EXHIBIT 99.4
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
made by
WOODCREST ROAD ASSOCIATES, L.P.
AND
WOODCREST ROAD URBAN RENEWAL, LLC
BORROWER
in favor of
CITIGROUP GLOBAL MARKETS REALTY CORP.
LENDER
DATED AS OF JANUARY ___, 2006
THIS MORTGAGE CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS, AND ALSO
CONSTITUTES A FIXTURE FILING UNDER THE UNIFORM COMMERCIAL CODE.
THIS DOCUMENT PREPARED BY AND
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
Sidley Austin LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
(this "MORTGAGE"), made as of January __, 2006, by Woodcrest Road Associates,
L.P., a Pennsylvania limited partnership having an office at 00000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("BEHRINGER LP") and Woodcrest Road
Urban Renewal, LLC, a New Jersey limited liability company having an office at
00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("BEHRINGER LLC"), (All
references herein to "BORROWER" shall mean and refer to each of Behringer LP and
Behringer LLC, or to any or all of such Behringer LP and/or Behringer LLC, as
appropriate to the context, with the choice of context to be made by Lender (as
hereinafter defined), in Lender's reasonable discretion), to CITIGROUP GLOBAL
MARKETS REALTY CORP., a New York corporation (together with its successors and
assigns, hereinafter referred to as "LENDER"), having an address at 000
Xxxxxxxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000.
Borrower and Lender have entered into a Loan Agreement dated as
of the date hereof (as amended, modified, restated, consolidated or supplemented
from time to time, the "LOAN AGREEMENT") pursuant to which Lender is making a
secured loan to Borrower in the maximum principal amount of up to Fifty Million
Four Hundred Thousand and No/Dollars ($50,400,000) (the "LOAN"). Capitalized
terms used herein without definition are used as defined in the Loan Agreement.
The Loan is evidenced by a Note dated the date hereof made by Borrower to Lender
in such principal amount (as the same may be amended, modified, restated,
severed, consolidated, renewed, replaced, or supplemented from time to time, the
"NOTE") with a Maturity Date of January 11, 2016.
Borrower is the owner of the leasehold, subleasehold and fee
simple title to certain parcels of real property (the "PREMISES") described in
EXHIBIT A attached hereto, and the buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and other
improvements now or hereafter located thereon (the "IMPROVEMENTS").
To secure the payment of the Note and all sums which may or
shall become due thereunder or under any of the other documents evidencing,
securing or executed in connection with the Loan (the Note, this Mortgage, the
Loan Agreement and such other documents, as any of the same may, from time to
time, be modified, amended or supplemented, being hereinafter collectively
referred to as the "LOAN DOCUMENTS" which Loan Documents are incorporated herein
by reference for all purposes), including (i) the payment of interest and other
amounts which would accrue and become due but for the filing of a petition in
bankruptcy (whether or not a claim is allowed against Borrower for such interest
or other amounts in any such bankruptcy proceeding) or the operation of the
automatic stay under Section 362(a) of Title 11 of the United States Code (the
"BANKRUPTCY CODE"), and (ii) the costs and expenses of enforcing any provision
of any Loan Document (all such sums being hereinafter collectively referred to
as the "DEBT"), Borrower has given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, warranted, pledged, assigned and hypothecated
and by these presents does hereby give, grant, bargain, sell, alien, enfeoff,
convey, confirm, warrant, pledge, assign and hypothecate unto Lender, the
Premises and the Improvements and the following:
(i) all of Behringer LP's right, title and interest as
landlord and otherwise and Behringer LLC's interest as tenant and
otherwise (the "LEASEHOLD ESTATE") under that certain Ground Lease dated
October 30, 2003 between Behringer LP, as lessor, and
Behringer LLC, as lessee, a memo of which was recorded on December 15,
2003, in the Camden County Clerk's Office (as the same may hereafter be
amended, restated, supplemented, modified, extended or renewed from time
to time, the "GROUND Lease"), demising the Premises;
(ii) all of Behringer LLC's right, title and interest as
sublandlord and otherwise and Behringer LP's interest as subtenant and
otherwise (the "SUBLEASEHOLD ESTATE") under that certain Sublease dated
October 30, 2003 between Behringer LLC as lessor, and Behringer LP, as
lessee, a memo of which was recorded on December 15, 2003, in the Camden
County Clerk's Office in Book 7287, page 1676, (as the same may
hereafter be amended, restated, supplemented, modified, extended or
renewed from time to time, the "SUBLEASE"), demising the Premises;
(iii) all of Behringer LP's interest as owner in fee simple of
the Premises; and
(iv) any and all after-acquired right, title and interest of
Behringer LP or Behringer LLC, their respective successors and assigns
in and to the Leasehold Estate, the Subleasehold Estate, the Ground
Lease, the Sublease or any other portion of the Premises or the
Improvements.
