation (the "Corporation"), which is the
General Partner of S.V.G. PROPERTIES, L.P., a New Jersey limited
partnership (the "Limited Partnership"), and thereupon he
acknowledged that he signed and delivered the within instrument
in his capacity as the President of the Corporation in its
capacity as the General Partner of the Limited Partnership, being
duly authorized to do so.
___________________________________
NOTARY PUBLIC
CERTIFICATE OF RESIDENCE
I certify that the address of the Mortgagee named in this
Mortgage is 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000.
NEW YORK COMMUNITY BANK
By:________________________________
Xxxxxx X. Xxxxxx, Esquire
Agent for Mortgagee
