MORTGAGE AND SECURITY AGREEMENT
Exhibit 10.78
TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
KNOW YE, that XXXX XX GLOUCESTER NJ, LLC, a Delaware limited liability company, having a
mailing address at 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (hereinafter called
the “Borrower”), for the consideration of One Dollar ($1.00) and other valuable consideration
received to the Borrower’s full satisfaction of PEOPLE’S UNITED BANK, a federally chartered banking
corporation having a mailing address at 000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000
(hereinafter called the “Lender”), DOES HEREBY MORTGAGE TO THE LENDER, ITS SUCCESSORS AND ASSIGNS
forever:
THE PROPERTY
(A) LAND: a certain piece or parcel of real property located at 000 Xxxxxx Xxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx, more particularly described in Schedule A attached hereto and made a part
hereof, and all rights, privileges and easements appurtenant thereto (the “Land”).
(B) IMPROVEMENTS: All the buildings, structures and improvements now or hereafter placed on
the Land (the “Improvements”).
(C) FIXTURES AND EQUIPMENT: All fixtures, furnishings, appliances, machinery and equipment
now or hereafter installed, attached to, used, or furnished in connection with the use, letting or
operation of the Land and the Improvements or in connection with the activities conducted thereon,
and all renewals or replacements thereof or additions thereto or articles of substitution thereof
(collectively, the “FF&E”), specifically excluding any FF&E owned or leased by tenants of space in
the Improvements.
(D) CONDEMNATION PROCEEDS: All awards or payments, including interest thereon, which may be
made with respect to the Land and the Improvements as a result of the exercise of the right of
eminent domain in accordance with, and subject to, the terms and conditions of Section 1.4.
(E) LEASES: All right, title and interest of the Borrower in and to any and all leases,
tenancies or rights of use and occupancy, as the same may be amended, modified, extended, renewed
or replaced, and all guarantees of any tenant’s obligations thereunder, now or hereafter on or
affecting the Land and/or the Improvements, whether or not recorded, with all security therefor
and all monies payable thereunder (hereinafter, individually, a “Lease” and, collectively, the
“Leases”) in accordance with, and subject to, the terms and conditions of Section 1.8.
(F) PROPERTY INCOME: All rents, income, profits, security deposits and other benefits to
which the Borrower may now or hereafter be entitled from the Land and the
Improvements and/or the
business operations conducted thereat or therefrom (hereinafter the “Property Income”) in
accordance with, and subject to, the terms and conditions of Section 1.9.
(G) INTANGIBLES: All present and future funds, accounts, instruments, accounts receivable,
documents, causes of action, claims, general intangibles (including, without
limitation, trademarks, trade names, service marks and symbols now or hereafter used in
connection with any part of the Land or the Improvements, all names by which the Land or the
Improvements may be operated or known, all rights to carry on business under such names, and all
rights, interest and privileges which Borrower has or may have as developer or declarant under any
covenants, restrictions or declarations now or hereafter relating to the Land or the Improvements)
and all notes or chattel paper now or hereafter arising from or by virtue of any transactions
related to the Land or the Improvements (all of the foregoing, together with the FF&E, being
referred to collectively as the “Service Equipment”).
(H) PERMITS AND APPROVALS: All permits, licenses, consents and approvals relating to the
development, use and occupancy of the Land and the Improvements.
TO HAVE AND TO HOLD the above granted and bargained premises, with the privileges and
appurtenances thereof (collectively referred to herein as the “Property”) but subject to those
encumbrances, listed in the Lender’s mortgagee policy of title insurance (the “Permitted
Encumbrances”), unto it, the said Lender, its successors and assigns forever, to its and their own
proper use and behoof.
THE CONDITION OF THIS MORTGAGE IS SUCH THAT:
WHEREAS, the Lender and the Borrower have entered into a Promissory Note (the “Note”) of even
date herewith, pursuant to which all or part of the Loan proceeds are permitted to be advanced from
time to time and shall be secured by this Mortgage. The Note provides for repayment of all or a
portion of the outstanding balance of the Loan proceeds, together with interest thereon, from time
to time as provided therein, a copy of which Note is on file with the Lender. Unless sooner paid
or sooner due and payable, however, the entire then outstanding principal balance of the Loan,
together with accrued interest, shall be due and payable on January 1, 2017.
WHEREAS, the Lender and the Borrower have entered or will enter into an interest rate swap
transaction evidenced by an ISDA 2002 Master Agreement of even date herewith, together with the
Schedule and all Confirmations relating thereto (the “Swap Agreement”), pursuant to which the
variable rate interest risk under the Note has been or will be hedged and pursuant to which the
Borrower has or will have certain payment and performance obligations to the Lender in the event
the Swap Agreement is terminated (the “Swap Obligations”).
NOW, THEREFORE, Borrower hereby agrees to comply with and be subject to, the following terms,
representations, covenants and conditions:
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ARTICLE 1.
COVENANTS AND REPRESENTATIONS OF THE BORROWER
COVENANTS AND REPRESENTATIONS OF THE BORROWER
The Borrower covenants, represents and warrants to the Lender as follows:
1.1 FUTURE ADVANCES; PROTECTION OF PROPERTY
This Mortgage shall secure the principal sum of $17,500,000.00, together with: (a) interest,
late charges, fees and other amounts due under the Note or this Mortgage; (b) any and all
additional advances made by Lender to protect or preserve the Property or the lien or security
interest created hereby on the Property, or for taxes, assessments or insurance premiums as
hereinafter provided or for performance of any of Borrower’s obligations hereunder or under the
other Loan Documents or for any other purpose provided herein or in
the other Loan Documents (whether or not the original Borrower remains the owner of the
Property at the time of such advances); (c) all legal fees, costs and other expenses incurred by
the Lender by reason of any default or otherwise in connection with the Mortgage Debt (defined
below); and (d) the Swap Obligations. The Borrower agrees that if, at any time during the term of
this Mortgage or following a foreclosure hereof (whether before or after the entry of a judgment of
foreclosure), the Borrower fails to perform or observe any covenant or obligation under this
Mortgage including, without limitation, payment of any of the foregoing, the Lender may (but shall
not be obligated to) take such steps as are reasonably necessary to remedy any such nonperformance
or nonobservance and provide payment thereof. All amounts so advanced by the Lender shall be added
to the amount secured by this Mortgage and the other Loan Documents (and, if advanced after the
entry of a judgment of foreclosure, by such judgment of foreclosure), and shall be due and payable
on demand, together with interest at the Default Rate set forth in the Note, such interest to be
calculated from the date of such advance to the date of repayment thereof.