TOGETHER WITH: all right, title, interest and estate of Borrower now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements, and the property, rights,
interests and estates hereinafter described are collectively referred to herein
as the "PROPERTY"):
(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, rights to oil, gas, minerals, coal
and other substances of any kind or character, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements; and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road, highway, alley or
avenue, opened, vacated or proposed, in front of or adjoining the Premises, to
the center line thereof; and all the estates, rights, titles, interests, dower
and rights of dower, curtesy and rights of curtesy, property, possession, claim
and demand whatsoever, both at law and in equity, of Borrower of, in and to the
Premises and the Improvements; and every part and parcel thereof, with the
appurtenances thereto;
(b) all machinery, furniture, furnishings, equipment, computer
software and hardware, fixtures (including all heating, air conditioning,
plumbing, lighting, communications and elevator fixtures), inventory, materials,
supplies and other articles of personal property and accessions thereof,
renewals and replacements thereof and substitutions therefor, and other property
of every kind and nature, tangible or intangible, owned by Borrower, or in which
Borrower has or shall have an interest, now or hereafter located upon the
Premises or the Improvements, or appurtenant thereto, and usable in connection
with the present or future operation and occupancy of the Premises and the
Improvements (hereinafter collectively referred to as the "EQUIPMENT"),
including any leases of, deposits in connection with, and proceeds of any sale
or transfer of any of the foregoing, and the right, title and interest of
Borrower in and to any of the Equipment that may be subject to any "security
interest" as defined in the Uniform
Commercial Code, as in effect in the State where the Property is located (the
"UCC"), superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, that may
heretofore or hereafter be made with respect to the Premises or the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including any transfer made in lieu of or in anticipation of the
exercise of such right), or for a change of grade, or for any other injury to or
decrease in the value of the Premises or Improvements;
(d) all leases and other agreements or arrangements heretofore or
hereafter entered into providing for the use, enjoyment or occupancy of, or the
conduct of any activity upon or in, the Premises or the Improvements, including
any extensions, renewals, modifications or amendments thereof (hereinafter
collectively referred to as the "LEASES") and all rents, rent equivalents,
moneys payable as damages (including payments by reason of the rejection of a
Lease in a Bankruptcy Proceeding or in lieu of rent or rent equivalents),
royalties (including all oil and gas or other mineral royalties and bonuses),
income, fees, receivables, receipts, revenues, deposits (including security,
utility and other deposits), accounts, cash, issues, profits, charges for
services rendered, and other consideration of whatever form or nature received
by or paid to or for the account of or benefit of Borrower or its agents or
employees (other than fees paid under the Management Agreement and salaries paid
to employees) from any and all sources arising from or attributable to the
Premises and the Improvements, including all receivables, customer obligations,
installment payment obligations and other obligations now existing or hereafter
arising or created out of the sale, lease, sublease, license, concession or
other grant of the right of the use and occupancy of the Premises or the
Improvements, or rendering of services by Borrower or any of its agents or
employees, and proceeds, if any, from business interruption or other loss of
income insurance (hereinafter collectively referred to as the "RENTS"), together
with all proceeds from the sale or other disposition of the Leases and the right
to receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Property (in the case of a blanket policy of insurance, to
the extent allocable to the Property), including the right to receive and apply
the proceeds of any insurance, judgments, or settlements made in lieu thereof,
for damage to the Property;
(f) the right, in the name and on behalf of Borrower, to appear in
and defend any action or proceeding brought with respect to the Property and to
commence any action or proceeding to protect the interest of Lender in the
Property;
(g) all accounts (including reserve accounts), escrows, documents,
instruments, chattel paper, claims, deposits and general intangibles, as the
foregoing terms are defined in the UCC, and all franchises, trade names,
trademarks, symbols, service marks, books, records, plans, specifications,
designs, drawings, surveys, title insurance policies, permits, consents,
licenses, management agreements, contract rights (including any contract with
any architect or engineer or with any other provider of goods or services for or
in connection with any construction, repair or other work upon the Property),
approvals, actions, refunds of real estate taxes and assessments (and any other
governmental impositions related to the Property) and causes of action that now
or hereafter relate to, are derived from or are used in connection
with the Property, or the use, operation, maintenance, occupancy or enjoyment
thereof or the conduct of any business or activities thereon (hereinafter
collectively referred to as the "INTANGIBLES"); and
(h) all proceeds, products, offspring, rents and profits from any of
the foregoing, including those from sale, exchange, transfer, collection, loss,
damage, disposition, substitution or replacement of any of the foregoing.
Without limiting the generality of any of the foregoing, in the event that a
case under the Bankruptcy Code is commenced by or against Borrower, pursuant to
Section 552(b)(2) of the Bankruptcy Code, the security interest granted by this
Mortgage shall automatically extend to all Rents acquired by the Borrower after
the commencement of the case and shall constitute cash collateral under Section
363(a) of the Bankruptcy Code.
TO HAVE AND TO HOLD the Property unto and to the use and benefit of
Lender and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Borrower shall well and truly pay to Lender the Debt at the time and in the
manner provided in the Loan Documents and shall well and truly abide by and
comply with each and every covenant and condition set forth in the Loan
Documents in a timely manner, these presents and the estate hereby granted shall
cease, terminate and be void;
AND Borrower represents and warrants to and covenants and agrees with
Lender as follows:
PART I - GENERAL PROVISIONS
1. PAYMENT OF DEBT AND INCORPORATION OF COVENANTS CONDITIONS AND
AGREEMENTS. Borrower shall pay the Debt at the time and in the manner provided
in the Loan Documents. All the covenants, conditions and agreements contained in
the Loan Documents are hereby made a part of this Mortgage to the same extent
and with the same force as if fully set forth herein. Without limiting the
generality of the foregoing, Borrower (i) agrees to insure, repair, maintain and
restore damage to the Property, escrow and pay Taxes and Other Charges, and
comply with Legal Requirements, in accordance with the Loan Agreement, and (ii)
agrees that the Proceeds of Insurance and Awards for Condemnation shall be
settled, held and applied in accordance with the Loan Agreement.
2. LEASES AND RENTS.
(a) Borrower does hereby absolutely and unconditionally assign to
Lender all of Borrower's right, title and interest in all current and future
Leases and Rents, it being intended by Borrower that this assignment constitutes
a present, absolute assignment and not an assignment for additional security
only. Such assignment shall not be construed to bind Lender to the performance
of any of the covenants or provisions contained in any Lease or otherwise impose
any obligation upon Lender. Nevertheless, subject to the terms of this
paragraph, Lender grants to Borrower a revocable license to operate and manage
the Property and to collect the Rents subject to the requirements of the Loan
Agreement (including the deposit of Rents into the
Clearing Account). Upon an Event of Default, without the need for notice or
demand, the license granted to Borrower herein shall automatically be revoked,
and Lender shall immediately be entitled to possession of all Rents in the
Clearing Account, the Deposit Account (including all Subaccounts thereof) and
all Rents collected thereafter (including Rents past due and unpaid), whether or
not Lender enters upon or takes control of the Property. Borrower hereby grants
and assigns to Lender the right, at its option, upon revocation of the license
granted herein, to enter upon the Property in person, by agent or by
court-appointed receiver to collect the Rents. Unless prohibited by applicable
law, any Rents collected after the revocation of such license may be applied
toward payment of the Debt in such priority and proportions as Lender in its
sole discretion shall deem proper.
(b) Borrower shall not enter into, modify, amend, cancel, terminate
or renew any Lease except as provided in Section 5.10 of the Loan Agreement.
3. USE OF PROPERTY. Except as provided in the Loan Agreement, (a)
Borrower shall not initiate, join in, acquiesce in or consent to any change in
any private restrictive covenant, zoning law or other public or private
restriction, limiting or defining the uses which may be made of the Property;
(b) if under applicable zoning provisions the use of the Property is or shall
become a nonconforming use, Borrower shall not cause or permit such
nonconforming use to be discontinued or abandoned without the consent of Lender;
and (c) Borrower shall not (i) change the use of the Property, or (ii) permit or
suffer to occur any waste on or to the Property.
4. TRANSFER OR ENCUMBRANCE OF THE PROPERTY.
(a) Borrower acknowledges that (i) Lender has examined and relied on
the creditworthiness and experience of the principals of Borrower in owning and
operating properties such as the Property in agreeing to make the Loan, (ii)
Lender will continue to rely on Borrower's ownership of the Property as a means
of maintaining the value of the Property as security for the Debt, and (iii)
Lender has a valid interest in maintaining the value of the Property so as to
ensure that, should Borrower default in the repayment of the Debt, Lender can
recover the Debt by a sale of the Property. Borrower shall not sell, convey,
alienate, mortgage, encumber, pledge or otherwise transfer the Property or any
part thereof, or suffer or permit any Transfer to occur, other than a Permitted
Transfer or as otherwise expressly permitted under the Loan Documents.
(b) Lender shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Transfer in violation of
this Paragraph 4. This provision shall apply to every sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Property (and every
other Transfer) regardless of whether voluntary or not. Any Transfer made in
contravention of this Paragraph 4 shall be null and void and of no force and
effect, to the fullest extent permitted by law. Borrower agrees to bear and
shall pay or reimburse Lender on demand for all reasonable expenses (including
reasonable attorneys' fees and disbursements, title search costs and title
insurance endorsement premiums) incurred by Lender in connection with the
review, approval and documentation of any Permitted Transfer.
5. CHANGES IN LAWS REGARDING TAXATION. If any law is enacted or
adopted or amended after the date of this Mortgage which deducts the Debt from
the value of the Property for the purpose of taxation or which imposes a tax,
either directly or indirectly, on the Debt or Lender's interest in the Property,
Borrower will pay such tax, with interest and penalties thereon, if any. If
Lender is advised by its counsel that the payment of such tax or interest and
penalties by Borrower would be unlawful, taxable to Lender or unenforceable, or
would provide the basis for a defense of usury, then Lender shall have the
option, by notice of not less than 90 days, to declare the Debt immediately due
and payable.
6. NO CREDITS ON ACCOUNT OF THE DEBT. Borrower shall not claim or
demand or be entitled to any credit on account of the Debt for any part of the
Taxes or Other Charges assessed against the Property, and no deduction shall
otherwise be made or claimed from the assessed value of the Property for real
estate tax purposes by reason of this Mortgage or the Debt. If such claim,
credit or deduction shall be required by law, Lender shall have the option, by
notice of not less than 90 days, to declare the Debt immediately due and
payable.
7. FURTHER ACTS, ETC. Borrower shall, at its sole cost, do,
execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages, assignments, notices of assignment, transfers and
assurances as Lender shall, from time to time, require, for the better assuring,
conveying, assigning, transferring, and confirming unto Lender the property and
rights hereby mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned and hypothecated or intended now or
hereafter so to be, or which Borrower may be or may hereafter become bound to
convey or assign to Lender, or for carrying out the intention or facilitating
the performance of the terms of this Mortgage, or for filing, registering or
recording this Mortgage or for facilitating the sale and transfer of the Loan
and the Loan Documents in connection with a Secondary Market Transaction as
described in Section 9.1 of the Loan Agreement. Upon foreclosure, the
appointment of a receiver or any other relevant action, Borrower shall, at its
sole cost, cooperate fully and completely to effect the assignment or transfer
of any license, permit, agreement or any other right necessary or useful to the
operation of the Property. Borrower grants to Lender an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Lender at law and in equity,
including such rights and remedies available to Lender pursuant to this
paragraph. Notwithstanding anything to the contrary in the immediately preceding
sentence, Lender shall not execute any document as attorney-in-fact of Borrower
unless (x) Borrower shall have failed or refused to execute the same within five
(5) Business Days after Lender's request therefor, or (y) in Lender's good faith
determination it would be materially prejudiced by the delay involved in making
such a request. Lender shall give prompt notice to Borrower of any exercise of
the power of attorney as provided for in this Paragraph 7, along with copies of
all documents executed in connection therewith.
8. RECORDING OF MORTGAGE, ETC. Borrower forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, shall
cause this Mortgage, and any security instrument creating a lien or security
interest or evidencing the lien hereof upon the Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest of Lender in, the Property. Borrower shall pay all filing,
registration or recording fees, all expenses
incident to the preparation, execution and acknowledgment of and all federal,
state, county and municipal, taxes, duties, imposts, documentary stamps,
assessments and charges arising out of or in connection with the execution and
delivery of, this Mortgage, any Mortgage supplemental hereto, any security
instrument with respect to the Property or any instrument of further assurance,
except where prohibited by law so to do. Borrower shall hold harmless and
indemnify Lender, its successors and assigns, against any liability incurred by
reason of the imposition of any tax on the making or recording of this Mortgage.
9. RIGHT TO CURE DEFAULTS. Upon the occurrence of any Event of
Default, Lender may, but without any obligation to do so and without notice to
or demand on Borrower and without releasing Borrower from any obligation
hereunder, perform the obligations in Default in such manner and to such extent
as Lender may deem necessary to protect the security hereof. Lender is
authorized to enter upon the Property for such purposes or appear in, defend or
bring any action or proceeding to protect its interest in the Property or to
foreclose this Mortgage or collect the Debt, and the cost and expense thereof
(including reasonable attorneys' fees and disbursements to the extent permitted
by law), with interest thereon at the Default Rate for the period after notice
from Lender that such cost or expense was incurred to the date of payment to
Lender, shall constitute a portion of the Debt, shall be secured by this
Mortgage and the other Loan Documents and shall be due and payable to Lender
upon demand.