1.2 PAYMENT AND PERFORMANCE
The Borrower will pay the Loan and all other sums due hereunder and all other indebtedness
secured hereby, in lawful money of the United States and pay and perform all of its obligations
under the Note, this Mortgage, the Swap Agreement and every other instrument now or hereafter
securing, evidencing or relating to the Loan (collectively referred to herein as the “Loan
Documents”) at the times and in the manner set forth in such Loan Documents. All amounts due the
Lender under any of the aforesaid instruments, including, without limitation, the Swap Obligations,
shall be secured by the lien of this Mortgage and shall hereinafter be referred to as the “Mortgage
Debt”. All advances made under the Note, this Mortgage and any other Loan Documents shall be
referred to collectively, herein as “Loan Advances”.
1.3 INSURANCE
A. The Borrower shall keep the Property insured against loss by fire, flood and other hazards,
casualties, liability, contingencies and all other “extended coverage” risks, including builder’s
risk, loss of income and demolition coverage in such amounts, with such companies, and with such
deductibles as the Lender may reasonably require. All insurance carried on the Property must show
the Lender as an additional insured and be payable to the
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Lender under the standard
non-contributing mortgagee endorsement and such other endorsements as the Lender may reasonably
require. The Borrower shall claim no cancellation or return of any policy or premium except from
and after the redemption of this Mortgage by the Borrower or the satisfaction in full of the
Mortgage Debt. The obligation to provide any policy or coverage under this subsection may be
satisfied by the policy or coverage carried by any tenant under an approved Lease, provided such
policy or coverage is primary and noncontributing; and further provided that, in the case of such
tenant’s property policy, the Borrower is named as an additional named insured or is an additional
insured, and the Lender is named as first mortgagee, or, in the case of such tenant’s liability
insurance policy, the Borrower and the Lender are named as additional insureds. In other words,
for so long as both parties to any approved Lease maintain insurance coverage or self-insure in
accordance with the terms of such Lease agreement, the Borrower shall be deemed to be in compliance
with the terms of this subsection.
B. In the event of any loss or damage to the Property, the Borrower shall give prompt notice
thereof to the Lender. The Borrower authorizes the Lender, at its option, to collect, adjust and
compromise any losses under any hazard insurance policy required to be maintained by Borrower
hereunder. In case of loss and payment by any insurance company of
proceeds of a policy required to be maintained by Borrower hereunder, the amount of insurance
proceeds received shall be applied either in whole or in part upon the payment of the Mortgage Debt
or to rebuilding or restoring the Property, as the Lender may elect in its sole discretion.
Notwithstanding the foregoing, the Lender agrees to make such proceeds available to repair or
restore the Property so long as (1) no Event of Default (as defined herein) has occurred and is
then continuing, (2) the proceeds are sufficient to cover the cost to repair or restore the
Property substantially to its condition immediately preceding the loss or damage, and (3) the
Borrower is either required or has the option, under any lease of the Property, to use such
insurance proceeds to effect such repair or restoration.
Notwithstanding the foregoing provisions of this Section 1.3.B or anything to the contrary
contained herein, for so long as the lease agreement (the “Tractor Supply Lease”) with Tractor
Supply Company (“Tractor Supply”) is in effect the disposition of casualty and condemnation
proceeds shall be governed by such lease.
1.4 TAXES
A. The Borrower shall pay or cause to be paid within any applicable grace period and before
the same become delinquent, all taxes, water rates, sewer rents, utility charges, assessments, and
governmental or other charges and impositions of any kind whatsoever, including any assessment for
local improvements, whether payable in installments or otherwise, for which lien rights exist,
which may now or hereafter be assessed or levied upon any part of the Property, or in lieu of or in
addition to a tax on the Property (all such charges and payments collectively referred to herein as
the “Taxes”). The Borrower shall promptly notify the Lender of the delinquency in the payment of
any Taxes.
Notwithstanding the foregoing provisions of this Section 1.4.A or anything to the contrary
contained herein, for so long as the Tractor Supply Lease is in effect the right to contest
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the
validity, applicability or amount of any asserted tax or assessment shall be governed by such
lease.
B. Upon the request of the Lender, the Borrower shall deposit with the Lender in advance, and
without interest, such amounts, in such installments, to be held on such terms and conditions, as
the Lender may in its sole discretion require in order to pay the Taxes. All such payments shall
be held in a non-interest bearing account at the Lender and may be commingled with other assets of
the Lender. Upon the occurrence of an Event of Default and during the continuance thereof, the
Lender may, at its option, apply the accumulated escrow balance remaining as a credit against the
Mortgage Debt. The foregoing escrow requirement shall be waived by the Lender so long as (i) no
Event of Default (as defined herein) has occurred and is then continuing, and (ii) Borrower,
Tractor Supply or any other tenant of the Property is paying such Taxes directly to the taxing
authority in a timely manner.
1.5 CONDEMNATION
A. The Borrower will give the Lender prompt notice of any eminent domain proceedings affecting
any part of the Property. The Borrower hereby appoints the Lender as its attorney-in-fact,
coupled with an interest, and authorizes the Lender to collect, receive, and retain, subject to the
terms hereof, the proceeds of any such award or payment, to give proper receipts therefor and, if
an Event of Default has occurred, to adjust, compromise and settle the claim therefor. The Lender
shall have the right to intervene and participate in any eminent domain proceedings and the
Borrower shall consult with the Lender in all matters pertaining to
the adjustment, compromise or settlement of such proceedings and shall not enter into any
agreement with respect to such matters without the prior written consent of the Lender. The Lender
may, in its sole discretion, retain and apply any eminent domain award or payment toward payment of
the Mortgage Debt, or pay same over wholly or in part to the Borrower.
Notwithstanding the foregoing provisions of this Section 1.5.A, for so long as the Tractor
Supply Lease is in effect the disposition of casualty and condemnation proceeds shall be governed
by such lease.
1.6 COMPLIANCE WITH LAWS, ETC.
A. The Borrower warrants that it presently does and covenants that it will continue to observe
and comply with (1) all laws, regulations, ordinances, rules and orders affecting the Property or
the business operations thereon; and (2) the terms of each insurance policy applicable to the
Property that Borrower is required by this Mortgage to maintain. If the Borrower receives notice
that it is not in compliance with any such law or condition, the Borrower will promptly provide the
Lender with a copy of such notice.
Notwithstanding the foregoing, the Borrower may, upon providing Lender with security
satisfactory to Lender, proceed diligently and in good faith to contest the validity or
applicability of any such laws, regulations, ordinances, rules and orders affecting the Property or
the business operations thereon, so long as during such contest the Property shall not be subject
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to any lien, charge, fine or other liability and shall not be in danger of being forfeited, lost or
closed. The Borrower shall not use or occupy, or allow the use or occupancy of, the Property in
any manner which violates any Lease of or any other agreement applicable to the Property or any
applicable laws, regulations, ordinances, rules and orders, or which constitutes a public or
private nuisance or which makes void, voidable or cancelable, or increases the premium of, any
insurance then in force with respect thereto.