10. REMEDIES.
(a) Upon the occurrence of any Event of Default, Lender may take
such action, without notice or demand, as it deems advisable to protect and
enforce its rights against Borrower and in and to the Property, by Lender itself
or otherwise, including the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such order as Lender may
determine, in its sole discretion, without impairing or otherwise affecting the
other rights and remedies of Lender:
(i) declare the entire Debt to be immediately due and
payable;
(ii) institute a proceeding or proceedings, judicial or
nonjudicial, to the extent permitted by law, by advertisement, by action
or otherwise, for the complete foreclosure of this Mortgage, in which
case the Property may be sold for cash or upon credit in one or more
parcels or in several interests or portions and in any order or manner;
(iii) with or without entry, to the extent permitted and
pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Mortgage for the portion
of the Debt then due and payable, subject to the continuing lien of this
Mortgage for the balance of the Debt not then due;
(iv) sell for cash or upon credit the Property and all
estate, claim, demand, right, title and interest of Borrower therein and
rights of redemption thereof, pursuant to the power of sale, to the
extent permitted by law, or otherwise, at one or more sales, as an
entirety or in parcels, at such time and
place, upon such terms and after such notice thereof as may be required
or permitted by law;
(v) institute an action, suit or proceeding in equity for
the specific performance of any covenant, condition or agreement
contained herein or in any other Loan Document;
(vi) recover judgment on the Note either before, during or
after any proceeding for the enforcement of this Mortgage;
(vii) apply for the ex-parte appointment of a trustee,
receiver, liquidator or conservator of the Property, without notice and
without regard for the adequacy of the security for the Debt and without
regard for the solvency of the Borrower or of any person, firm or other
entity liable for the payment of the Debt;
(viii) enforce Lender's interest in the Leases and Rents and
enter into or upon the Property, either personally or by its agents,
nominees or attorneys and dispossess Borrower and its agents and
employees therefrom, and thereupon Lender may (A) use, operate, manage,
control, insure, maintain, repair, restore and otherwise deal with the
Property and conduct the business thereat; (B) complete any construction
on the Property in such manner and form as Lender deems advisable; (C)
make alterations, additions, renewals, replacements and improvements to
or on the Property; (D) exercise all rights and powers of Borrower with
respect to the Property, whether in the name of Borrower or otherwise,
including the right to make, cancel, enforce or modify Leases, obtain
and evict tenants, and demand, xxx for, collect and receive Rents; and
(E) unless prohibited by applicable law, apply the receipts from the
Property to the payment of the Debt, after deducting therefrom all
expenses (including reasonable attorneys' fees and disbursements)
incurred in connection with the aforesaid operations and all amounts
necessary to pay the Taxes, insurance and other charges in connection
with the Property, as well as just and reasonable compensation for the
services of Lender, and its counsel, agents and employees;
(ix) require Borrower to pay monthly in advance to Lender, or
any receiver appointed to collect the Rents, the fair and reasonable
rental value for the use and occupation of any portion of the Property
occupied by Borrower, and require Borrower to vacate and surrender
possession of the Property to Lender or to such receiver, and, in
default thereof, evict Borrower by summary proceedings or otherwise;
(x) foreclose this Mortgage in accordance with the laws of
the State of New Jersey with respect to the fee estate. The costs and
expenses incurred by Lender in the exercise of any of the remedies
provided in this Mortgage shall be secured by this Mortgage;
(xi) foreclose this Mortgage in accordance with the laws of
the State of New Jersey with respect to the Ground Lease or the
Sublease. The costs and
expenses incurred by Lender in the exercise of any of the remedies
provided in this Mortgage shall be secured by this Mortgage; or
(xii) pursue such other rights and remedies as may be
available at law or in equity or under the UCC, including the right to
receive and/or establish a lock box for all Rents and proceeds from the
Intangibles and any other receivables or rights to payments of Borrower
relating to the Property.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Property, this Mortgage shall continue as a lien on the remaining portion of the
Property.
(b) The proceeds of any sale made under or by virtue of this
Paragraph 10, together with any other sums which then may be held by Lender
under this Mortgage, whether under the provisions of this paragraph or
otherwise, shall be applied by Lender to the payment of the Debt in such
priority and proportion as Lender in its sole discretion shall deem proper.
(c) To the extent permitted by law, Lender may adjourn from time to
time any sale by it to be made under or by virtue of this Mortgage by
announcement at the time and place appointed for such sale or for such adjourned
sale or sales; and, except as otherwise provided by any applicable law, Lender,
without further notice or publication, may make such sale at the time and place
to which the same shall be so adjourned.
(d) Upon the completion of any sale or sales pursuant hereto,
Lender, or an officer of any court empowered to do so, shall execute and deliver
to the accepted purchaser or purchasers a good and sufficient instrument, or
good and sufficient instruments, conveying, assigning and transferring all
estate, right, title and interest in and to the property and rights sold. Any
sale or sales made under or by virtue of this Paragraph 10, made under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, shall operate to divest all the estate, right, title, interest, claim and
demand whatsoever, whether at law or in equity, of Borrower in and to the
properties and rights so sold, and shall be a perpetual bar both at law and in
equity against Borrower and against any and all persons claiming or who may
claim the same, or any part thereof, from, through or under Borrower, subject
only to such redemption rights as are required by law.
(e) To the extent permitted by law, upon any sale made under or by
virtue of this Paragraph 10, made under or by virtue of judicial proceedings or
of a judgment or decree of foreclosure and sale, Lender may bid for and acquire
the Property or any part thereof and in lieu of paying cash therefor may make
settlement for the purchase price by crediting upon the Debt the net sales price
after deducting therefrom the expenses of the sale and costs of the action and
any other sums which Lender is authorized to deduct under this Mortgage or any
other Loan Document.
(f) No recovery of any judgment by Lender and no levy of an
execution under any judgment upon the Property or upon any other property of
Borrower shall affect in any manner or to any extent the lien of this Mortgage
upon the Property or any part thereof, or any liens, rights, powers or remedies
of Lender hereunder, but such liens, rights, powers and remedies of Lender shall
continue unimpaired as before.
(g) To the extent permitted by law, Lender may terminate or rescind
any proceeding or other action brought in connection with its exercise of the
remedies provided in this Paragraph 10 at any time before the conclusion
thereof, as determined in Lender's sole discretion and without prejudice to
Lender.