B. The Borrower shall indemnify the Lender and hold the Lender harmless from and against all
loss, liability, damage and expense, including attorneys’ fees, suffered or incurred by the Lender,
whether as holder of this Mortgage, as mortgagee in possession or as a successor in interest to the
Borrower as owner of the Property by virtue of foreclosure or acceptance of a deed in lieu of
foreclosure (1) under or on account of any applicable state or federal laws or regulations,
including the assertion of any lien thereunder; (2) any fact or event giving rise to liability
under the Borrower’s and Guarantor’s Environmental Indemnification dated as of even date herewith
with respect to the Property; and (3) with respect to any other matter affecting the Property and
governed by the provisions of applicable state or federal laws or regulations.
C. In the event of any discharge, spillage, uncontrolled loss, seepage or infiltration of oil
or petroleum or chemical liquids, solids or gaseous products or hazardous waste or hazardous or
toxic substance which would give rise to a lien under applicable law (a “Spill”) affecting the
Property, whether or not the same originates or emanates from the Property or any contiguous real
estate, the Borrower shall contain, remove or mitigate, or cause the containment, removal or
mitigation of, the same immediately and in accordance with any directives of the State of New
Jersey. If the Borrower shall fail to remedy such Spill or otherwise comply with any of the
requirements of any environmental law or regulation, the Lender may at its election, but without
the obligation to do so, give such notices and/or cause such work to be performed at the Property
and/or take any and all other actions as the Lender shall deem necessary or advisable in order to
remedy the Spill or cure such failure of compliance, and any amounts paid as a result thereof shall
be reimbursed by the Borrower
upon demand by the Lender, shall bear interest at the “Default Rate” provided for in the Note,
and shall be secured by the lien of this Mortgage.
1.7 MAINTENANCE AND REPAIR; INSPECTION; SIGN
A. The Borrower will (1) keep and maintain the Property in good condition, working order and
repair, or cause the same to be so kept and maintained; (2) not commit or suffer any waste of the
Property; (3) repair, replace, rebuild or restore any part of the Property which may be damaged or
destroyed, or cause the same to be so repaired, replaced, rebuilt or restored; and (4) make, or
cause to be made, all other repairs and replacements to the Property required by any applicable
Lease, or, with respect to any period during which there is no Lease applicable to the Property,
which the Lender may reasonably require. All such work shall be done promptly in a good and
workmanlike manner.
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B. After the occurrence of and during the continuation of an Event of Default, the Lender and
any person duly authorized by the Lender shall, subject to the rights of tenants under the Leases,
have the right to enter and inspect the Property at all reasonable times.
1.8 SALE, ENCUMBRANCE AND USE
A. The Borrower shall not, without the Lender’s prior written consent, which may be withheld
in the Lender’s sole discretion for any reason whatsoever, (1) initiate or allow any transfer or
other disposition of, legal or equitable title to all or any part of the Property other than in
compliance with the provisions of Section 4.09 below; (2) if applicable, commence an action to
dissolve or otherwise effect the dissolution of an entity Borrower or guarantor; (3) if applicable,
cause the termination of or change the ownership, the articles of organization, the operating
agreement, or the manager of the Borrower or any guarantor; (4) voluntarily create any liens or
encumbrances against the Borrower’s title to the Property; (5) initiate or, allow any change in the
nature of the use and occupancy of the Property from that permitted by the terms of any Lease,
including any such change which materially increases the likelihood of a Spill; or (6) record any
declaration of condominium or other form of common interest ownership affecting any part of the
Property or otherwise subject the Property to the provisions of N.J.S.A. 46:8(b)-1 et seq.
Notwithstanding the foregoing, however, any of the following may occur without the consent of the
Lender: (i) transfers of limited partnership interests in any Restricted Party (as hereinafter
defined), (ii) transfers of shares in Xxxx Credit Property Trust II, Inc., Xxxx Credit Property
Trust III, Inc. or any other entity whose ownership interests are bought, sold and redeemed through
U.S. broker-dealers, (iii) any involuntary transfer caused by the death of any Restricted Party or
any general partner, shareholder, joint venturer, manager, member or beneficial owner of a trust so
long as the Borrower is reconstituted, if required, following such death and so long as those
persons responsible for the management of the Property and the Borrower remain unchanged as a
result of such death or any replacement management is approved by the Lender, (iv) gifts for estate
planning purposes of any individual’s interests in any Restricted Party to the spouse or any lineal
descendant of such individual, or to a trust for the benefit of any one or more of such individual,
spouse or lineal descendant so long as the Borrower is reconstituted, if required, following such
gift and so long as those persons responsible for the management of the Property and the Borrower
remain unchanged following such gift or any replacement management is approved by the Lender, and
(v) transfers of ownership interests in any Restricted Party and ownership interests in any member,
partner or shareholder of any Restricted Party to any affiliate or subsidiary of a Restricted
Party, provided that, at all times, Xxxxxxxxxxx X. Xxxx, Xxxx Holdings Corporation, Xxxx Credit
Property Trust II, Inc.,
and/or Xxxx Credit Property Trust III, Inc., continues to “control” the Restricted Party,
where the term “control” means the power to direct the management and policies of the Restricted
Party. As used herein, the term “Restricted Party” shall mean the Borrower and/or the guarantor.
B. The Borrower will keep the Property free from the claim of all persons supplying labor or
materials in connection with the construction or repair of any Improvements constituting a part of
the Property; provided, however, that the Borrower shall have the right to contest in good faith
any such claim or demand, so long as it does so diligently, by appropriate proceedings and without
prejudice to the Lender and provided that neither the Property nor any
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interest therein would be in
any danger of sale, loss or forfeiture as a result of such proceeding or contest. In the event the
Borrower shall contest any such claim or demand, the Borrower shall promptly notify the Lender of
such contest and thereafter shall, upon the Lender’s written request therefor, promptly provide a
bond, cash deposit or other security reasonably satisfactory to the Lender to protect the Lender’s
interest and security should the contest be unsuccessful. If the Borrower shall fail to promptly
discharge or provide security against any such claim or demand as aforesaid, the Lender may do so
and any and all expenses incurred by the Lender, together with interest thereon at the Default Rate
under the Note from the date incurred by Lender until actually paid by the Borrower, shall be
immediately paid by the Borrower on demand and shall be secured by this Mortgage and by all of the
other Loan Documents securing all or any part of the Mortgage Debt.
C. The Borrower will furnish, at the Lender’s request, all waivers and releases of liens or
claims upon or with respect to the Property.