(h) Lender may resort to any remedies and the security given by this
Mortgage or in any other Loan Document in whole or in part, and in such portions
and in such order as determined by Lender's sole discretion. No such action
shall in any way be considered a waiver of any rights, benefits or remedies
evidenced or provided by any Loan Document. The failure of Lender to exercise
any right, remedy or option provided in any Loan Document shall not be deemed a
waiver of such right, remedy or option or of any covenant or obligation secured
by any Loan Document. No acceptance by Lender of any payment after the
occurrence of any Event of Default and no payment by Lender of any obligation
for which Borrower is liable hereunder shall be deemed to waive or cure any
Event of Default, or Borrower's liability to pay such obligation. No sale of all
or any portion of the Property, no forbearance on the part of Lender, and no
extension of time for the payment of the whole or any portion of the Debt or any
other indulgence given by Lender to Borrower, shall operate to release or in any
manner affect the interest of Lender in the remaining Property or the liability
of Borrower to pay the Debt. No waiver by Lender shall be effective unless it is
in writing and then only to the extent specifically stated. All costs and
expenses of Lender in exercising its rights and remedies under this Paragraph 10
(including reasonable attorneys' fees and disbursements to the extent permitted
by law), shall be paid by Borrower immediately upon notice from Lender, with
interest at the Default Rate for the period after notice from Lender, and such
costs and expenses shall constitute a portion of the Debt and shall be secured
by this Mortgage.
(i) The interests and rights of Lender under the Loan Documents
shall not be impaired by any indulgence, including (i) any renewal, extension or
modification which Lender may grant with respect to any of the Debt, (ii) any
surrender, compromise, release, renewal, extension, exchange or substitution
which Lender may grant with respect to the Property or any portion thereof or
(iii) any release or indulgence granted to any maker, endorser, guarantor or
surety of any of the Debt.
11. RIGHT OF ENTRY. In addition to any other rights or remedies
granted under this Mortgage, Lender and its agents shall have the right to enter
and inspect the Property at any reasonable time during the term of this
Mortgage. The cost of such inspections or audits shall be borne by Borrower
should Lender determine that an Event of Default exists, including the cost of
all follow up or additional investigations or inquiries deemed reasonably
necessary by Lender. The cost of such inspections, if not paid for by Borrower
following demand, may be added to the principal balance of the sums due under
the Note and this Mortgage and shall bear interest thereafter until paid at the
Default Rate.
12. SECURITY AGREEMENT.
(a) This Mortgage is both a real property Mortgage and a "security
agreement" within the meaning of the UCC. The Property includes both real and
personal property and all other rights and interests, whether tangible or
intangible in nature, of Borrower in the Property. Borrower by executing and
delivering this Mortgage has granted and hereby
grants to Lender, as security for the Debt, a security interest in the Property
to the full extent that the Property may be subject to the UCC (such portion of
the Property so subject to the UCC being called in this paragraph the
"COLLATERAL"). This Mortgage shall also constitute a "fixture filing" for the
purposes of the UCC and is to be filed for record in the real estate records
where any part of the Property (including said fixtures) is situated. As such,
this Mortgage covers all items of the Collateral that are or are to become
fixtures. Information concerning the security interest herein granted may be
obtained from the parties at the addresses of the parties set forth in the first
paragraph of this Mortgage. If an Event of Default shall occur, Lender, in
addition to any other rights and remedies which it may have, shall have and may
exercise immediately and without demand, any and all rights and remedies granted
to a secured party upon default under the UCC, including, without limiting the
generality of the foregoing, the right to take possession of the Collateral or
any part thereof, and to take such other measures as Lender may deem necessary
for the care, protection and preservation of the Collateral. Upon request or
demand of Lender, Borrower shall at its expense assemble the Collateral and make
it available to Lender at a convenient place acceptable to Lender. Borrower
shall pay to Lender on demand any and all expenses, including reasonable
attorneys' fees and disbursements, incurred or paid by Lender in protecting the
interest in the Collateral and in enforcing the rights hereunder with respect to
the Collateral. Any notice of sale, disposition or other intended action by
Lender with respect to the Collateral, sent to Borrower in accordance with the
provisions hereof at least ten days prior to such action, shall constitute
commercially reasonable notice to Borrower. The proceeds of any disposition of
the Collateral, or any part thereof, may be applied by Lender to the payment of
the Debt in such priority and proportions as Lender in its sole discretion shall
deem proper. In the event of any change in name, identity or structure of
Borrower, Borrower shall notify Lender thereof and promptly after request shall
execute, file and record such UCC forms as are necessary to maintain the
priority of Lender's lien upon and security interest in the Collateral, and
shall pay all expenses and fees in connection with the filing and recording
thereof. If Lender shall require the filing or recording of additional UCC forms
or continuation statements, Borrower shall, promptly after request, execute,
file and record such UCC forms or continuation statements as Lender shall deem
necessary, and shall pay all expenses and fees in connection with the filing and
recording thereof, it being understood and agreed, however, that no such
additional documents shall increase Borrower's obligations under the Loan
Documents. Borrower hereby irrevocably appoints Lender as its attorney-in-fact,
coupled with an interest, to file with the appropriate public office on its
behalf any financing or other statements signed only by Lender, as secured
party, in connection with the Collateral covered by this Mortgage.
13. ACTIONS AND PROCEEDINGS. Lender has the right to appear in and
defend any action or proceeding brought with respect to the Property and to
bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its sole discretion, decides should be brought to protect its or
their interest in the Property. Lender shall, at its option, be subrogated to
the lien of any Mortgage or other security instrument discharged in whole or in
part by the Debt, and any such subrogation rights shall constitute additional
security for the payment of the Debt.
14. MARSHALLING AND OTHER MATTERS. Borrower hereby waives, to the
extent permitted by law, the benefit of all homestead, appraisement, valuation,
stay, extension, reinstatement and redemption laws now or hereafter in force and
all rights of marshalling in the event of any sale hereunder of the Property or
any part thereof or any interest therein. Further,
Borrower hereby expressly waives any and all rights of redemption from sale
under any order or decree of foreclosure of this Mortgage on behalf of Borrower,
and on behalf of each and every person acquiring any interest in or title to the
Property subsequent to the date of this Mortgage and on behalf of all persons to
the extent permitted by applicable law. The lien of this Mortgage shall be
absolute and unconditional and shall not in any manner be affected or impaired
by any acts or omissions whatsoever of Lender and, without limiting the
generality of the foregoing, the lien hereof shall not be impaired by (i) any
acceptance by Lender of any other security for any portion of the Debt, (ii) any
failure, neglect or omission on the part of Lender to realize upon or protect
any portion of the Debt or any collateral security therefor or (iii) any release
(except as to the property released), sale, pledge, surrender, compromise,
settlement, renewal, extension, indulgence, alteration, changing, modification
or disposition of any portion of the Debt or of any of the collateral security
therefor; and Lender may foreclose, or exercise any other remedy available to
Lender under other Loan Documents without first exercising or enforcing any of
its remedies under this Mortgage, and any exercise of the rights and remedies of
Lender hereunder shall not in any manner impair the Debt or the liens of any
other Loan Document or any of Lender's rights and remedies thereunder.