D. The term “transfer or other disposition” as used in Section 1.8.A above shall mean:
(1) any sale, conveyance, transfer, gift or other disposition, whether voluntary, involuntary,
or by operation of law;
(2) if the Borrower is a limited liability company, any transfer of a beneficial interest in
the ownership of the membership interest in the company, whether caused by a member’s death or
otherwise, or any change in the Articles of Organization or Operating Agreement of the company, or
any change in members or managers of the company that has not been approved by the Lender, or any
termination of the company;
(3) if the Borrower is a partnership, any transfer of a partner’s interest, whether caused by
the partner’s death or otherwise, or any change in the partnership agreement, or any termination of
the partnership;
(4) any dissolution or liquidation of, or the filing of a suit to dissolve or liquidate, the
Borrower;
(5) except for the existing Lease of the Land and Improvements to Tractor Supply, a lease or
leases of more than twenty percent (20%) of the Land, Improvements and/or Service Equipment,
wherein the proposed tenant or tenants do not intend to occupy the Property but intend to sell,
sublease or assign their interest in a lease or leases of the Land, Improvements and/or Service
Equipment. It is the express intention of this provision to prohibit a long-term lease or sale and
leaseback for either financing purposes or to effectuate a transfer of the Property, but nothing
herein shall prohibit or affect the rights of Tractor Supply to sublease or assign its interests
in, to and under its Lease, as set forth in such
Lease; and
(6) any management contract wherein management of the Property shall be the responsibility of
anyone other than the Xxxx Realty Advisors, Inc.
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E. The Borrower shall promptly notify the Lender if any lien, attachment or encumbrance is
recorded against the Property without the Borrower’s consent and shall cause the lien to be
cancelled or bonded over and discharged of record within thirty (30) days after its recording.
1.9 LEASES
The Borrower will not take any action, the effect of which would be to cause any Lease to
cease to be in full force and effect, and will not, except with the prior written consent of the
Lender and except as may otherwise be expressly permitted by the terms of this Mortgage, (1) cancel
or terminate any Lease, or consent to any cancellation, termination or surrender thereof, or any
assignment thereof; (2) amend, modify or subordinate any Lease; (3) enter into any new Lease; (4)
waive any event of default under any Lease; (5) consent to any prepayment or discount of rent or
advance rent under any Lease; or (6) take any other action in connection with any Lease which may
materially impair or jeopardize the validity of such Lease or the Lender’s interest therein. The
Lender shall have the right to review and reasonably refuse written consent to any of the above
proposed actions of the Borrower based upon the substance of the proposed transaction, the
creditworthiness of the Borrower or the tenant, the financial condition of the Property or
otherwise.
1.10 PROPERTY INCOME
As additional and collateral security for the payment of the Mortgage Debt and cumulative of
any and all rights and remedies herein provided for, the Borrower hereby absolutely and presently
assigns to the Lender all existing and future Property Income. The Borrower hereby grants to the
Lender the sole, exclusive and immediate right, without taking possession of the Property, to
demand, collect (by suit or otherwise), receive and give valid and sufficient receipts for any and
all of said Property Income, for which purpose the Borrower does hereby irrevocably make,
constitute and appoint the Lender its attorney-in-fact with full power to appoint substitutes or a
trustee to accomplish such purpose (which power of attorney shall be irrevocable so long as any
portion of the Mortgage Debt is outstanding, shall be deemed to be coupled with an interest, shall
survive the voluntary or involuntary dissolution of the Borrower and shall not be affected by any
disability or incapacity suffered by the Borrower subsequent to the date hereof); provided,
however, that until the occurrence of an Event of Default under this Mortgage or under any other of
the Loan Documents, the Borrower shall have a license to collect, receive, use and enjoy the
Property Income when due and prepayments thereof for not more than one (1) month prior to due date
thereof. Upon the occurrence of an Event of Default, the Borrower’s license shall automatically
terminate without notice to the Borrower and the Lender may thereafter, without taking possession
of the Property, collect the Property Income itself or by an agent or receiver. From and after the
termination of such license, the Borrower shall be the agent of the Lender in collection of the
Property Income, and all of the Property Income so collected by the Borrower shall be held in trust
by the Borrower for the sole and exclusive benefit of the Lender, and the Borrower shall, within
three (3) business days after receipt of any Property Income, pay the same to the Lender to be
applied by the Lender as hereinafter set forth. Neither the demand for or collection of Property
Income by the Lender shall constitute any assumption by the Lender of any obligations under any
agreement relating
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thereto. The Lender is obligated to account only for
such Property Income as is actually collected or received by the Lender. The Borrower
irrevocably agrees and consents that the respective payors of the Property Income shall, upon
demand and notice from the Lender of an Event of Default, pay said Property Income to the Lender
without liability to determine the actual existence of any Event of Default claimed by the Lender.
The Borrower hereby waives any right, claim or demand which the Borrower may now or hereafter have
against any such payor by reason of such payment of Property Income to the Lender, and any such
payment shall discharge such payor’s obligation to make such payment to the Borrower. All Property
Income collected or received by the Lender may be applied against all expenses of collection,
including, without limitation, reasonable and actual attorneys’ fees, against costs of operation
and management of the Property and against the Mortgage Debt, in whatever order or priority as to
any of the items so mentioned as the Lender directs in its sole discretion and without regard to
the adequacy of its security. Neither the exercise by the Lender of any rights under this Section
1.10 nor the application of any Property Income to the Mortgage Debt shall cure or be deemed a
waiver of any Event of Default. The assignment of Property Income hereinabove granted shall
continue in full force and effect during any period of foreclosure or redemption with respect to
the Property. The Borrower has executed a Collateral Assignment of Leases, Rentals and Property
Income dated of even date herewith (the “Assignment”) in favor of the Lender covering all of the
right, title and interest of the Borrower, as landlord, lessor or licensor, in and to any Leases.
All rights and remedies granted to the Lender under the Assignment shall be in addition to and
cumulative of all rights and remedies granted to Lender hereunder. Unless the Lender shall have
taken possession of the Property pursuant to this Mortgage, the Lender shall be without liability
for any loss which may arise from a failure to collect any Property Income, proceeds or other
payments.
1.11 REMOVALS, ALTERATIONS AND DEMOLITION
No part of the Improvements may be removed, demolished or materially altered, except as
otherwise provided under any Lease of the Property, without the prior written consent of the Lender
(not to be unreasonably withheld). Without the prior written consent of the Lender (not to be
unreasonably withheld), the Borrower shall not commence construction of any improvements on the
Land other than improvements required for the maintenance or repair of the Property. All such
changes, additions and alterations shall become part of the Property immediately upon installation,
except as otherwise provided in any Lease of all or any part of the Property. Except as permitted
under any Lease, no Service Equipment shall be removed from the Property without the prior written
consent of the Lender (not to be unreasonably withheld), unless it is replaced with an item of
similar or greater function and value. Any replacement equipment shall constitute Service
Equipment and be subject to the lien of this Mortgage.