15. NOTICES. All notices, consents, approvals and requests required
or permitted hereunder shall be in writing, and shall be sent, and shall be
deemed effective, as provided in the Loan Agreement.
16. INAPPLICABLE PROVISIONS. If any term, covenant or condition of
this Mortgage is held to be invalid, illegal or unenforceable in any respect,
this Mortgage shall be construed without such provision.
17. HEADINGS. The paragraph headings in this Mortgage are for
convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
18. DUPLICATE ORIGINALS. This Mortgage may be executed in any number
of duplicate originals and each such duplicate original shall be deemed to be an
original.
19. DEFINITIONS. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage may be used interchangeably in singular or plural form; and the word
"BORROWER" shall mean "each Borrower and any subsequent owner or owners of a fee
interest in the Property or any part thereof, or any subsequent owner or owners
of a leasehold interest under the Ground Lease, or any subsequent owner or
owners of a Subleasehold interest under the Sublease" the word "LENDER" shall
mean "Lender and any subsequent holder of the Note," the words "PROPERTY" shall
include any portion of the Property and any interest therein, the word
"INCLUDING" means "including but not limited to" and the words "ATTORNEYS' FEES"
shall include any and all attorneys' fees, paralegal and law clerk fees,
including fees at the pre-trial, trial and appellate levels incurred or paid by
Lender in protecting its interest in the Property and Collateral and enforcing
its rights hereunder.
20. HOMESTEAD. Borrower hereby waives and renounces all homestead
and exemption rights provided by the Constitution and the laws of the United
States and of any state, in and to the Property as against the collection of the
Debt, or any part thereof.
21. ASSIGNMENTS. Lender shall have the right to assign or transfer
its rights under this Mortgage in connection with any transfer of its interest
in the Loan, or any portion thereof, in accordance with the Loan Agreement. Any
assignee or transferee shall be entitled to all the benefits afforded Lender
under this Mortgage.
22. WAIVER OF JURY TRIAL. BORROWER AND BY ITS FUNDING OF THE LOAN,
LENDER, HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT
BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS MORTGAGE OR ANY OTHER
LOAN DOCUMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY BORROWER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
EITHER PARTY HERETO IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.
23. CONSENTS. Any consent or approval by Lender in any single
instance shall not be deemed or construed to be Lender's consent or approval in
any like matter arising at a subsequent date, and the failure of Lender to
promptly exercise any right, power, remedy, consent or approval provided herein
or at law or in equity shall not constitute or be construed as a waiver of the
same nor shall Lender be estopped from exercising such right, power, remedy,
consent or approval at a later date. Any consent or approval requested of and
granted by Lender pursuant hereto shall be narrowly construed to be applicable
only to Borrower and the matter identified in such consent or approval and no
third party shall claim any benefit by reason thereof, and any such consent or
approval shall not be deemed to constitute Lender a venturer or partner with
Borrower nor shall privity of contract be presumed to have been established with
any such third party. If Lender deems it to be in its best interest to retain
assistance of persons, firms or corporations (including attorneys, title
insurance companies, appraisers, engineers and surveyors) with respect to a
request for consent or approval, Borrower shall reimburse Lender for all costs
reasonably incurred in connection with the employment of such persons, firms or
corporations.
24. EMPLOYEE BENEFIT PLAN. During the term of this Mortgage, unless
Lender shall have previously consented in writing, (i) Borrower shall take no
action that would cause it to become an "EMPLOYEE BENEFIT PLAN" as defined in 29
C.F.R. Section 2510.3-101, or "ASSETS OF A GOVERNMENTAL PLAN" subject to
regulation under the state statutes, and (ii) Borrower shall not sell, assign or
transfer the Property, or any portion thereof or interest therein, to any
transferee that does not execute and deliver to Lender its written assumption of
the obligations of this covenant. Borrower shall protect, defend, indemnify and
hold Lender harmless from and against all loss, cost, damage and expense
(including all attorneys' fees, excise taxes and costs of correcting any
prohibited transaction or obtaining an appropriate exemption) that Lender may
incur as a result of Borrower's breach of this covenant. This covenant and
indemnity shall survive the extinguishment of the lien of this Mortgage by
foreclosure or action in lieu thereof;
furthermore, the foregoing indemnity shall supersede any limitations on
Borrower's liability under any of the Loan Documents.
25. LOAN REPAYMENT AND DEFEASANCE. The lien of this Mortgage shall
be terminated, released and reconveyed of record by Lender prior to the Maturity
Date only in accordance with the terms and provisions set forth in the Loan
Agreement.
26. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY, AND BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
27. EXCULPATION. The liability of Borrower hereunder is limited
pursuant to Section 10.1 of the Loan Agreement.
28. COUNTERPARTS. This Mortgage may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
29. JOINT AND SEVERAL. Each Person constituting Borrower hereunder
shall have joint and several liability for the obligations of Borrower hereunder
except as otherwise provided in the Loan Documents.
PART II - NEW JERSEY PROVISIONS
30. MODIFICATION. This Mortgage is subject to modification in
accordance with N.J.S.A. 46:9-8.2.
31. SEVERABILITY. The provisions of this Mortgage shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Mortgage, or the application thereof to any person or entity
or any circumstance, is found to be invalid or unenforceable in any
jurisdiction, (a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (b) the
remainder of this Mortgage and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability.
32. HAZARDOUS WASTE AND OTHER SUBSTANCES.
(a) Borrower hereby represents and warrants to Lender that (except
as set forth in the Environmental Report dated December 11, 2005 and prepared by
AEI), as of the date hereof to the best of Borrower's knowledge: (i) to the best
of Borrower's knowledge, information and belief, the Property is not in direct
or indirect violation of any local, state or federal law, rule or regulation
pertaining to environmental regulation, contamination or clean-up (collectively,
"Environmental Laws"), including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
ss.9601 et seq. and 40 CFR ss.302.1 et seq.), the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. ss.6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. ss. 1251 et seq. and 40 CFR ss.116.1 et seq.), those
relating to lead based paint, and the Hazardous Materials Transportation Act (49
U.S.C. ss.1801 et seq.), the Industrial Site Recovery Act. N.J.S.A. 13:1K-6. et
seq. ("ISRA") ; the Spill Compensation and Control Act. N.J.S.A. 58:10-23.11. et
seq. ("Spill Act"): the Underground Storage of Hazardous Substances Act,
N.J.S.A. 58:10A-21, et seq.: the Toxic Catastrophe Prevention Act N.J.S.A.