1.12 PROTECTION OF LIEN AND OTHER EXPENSES
The Borrower shall pay, indemnify, defend and hold the Lender harmless from all costs,
disbursements, expenses and reasonable and actual attorneys’ fees incurred by the Lender in
connection with protecting or sustaining the lien of this Mortgage or collection of the Mortgage
Debt, either before or after obtaining judgment of foreclosure of the Mortgage or judgment on or
with respect to the Mortgage Debt.
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1.13 BOOKS, RECORDS AND ACCOUNTS; FINANCIAL STATEMENTS
A. The Borrower will keep and maintain proper and accurate books, records and accounts
reflecting all items of income and expense received or paid by or on behalf of the
Borrower in connection with the Property and all business operations conducted at or from the
Property. The Lender shall have the right, upon not less than seventy-two (72) hours advance
written notice to the Borrower, during normal business hours, to examine any such books, records
and accounts. The Borrower shall provide the Lender with (i) annual financial statements and
operating reports for the Property within one hundred twenty (120) days after each fiscal year-end
of the Borrower; and (ii) annual federal tax returns within thirty (30) days after filing. If the
Borrower is a disregarded entity for federal tax purposes, then the sole member of the Borrower (or
such other affiliated entity whose consolidated tax return includes the Borrower or such member),
will provide its federal tax return to the Lender for purposes of complying with the provisions
hereof.
B. At all times during the Loan term, the aggregate Loan to value ratio (“LTVR”) for the Loan,
as determined by the Lender taking into account the value of the Property and the value of that
certain property located at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx (the “Winchester Property”)
that has been mortgaged by Xxxx HD Winchester VA, LLC to the Lender as security for the Loan, shall
not exceed fifty-five percent (55%), and the aggregate debt service coverage ratio (“DSCR”) for the
Loan, as determined annually by the Lender, shall not fall below 1.50 to 1.00. The DSCR will be
calculated based on the actual income received by the Borrower in the aggregate from both the
Property and the Winchester Property (the “DSCR Income”) less Borrower’s Operating Expenses of such
properties. “Operating Expenses”, as used herein, shall be (i) a replacement reserve of $0.15 per
square foot, and (ii) a 2% management fee. The DSCR Income less the Operating Expenses shall be
considered to be the net operating income (“NOI”). The NOI must support the proposed debt service
on the Loan based upon the interest rate under the Loan at the time of the Loan closing and a
25-year amortization schedule at not less than 1.50x.
1.14 SECURITY AGREEMENT AND FINANCING STATEMENT
This Mortgage is a security agreement and is intended to be effective as a fixture financing
statement pursuant to the Uniform Commercial Code as adopted in the State of New Jersey with
respect to the Service Equipment. The Lender is the secured party and the Borrower is the debtor
with respect to this financing statement and the mailing addresses of the secured party and the
debtor for the purpose of this financing statement are set forth hereinabove.
1.15 REQUIRED NOTICES
In addition to any other notices required under this Mortgage, the Borrower shall promptly
notify the Lender of the (1) receipt of notice from any governmental authority relating to the
Property; (2) receipt of any notice from any person (natural or otherwise, but specifically
excluding the Lender) claiming to hold any lien or security interest in the Property; or (3)
11
commencement of any judicial or administrative proceedings by or against or otherwise affecting the
Borrower or the Property.
1.16 OTHER DOCUMENTS
The Borrower, upon its receipt of a written request from the Lender, shall promptly deliver to
the Lender all copies of all reports, licenses, permits, approvals, orders, agreements, options,
and applications in the Borrower’s possession or control relating to or affecting the Property.
1.17 GENERAL REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that as of the date of this Mortgage:
A. The Borrower is generally paying its debts as such debts become due, the fair market value
of its assets exceeds its liabilities and no bankruptcy or insolvency proceedings are pending
against or contemplated by the Borrower, and the Borrower has received no written notice that any
such bankruptcy or insolvency proceedings are contemplated against it.
B. All reports, statements and other data furnished by the Borrower to the Lender in
connection with the Loan are true, correct and complete in all material respects and do not omit
any fact or circumstance which would make the statements contained therein materially misleading;
present fairly the financial position of the Borrower as of the date stated therein, and the
results of the Borrower’s operation and changes in financial position for the years then ended and
the statements are prepared in conformity with generally accepted accounting principles applied on
a consistent basis; and that no material adverse change has occurred in the financial condition of
the Borrower or the Property since the date of said financial statement.
C. The Property and all Improvements thereon have not suffered any damage from fire or other
casualty, no part of the Property has been condemned or taken by eminent domain and no condemnation
action or other taking of the Property or any part thereof is pending, nor has written notice of
any threat of eminent domain or condemnation or other taking of the Property been received by the
Borrower.
D. To the actual knowledge of the Borrower and except as set forth in any Phase I
Environmental Site Assessment or other environmental report delivered by the Borrower to the
Lender, there does not now exist on, under or within the Property any Spill. To the actual
knowledge of the Borrower and except as set forth in any Phase I Environmental Site Assessment or
other environmental report delivered by the Borrower to the Lender, there does not now exist any
condition, nor, to the actual knowledge of the Borrower, will the current or proposed operations
cause there to exist any condition upon the Property or land contiguous thereto which would
materially increase the likelihood of the occurrence of (1) a Spill, or (2) a material violation of
any applicable state or federal laws or regulations.
E. The Borrower is a validly existing limited liability company organized under the laws of
the State of Delaware, is qualified to do business in the State of New Jersey,
12
has the legal
capacity and is authorized to execute and deliver all Loan Documents, and the Loan Documents are
valid and binding obligations enforceable in accordance with their respective terms.
F. There is no action, suit or proceeding pending against or materially affecting the Borrower
or the Property or the business operations conducted at or from the Property or which involve the
possibility of any judgment or liability not fully covered by insurance or which, in the Borrower’s
opinion, might result in any adverse change in the business, assets or operations of the Borrower
which would, in any way, materially and adversely affect the Property or the validity or
enforceability of the Loan Documents, and the Borrower has received no written notice threatening
any such action, suit or proceeding.
G. The Borrower is not a party to or bound by any contract, agreement or other instrument, or,
to the actual knowledge of the Borrower, subject to any charter or other
restriction or any judgment, order, writ, injunction, decree, rule or regulation which now or
in the future may materially and adversely affect the business, operations, properties, assets or
condition, financial or otherwise, of the Borrower.
H. The Borrower has filed all required federal, state and local tax returns, if any, and the
Borrower has received not written notice of claims asserted with respect to such taxes.
I. The Property has frontage on, and direct access for ingress and egress to, the public
street(s) appurtenant thereto.
J. Electric facilities and any other necessary utilities are and at all times hereafter shall
be, available in sufficient capacity to service the Property satisfactorily, and any easements
necessary to the furnishing of such utility service by the Borrower have been or will be obtained
and duly recorded.
K. To its actual knowledge, the Borrower is not in default under the terms of any instrument
evidencing or securing any indebtedness of the Borrower, and the Borrower has received no written
notice of any fact or condition which would, if uncured or uncorrected after the receipt of notice
or passage of time, or both, constitute a default under any such instrument.
1.18 COMMERCIAL TRANSACTION
The Borrower represents, warrants and acknowledges that the transaction of which this Mortgage
is a part is a “commercial transaction” as defined by the Statutes of the State of New Jersey.
Monies now or in the future to be advanced to or on behalf of Borrower are not and will not be used
for personal, family or household purposes.
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ARTICLE 2.
DEFAULT
DEFAULT
2.1 EVENTS OF DEFAULT
Any one or more of the following shall constitute an “Event of Default” hereunder:
A. The failure to pay the Mortgage Debt in full by the “Maturity Date” as defined in the Note,
or the failure to pay any other installment of principal and/or interest due under the Note within
fifteen (15) days from the date when such installment is otherwise due and payable, or the failure
to pay any other sums due under any other Loan Document prior to the expiration of any applicable
notice and/or cure periods or, if there is no such applicable notice or cure period, after the
Lender has given written notice to the Borrower of such failure and a period of ten (10) days shall
have passed with no cure by the Borrower.
B. The occurrence of an Event of Default (as defined therein) under any Loan Documents beyond
any grace or cure periods set forth in said Loan Documents, if any.
C. The failure to pay the premiums on or keep in force any insurance which Borrower is
required to maintain under Section 1.3.
D. With respect to any period during which there is no applicable Lease or the obligation to
pay Taxes under an applicable Lease is the landlord’s, the failure to pay any Taxes which the
Borrower is required to pay within the applicable time periods set forth under Section 1.4, or as
to any other period, the failure to cause the payment of any Taxes which a tenant is required to
pay pursuant to any applicable Lease within the applicable time periods set forth under Section
1.4.
E. The transfer, encumbrance or change in use of, or other action or non-action with respect
to, the Property or the composition of the Borrower in contravention of the provisions of Section
1.8.
F. The failure of the Borrower to promptly contain, remove or mitigate any Spill, or to cause
the containment, removal or mitigation thereof, or the Borrower’s failure to promptly, upon the
Borrower’s receipt of the Lender’s written request therefor, reimburse the State of New Jersey or
the Lender, as applicable, for any amounts expended by them with respect to any Spill.
G. The actual waste, removal or demolition of, or material alteration to, any part of the
Property in contravention of Sections 1.7 or 1.11 hereof, without the Lender’s prior written
consent.
H. The failure to observe or perform any other covenant, agreement, obligation, term or
condition set forth herein, other than those otherwise described in this Section 2.1, and, to the
extent such failure or default is susceptible of being cured, the continuance of
14
such failure or
default for thirty (30) days after Borrower’s receipt of written notice thereof from Lender;
provided, however, that if such default is susceptible of cure but such cure cannot
be accomplished with reasonable diligence within said period of time, and if Borrower commences to
cure such default promptly after receipt of notice thereof from Lender, and thereafter prosecutes
the curing of such default with reasonable diligence, such period of time shall be extended for
such period of time as may be necessary to cure such default with reasonable diligence, but not to
exceed an additional sixty (60) days.
I. The LTVR for the Loan exceeds 55% at any time during the Loan term; provided, however, that
a breach of this provision shall not be an Event of Default if the Borrower pays down the Loan to a
level that cures such breach within thirty (30) days after Borrower’s receipt of written notice of
such breach from the Lender. For purposes hereof, the “value” portion of the LTVR will be
calculated using the aggregate fair market value, as reasonably determined by the Lender, of both
the Property and the Winchester Property.
J. The DSCR falls below 1.50 to 1.0 at any time during the Loan term, provided, however, that
a breach of this provision shall not be an Event of Default if the Borrower pays down the Loan to a
level that cures such breach within thirty (30) days after Borrower’s receipt of written notice of
such breach from the Lender or by posting cash or other collateral acceptable to the Lender
sufficient to cover any debt service shortfall for the remaining Loan term. The DSCR will be
calculated as set forth in Paragraph 1.13(B) above.
ARTICLE 3.
REMEDIES
REMEDIES
Whenever an Event of Default shall have occurred, the Lender shall not be required to advance
any part of the remainder of the Loan herein described and the Lender may take any one or more of
the following remedial steps:
3.1 ACCELERATION
The Lender may declare, without demand or notice to the Borrower, any or all of the Mortgage
Debt to be due and payable immediately and, upon such declaration, the same shall immediately
become, and be, due and payable, and the Lender may exercise any and all remedies, as may be
available under applicable law.
3.2 FORECLOSURE
The Lender may foreclose this Mortgage and exercise its rights as a secured party for all or
any portion of the Mortgage Debt which is then due and payable, subject to the continuing lien of
this Mortgage for the balance not then due and payable.
3.3 POSSESSION OF PROPERTY; APPOINTMENT OF RECEIVER
A. The Lender may, at its option (a) enter upon and take possession and control of the
Property and the Property Income with those rights and powers more particularly
15
set forth in
subsection 3.3 C.; (b) make application to a court of competent jurisdiction for and obtain the
immediate ex parte appointment of a receiver authorized to immediately enter upon and take
possession and control of the Property and the Property Income with those rights and powers more
particularly set forth in subsection 3.3 C.; and (c) without taking possession and control of the
Property, immediately commence action to collect directly all Property Income in the place and
stead of the Borrower with full rights and powers to notify all parties liable to make payments of
Property Income to make said payments directly to the Lender or its agents, and the Lender or its
agents shall have the further power and authority to xxx for or otherwise collect and receive all
Property Income.
B. The Borrower hereby waives to the fullest extent permitted by law all rights to prior
notice or court hearing in connection with any action by the Lender of the types set forth in
subsection 3.3 A., and the Borrower further waives any requirement that Lender provide any bond,
surety, or other security in connection with any said action.