13:1K-19. et seq.: the Worker and Community Right to Know Act, N.J.S.A. 34:5A-1,
et seq.; the Pollution Prevention Act, N.J.S.A. 13:1D-35, et seq.: the Air
Pollution Control Act, N.J.S.A. 26:2C-1. et seq.; the Solid Waste Management
Act. N.J.S.A. 13:IE-1. et seq.: the Sanitary Landfill Closure and Contingency
Fund Act, N.J.S.A. 13:1E-100. et seq.; the Solid Waste Utility Control Act,
N.J.S.A. 48:13A-1. et seq.: the Water Pollution Control Act. N.J.S.A. 58:10A-1,
et seq.: the Flood Hazard Control Act, N.J.S.A. 58:16A-50, et seq.: the
Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1. et seq.: the Coastal Area
Facility Review Act, N.J.S.A. 13:19-1. et seq.; the Wetlands Act of 1970,
N.J.S.A. 13:9A-1, et seq.: the Waterfront and Harbor Facilities Act. N.J.S.A.
12:5-1, et seq.: the Noise Control Act, N.J.S.A. 13:1G-1, et seq.: and the
Pesticide Control Act, N.J.S.A. 13:1F-1, et seq., and the regulations
promulgated pursuant to said laws, all as amended; (ii) to the best of
Borrower's knowledge, information and belief, no hazardous, toxic or harmful
substances, wastes, materials, pollutants or contaminants (including, without
limitation, asbestos, lead based paint, mold, fungus, spores, polychlorinated
biphenyls, petroleum products, flammable explosives, radioactive materials,
infectious substances or raw materials which include hazardous constituents) or
any other substances or materials which are included under or regulated by
Environmental Laws (collectively, "Hazardous Substances") are located on or have
been handled, generated, stored, processed or disposed of on or released or
discharged from the Property (including underground contamination) except for
those substances used by Borrower and tenants in the ordinary course of their
business and in compliance in all material respects with all Environmental Laws;
(iii) to the best of Borrower's knowledge, information and belief, the Property
is not subject to any private or governmental lien or judicial or administrative
notice or action relating to Hazardous Substances; (iv) to the best of
Borrower's knowledge, information and belief, there are no existing or closed
underground storage tanks or other underground storage receptacles for Hazardous
Substances on the Property; (v) Borrower has received no notice of, and to the
best of Borrower's knowledge and belief, there exists no investigation, action,
proceeding or claim by any agency, authority or unit of government or by any
third party which could result in any liability, penalty, sanction or judgment
under any Environmental Laws with respect to any condition, use or operation of
the Property nor does Borrower know of any basis for such a claim; (vi) Borrower
has received no notice of and, to the best of Borrower's knowledge and belief,
there has been no claim by any party that any use, operation or condition of the
Property has caused any nuisance or any other liability or adverse condition on
any other property nor does Borrower know of any basis for such a claim; and
(vii) Borrower has not in the past, does not presently and will not in the
future lease all or any portion of the Premise to any entity which has a
Standard Industrial Classification Number which constitutes an "Industrial
Establishment" under the ISRA.
(b) Borrower shall use commercially reasonably efforts to keep or
cause the Property to be kept free from Hazardous Substances (except those
substances used by Borrower or tenants in the ordinary course of its business
and in compliance in all material respects with all Environmental Laws), shall
not install or use any underground storage tanks, shall expressly prohibit the
use, generation, handling, storage, production, processing and disposal of
Hazardous Substances by all tenants of space in the Improvements (except those
substances used by one or
more of such tenants in the course of its business and in compliance in all
material respects with all Environmental Laws), and, without limiting the
generality of the foregoing, during the term of this Mortgage, shall not install
in the Improvements or permit to be installed in the Improvements asbestos or
any substance containing asbestos.
(c) Borrower shall promptly notify Lender if Borrower shall become
aware of the possible existence of any Hazardous Substances on the Property or
if Borrower shall become aware that the Property is or may be in direct or
indirect violation of any Environmental Laws. Further, immediately upon receipt
of the same, Borrower shall deliver to Lender copies of any and all orders,
notices, permits, applications, reports, and other communications, documents and
instruments pertaining to the actual, alleged or potential presence or existence
of any Hazardous Substances at, on, about, under, within, near or in connection
with the Property. To the extent that at any time the Property is not in
compliance with Environmental Laws, Borrower shall, promptly and when and as
required by Lender, at Borrower's sole cost and expense, take all actions as
shall be necessary or advisable for the clean-up of any and all portions of the
Property or other affected property to the extent required by Environmental
Laws, including, without limitation, all investigative, monitoring, removal,
containment and remedial actions in accordance with all applicable Environmental
Laws (and in all events in a manner satisfactory to Lender), and shall further
pay or cause to be paid, at no expense to Lender, all clean-up, administrative
and enforcement costs of applicable governmental agencies which may be asserted
against the Property. In the event Borrower fails to do so, Lender may, but
shall not be obligated to, cause the Property or other affected property to be
brought into conformance with Environmental Laws and any and all costs and
expenses incurred by Lender in connection therewith, together with interest
thereon at the Default Rate from the date incurred by Lender until actually paid
by Borrower, shall be immediately paid by 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 indebtedness evidenced by the Note. Borrower hereby grants to
Lender and its agents and employees access to the Property (subject to the
rights of tenants) and a license to remove any items necessary to bring the
Property in conformance with Environmental Laws. Borrower covenants and agrees,
at Borrower's sole cost and expense, to indemnify, defend (at trial and
appellate levels, and with attorneys, consultants and experts acceptable to
Lender), and hold Lender harmless from and against any and all liens, damages,
losses, liabilities, obligations, settlement payments, penalties, assessments,
citations, directives, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or of any nature
whatsoever (including, without limitation, reasonable attorneys', consultants'
and experts' fees and disbursements actually incurred in investigating,
defending, settling or prosecuting any claim, litigation or proceeding) which
may at any time be imposed upon, incurred by or asserted or awarded against
Lender or the Property, and arising from or out of: (i) the presence, release or
threat of release of any Hazardous Substances on, in, under or affecting all or
any portion of the Property or any surrounding areas, regardless of whether or
not caused by or within the control of Borrower; (ii) the violation of any
Environmental Laws relating to or affecting the Property, whether or not caused
by or within the control of Borrower; (iii) the failure by Borrower to comply
fully with the terms and conditions of this Section; (iv) the breach of any
representation or warranty contained in this Section; or (v) the enforcement of
this Section, including, without limitation, the cost of assessment, containment
and/or removal of any and all Hazardous Substances from all or any portion of
the Property or any surrounding areas, the cost of any actions taken in response
to the presence, release or threat of release of any Hazardous
Substances on, in, under or affecting any portion of the Property or any
surrounding areas to prevent or minimize such release or threat of release so
that it does not migrate or otherwise cause or threaten danger to present or
future public health, safety, welfare or the environment, and costs incurred to
comply with the Environmental Laws in connection with all or any portion of the
Property or any surrounding areas. The indemnity set forth in this Section shall
also include any diminution in the value of the security afforded by the
Property or any future reduction in the sales price of the Property by reason of
any matter set forth in this Section; provided that, with respect to the
foregoing, Borrower shall in no event be liable for an amount in excess of the
amount which would repay the Debt. Lender's rights under this Section shall
survive payment in full of the Debt and shall be in addition to all other rights
of Lender under this Mortgage, the Note and the other Loan Documents.