C. In the event the Lender or a receiver enters upon and takes possession and control of the
Property and/or the Property Income pursuant to subsection 3.3 A., said person or entity shall, in
addition to such other rights and powers as may subsequently be authorized, have the right and
power to (1) operate, manage and control the Property and exercise all the rights and powers of the
Borrower in its name or otherwise with respect to the same; (2) make all necessary and proper
maintenance, repairs, replacements, and improvements to the Property required of the landlord under
any applicable Lease or, with respect to any period during which there is no applicable Lease, as
reasonably determined by the Lender; (3) collect and receive all Property Income; and (4) enforce
all terms of existing contracts pertaining to the Property and enter into such new contracts as
required of the landlord under any applicable Lease or, with respect to any period during which
there is no applicable Lease, as reasonably determined by Lender.
D. All Property Income collected by the Lender, the Lender’s agent or a receiver pursuant to
this subsection 3.3 shall be applied in such order of priority as the Lender may determine in its
sole discretion to (1) interest and principal due on the Mortgage Debt; (2) with respect to any
period during which there is no applicable Lease, taxes, assessments and insurance premiums due
with respect to the Property and/or the business operations conducted from the Property and, as to
any other period taxes, assessments and insurance premiums due with respect to the Property which
are the obligation of the landlord under the Lease(s); (3)
with respect to any period during which there is no applicable Lease, all reasonable costs and
expenses of operating, maintaining, repairing and improving the Property and conducting the
business operations which are or may be conducted at the Property and, as to any other period, the
reasonable costs and expenses of operating, maintaining, repairing and improving the Property and
conducting the business operations which have or may be conducted at the Property which are the
obligation of the landlord under the Lease(s); and (4) the compensation, salaries, expenses and
disbursements of any agents, employees, attorneys or other representatives of the Lender, the
Lender’s agent or the receiver in connection with the possession, control and/or operation of the
Property and the business operations conducted therefrom.
16
E. The Lender, its agents, or any receiver acting pursuant to this subsection 3.3 shall in no
event be liable or accountable for more moneys than actually are received or collected during the
period during which the Lender, its agent or any receiver actually is in possession and control of
the Property. Unless Lender shall have taken possession of the Property pursuant to this Mortgage,
neither the Lender, its agents or any receiver shall be liable or accountable in any manner for the
failure to collect Property Income for any reason whatsoever.
F. All costs, expenses and liabilities of every character incurred by the Lender in managing,
operating and maintaining the Property, not paid from Property Income as hereinabove provided,
shall constitute Lender advances pursuant to Section 3.4.
G. In the event of foreclosure, the Lender, its agent or any receiver acting pursuant to this
subsection 3.3 may remain in possession of the Property until (1) the foreclosure sale; (2) the
redemption of the Property; or (3) if a deficiency exists, the expiration of any redemption period
of the United States of America extending subsequent to the foreclosure sale. The Borrower shall
and does hereby indemnify and hold the Lender harmless from and against any and all liability,
loss, claim, demand or damage which may or might be incurred by reason of this Mortgage, including,
without limitation, claims or demands for security deposits from tenants of the Property deposited
with the Borrower, and from and against any and all claims and demands whatsoever which may be
asserted against the Lender by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants or agreements contained in any of the Leases,
unless occurring after the Lender has taken possession of the Property pursuant to this Mortgage or
unless resulting from the Lender’s negligence or willful misconduct. Should the Lender incur any
liability by reason of this Mortgage or in defense of any claim or demand for loss or damage as
provided above, the amount thereof, including, without limitation, costs, expenses and reasonable
and actual attorneys’ fees, together with interest thereon at the Default Rate under the Note from
the date paid or incurred by the Lender until repaid by the Borrower, shall be immediately due and
payable to the Lender by the Borrower upon demand and shall be secured by this Mortgage and by all
of the other Loan Documents securing all or any part of the indebtedness evidenced by the Note.
3.4 LENDER ADVANCES
The Lender may, without notice or demand, pay any amount which the Borrower has failed to pay,
or perform any act which the Borrower has failed to perform hereunder. In such event such Lender
advances, together with interest thereon from the date made, at the highest interest rate allowed
under the Note, shall be (1) added to the Mortgage Debt, (2) payable on demand to the Lender and
(3) secured by the lien of this Mortgage.
3.5 NO MARSHALLING
The Lender shall not be (1) compelled to release, or be prevented from foreclosing or
enforcing this Mortgage upon all or any part of the Property, unless the entire Mortgage Debt shall
have been paid; (2) required to accept any part or parts of the Property, as
17
distinguished from the
entire whole thereof, as payment of or upon the Mortgage Debt to the extent of the value of such
part or parts; (3) compelled to accept or allow any apportionment of the Mortgage Debt to or among
any separate parts of the Property; or (4) prevented from selling the Property in one or more
parcels or as an entirety and in such manner and order as the Lender in its sole discretion may
elect.
3.6 REMEDIES CUMULATIVE; LENDER’S DISCRETION
No remedy conferred upon or reserved to the Lender hereunder is or shall be deemed to be
exclusive but shall be cumulative, and may be exercised in the sole discretion of the Lender at any
time, in any manner, and in any order, and shall be in addition to and separate and distinct from
every other remedy given the Lender under this Mortgage, the Note, or any other Loan Documents, or
now or hereafter existing in favor of the Lender at law or in equity. The Lender, in exercising
any remedy provided herein under which it may make payments or perform actions which the Borrower
has failed to do or make, may do so in its sole discretion whenever in its opinion such payment or
performance is necessary or desirable to protect the full security intended by this Mortgage. The
Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing any of
its remedies hereunder, including without limitation, reasonable attorney’s fees permitted by Rules
of Court, costs of documentary evidence, abstracts and title reports.
3.7 NO WAIVER
Time and punctuality shall be of the essence in this Mortgage, but any delay or failure by the
Lender to exercise any right or remedy available to it upon the occurrence of an Event of Default
hereunder shall not constitute a waiver of such Event of Default or relinquishment of the right in
the future to enforce strict compliance by the Borrower with all of the covenants, conditions and
agreements herein, or of the right to exercise any such rights or remedies if such Event of Default
by the Borrower be continued or repeated. No modification, amendment, change, or discharge of any
term or provision of this Mortgage shall be valid or binding unless the same is in writing and
signed by both the Lender and the Borrower. The Lender may however, without notice to or the
consent of the Borrower, any other person primarily or contingently liable for the payment of the
Mortgage Debt or the holders of any subordinate lien on the Property, (1) release any part of the
security described herein, (2) release the obligation of any person primarily or contingently
liable for the Mortgage Debt secured hereby, (3) extend the time for payment or otherwise modify
the terms of the Mortgage Debt or this Mortgage, and (4) take any additional security for the
Mortgage Debt. No such release, extension, modification or additional security shall impair or
affect the lien of this Mortgage or its priority over any subordinate lien and no such party shall
be relieved of any liability by reason thereof.
3.8 NO MERGER
In the event the Lender shall acquire title to the Property by conveyance from the Borrower or
as a result of the foreclosure of any other mortgage which the Lender at any time holds with
respect to the Property, this Mortgage shall not merge in the fee of the Property but
18
shall remain
and continue as an existing and enforceable lien for the Mortgage Debt secured hereby until the
same shall be released of record by the Lender in writing.
ARTICLE 4.
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
4.1 PERSONAL LIABILITY
Notwithstanding anything to the contrary contained in this Mortgage, the liability of the
Borrower and its officers, directors, general partners, managers, members and principals for the
Mortgage Debt and for the performance of the other agreements, covenants and obligations contained
herein and in the Loan Documents shall be limited as set forth in Section 12 of the Note.
4.2 MODIFICATION OF MORTGAGE
This Mortgage is subject to “modification” as such term is defined in P.L. 1985 c. 353
(N.J.S.A. 46:9-8.1 et seq.) and shall be subject to the priority provisions thereof.
4.3 GOVERNING LAW; BINDING EFFECT
This Mortgage shall be governed by and construed, interpreted, regulated and enforced in
accordance with the applicable laws of the State of New Jersey. All covenants, conditions and
agreements herein shall run with the land, and shall be binding upon and inure to the benefit of
the respective heirs, successors and assigns of the Lender and the Borrower.
4.4 NOTICE
All notices, demands, requests or other communications to be sent by one party to the other
hereunder or required by law shall be in writing and shall be deemed to have been validly given or
served by delivery of the same in person to the intended addressee, or by depositing the same with
Federal Express or another reputable private courier service for next business day delivery, or by
depositing the same in the United States mail, postage prepaid, registered or certified mail,
return receipt requested, in any event addressed to the intended addressee: to the Borrower at its
address set forth on the first page of this Mortgage, and to the Lender at its address set forth on
the first page of this Mortgage, or at such other address as may be designated by such party as
herein provided. All notices, demands and requests shall be effective upon such personal delivery,
or one (1) business day after being deposited with the private courier service, or two (2) business
days after being deposited in the United States mail as required above. Rejection or other refusal
to accept or the inability to deliver because of changed address of which no notice was given as
herein required shall be deemed to be receipt of the notice, demand or request sent. By giving to
the other party hereto at least fifteen (15) days’ prior written notice thereof in accordance with
the provisions hereof, the parties hereto shall have the right from time to time to change their
respective addresses and each shall have the right to specify as its address any other address
within the United States of America.
19
4.5 NO AGENCY OR JOINT VENTURE
Nothing contained in this Mortgage shall be construed to cause the Borrower to become the
agent for, or joint venturer with, the Lender for any purpose whatsoever, nor shall the Lender be
responsible for any shortage, discrepancy, damage, loss or destruction of any
part of the Property for whatever cause unless same is the direct result of the gross
negligence or willful misconduct of the Lender.
4.6 INVALID PROVISIONS
If any term or provision herein is judicially determined invalid or unenforceable then the
same shall either be severed from this Mortgage or if possible reduced in scope to the extent
necessary to be valid or enforceable.
4.7 INTERPRETATION
In this Mortgage, unless the context otherwise requires:
A. Words of the masculine gender shall mean and include correlative words of the feminine and
neuter genders and words importing the singular number shall mean and include the plural number and
vice versa.
B. Any headings or captions preceding the texts of the several sections of this Mortgage shall
be solely for convenience of reference and shall not constitute a part of this Mortgage, nor shall
they affect its meaning, construction or effect.
C. As used herein the term “actual knowledge” means the conscious awareness of facts or other
information after inquiry reasonable for an institutional owner of properties similar to the
Property.
4.8 RELEASE OF MORTGAGE
If the Borrower desires to sell the Property, the Borrower will so notify the Lender and
provide the Lender with the terms of the proposed sale. The Lender will release the lien of this
Mortgage from the Property so long as no Event of Default has occurred and is then continuing and
in connection with such sale the Loan is paid down so that after such paydown (1) the LTVR (as
determined by an appraisal ordered by the Lender and paid for by the Borrower) for the Winchester
Property is not more than it was immediately prior to such paydown (and in no event more than
fifty-five percent (55%), and (2) the DSCR is not less than 1.50 to 1.00 based on the income from
the Winchester Property and a reamortization of the principal balance of the Loan following such
prepayment as provided in the Note. The applicable prepayment penalty under the Note and any
applicable breakage or termination fee due under the Swap Agreement will be due in connection with
any such partial paydown of the Loan.
20
NOW, THEREFORE, if all agreements and provisions contained herein are fully kept and performed
by the Borrower, and all the Mortgage Debt shall be fully paid in all respects, then this deed
shall be void; otherwise to remain in full force and effect.
[The Remainder of this Page Intentionally Left Blank]
21
IN WITNESS WHEREOF, the Borrower has caused this instrument to be executed and delivered this
18th day of December, 2009.
Signed, sealed and delivered
in the presence of:
|
XXXX XX GLOUCESTER NJ, LLC | ||||||
| By: | Xxxx REIT Advisors III, LLC Its Manager |
||||||
/s/ Xxxx Xxxxx
|
By: | /s/ Xxxx X. Xxxxx | |||||
Name:
|
Name: Xxxx X. Xxxxx | ||||||
| Its Senior Vice President | |||||||
/s/ Xxxxx Xxxx
|
Duly Authorized | ||||||
STATE OF ARIZONA |
) | ||||||
| ) | |||||||
COUNTY OF MARICOPA |
) | ||||||
I CERTIFY as follows:
1. On
December 17th, 2009, Xxxx X. Xxxxx personally appeared before me;
2. I was satisfied that this person is the person who executed the attached instrument as
Senior Vice President of Xxxx XX Gloucester NJ, LLC, a Delaware limited liability company, the
Borrower named in the attached instrument; and
3. This person states that he was authorized to execute the instrument on behalf of said
limited liability company and that he executed the instrument as the act of such limited liability
company.
| /s/ Xxxxx X. Xxxxxxxxx | ||
| Notary Public | ||
| My Commission Expires: April 23, 2012 | ||
[NOTARIAL
SEAL] My commission expires: April 23, 2012 |
Signature
Page to Mortgage Deed
SCHEDULE A
Description of Land
Description of Land
XXXX XX GLOUCESTER NJ, LLC
-to-
PEOPLE’S UNITED BANK
Dated: December ___, 2009
| BLOCK: | 18612 | ||||||
| LOT: | 4.01 | ||||||
| COUNTY: | Camden | ||||||
RECORD AND RETURN TO:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxx & Hazard LLP
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxx & Hazard LLP
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