(d) Upon Lender's request, at any time after the occurrence of an
Event of Default hereunder or at such other time as Lender has reasonable
grounds to believe that Hazardous Substances are or have been released, stored
or disposed of on or around the Property or that the Property may be in
violation of the Environmental Laws, Borrower shall provide, at Borrower's sole
cost and expense, an inspection or audit of the Property prepared by a
hydrogeologist or environmental engineer or other appropriate consultant
approved by Lender indicating the presence or absence of Hazardous Substances on
the Property or an inspection or audit of the Improvements prepared by an
engineering or consulting firm approved by Lender indicating the presence or
absence of friable asbestos or substances containing asbestos on the Property.
If Borrower fails to provide such inspection or audit within thirty (30) days
after such request, Lender may order the same, and Borrower hereby grants to
Lender and its employees and agents access to the Property and a license to
undertake such inspection or audit. The cost of such inspection or audit,
together with interest thereon at the Default Rate from the date incurred by
Lender until actually paid by Borrower, shall be immediately due and payable to
Lender by Borrower on demand and shall be secured hereby and by all of the other
Loan Documents securing all or any part of the indebtedness evidenced by the
Note.
(e) If, prior to the date hereof, it was determined that the
Property contains Lead Based Paint, Borrower had prepared an assessment report
describing the location and condition of the Lead Based Paint (a "Lead Based
Paint Report"). If, at any time hereafter, Lead Based Paint is suspected by
Lender in its reasonable judgment of being present on the Property, Borrower
agrees, at its sole cost and expense and within twenty (20) days thereafter, to
cause to be prepared a Lead Based Paint Report prepared by an expert, and in
form, scope and substance, acceptable to Lender.
(f) Borrower agrees that if it has been, or if at any time hereafter
it is, determined that the Property contains Lead Based Paint, on or before
thirty (30) days following (i) the date hereof, if such determination was made
prior to the date hereof or (ii) such determination, if such determination is
hereafter made, as applicable, Borrower shall, at its sole cost and expense,
develop and implement, and thereafter diligently and continuously carry out (or
cause to be developed and implemented and thereafter diligently and continually
to be carried out), an operations, abatement and maintenance plan for the Lead
Based Paint on the Property, which plan shall be prepared by an expert, and be
in form, scope and substance reasonably acceptable to Lender (together with any
Lead Based Paint Report, the "O&M Plan"). (If an O&M Plan has been prepared
prior to the date hereof, Borrower agrees to diligently and
continually carry out (or cause to be carried out) the provisions thereof).
Compliance with the O&M Plan shall require or be deemed to require, without
limitation, the proper preparation and maintenance of all records, papers and
forms required under the Environmental Laws.
33. TRUE COPY. Borrower acknowledges receipt of a true copy of this
Mortgage, provided without charge.
IN WITNESS WHEREOF, Borrower has executed this instrument as of the day
and year first written above.
Woodcrest Road Urban Renewal, LLC,
a New Jersey limited liability company
By: Behringer Harvard Woodcrest III, LLC,
a Delaware limited liability company, its sole
member and manager
By: ______________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
Woodcrest Road Associates, L.P.,
a Pennsylvania limited partnership
By: Behringer Harvard Woodcrest I, LLC
a Delaware limited liability company, its sole
general partner
By: ______________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
STATE OF )
)SS:
COUNTY OF )
I CERTIFY that on January ___, 2006,
XXXXXX X. XXXXXXX, III, personally appeared before me and this person
acknowledged under oath to my satisfaction, that:
(a) this person signed and sealed the attached document as Secretary
of Behringer Harvard Woodcrest III, LLC, the limited liability company which is
the manager and sole member of Woodcrest Road Urban Renewal, LLC the limited
liability company named in this document;
(b) this document was signed and made by this person as the
company's voluntary act and deed and was duly authorized by the manager in its
capacity as sole member and manager of the company; and
(c) this person delivered the attached document as the voluntary act
and deed of the company as manager and sole member of the company.
-----------------------------
Notary Public
STATE OF )
)SS:
COUNTY OF )
I CERTIFY that on January ___, 2006,
XXXXXX X. XXXXXXX, III, personally appeared before me and this person
acknowledged under oath to my satisfaction, that:
(a) this person signed and sealed the attached document as Secretary
of Behringer Harvard Woodcrest I, LLC, the limited liability company which is
the sole general partner of Woodcrest Road Associates, L.P. the limited
partnership named in this document;
(b) this document was signed and made by this person as the limited
partnership's voluntary act and deed and was duly authorized by the company in
its capacity as sole general partner of the limited partnership; and
(c) this person delivered the attached document as the voluntary act
and deed of the company as sole general partner of the limited partnership.
-----------------------------
Notary Public
