Loan No. 00-0000000
OPEN-END MORTGAGE. THIS MORTGAGE SECURES FUTURE ADVANCES.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXXX XXXXX ASSOCIATES, L.P.
(Mortgagor)
to
GENERAL ELECTRIC CAPITAL CORPORATION
(Mortgagee)
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OPEN-END
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
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Dated as of January ____, 2003
Property Location: New Cumberland, Pennsylvania
DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
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OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
This Open-End Mortgage, Assignment of Leases and Rents, Security Agreement
and Fixture Filing (this "Mortgage") is executed as of January ____, 2003, by
FAIRVIEW PLAZA ASSOCIATES, L.P., a Delaware limited partnership, whose
organization number is 3582949 ("Mortgagor"), whose address for notice hereunder
is c/o Cedar Income Fund Partnership, L.P., 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, for the benefit of GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation ("Mortgagee"), whose address for notice is
c/o GEMSA Loan Services, L.P., 0000 Xxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx
00000-0000, Attention: Portfolio Manager/Access Program.
ARTICLE 1
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DEFINITIONS
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Section 1.1 Definitions. As used herein, the following terms shall have
the following meanings:
"Indebtedness": The sum of all principal, interest and all other
amounts due under or secured by the Loan Documents.
"Loan": The Loan made to the Mortgagor by the Mortgagee as evidenced
and secured by the Loan Documents.
"Loan Documents": The (a) Loan Agreement of even date between
Mortgagor and Mortgagee (the "Loan Agreement"), (b) Promissory Note of even
date, executed by Mortgagor, payable to the order of Mortgagee, in the stated
principal amount of $6,080,000.00, (c) this Mortgage, (d) all other documents
now or hereafter executed by Mortgagor, or any other person or entity, to
evidence, secure or guaranty the payment of all or any portion of the
Indebtedness or the performance of all or any portion of the Obligations or
otherwise executed in connection with the Note or this Mortgage, and (e) all
modifications, restatements, extensions, renewals and replacements of the
foregoing; provided however, in no event shall the term "Loan Documents"
include that certain Hazardous Materials Indemnity Agreement dated the date
hereof in favor of Mortgagee.
"Mortgaged Property": (a) the real property described in Exhibit A,
together with any greater estate therein as hereafter may be acquired by
Mortgagor (the "Land"), (b) all buildings, structures and other improvements,
now or at any time situated, placed or constructed upon the Land (the
"Improvements"), (c) all materials, supplies, equipment, apparatus and other
items of personal property now owned or hereafter acquired by Mortgagor and now
or hereafter attached to, installed in or used in connection with any of the
Improvements or the Land, and water, gas, electrical, storm and sanitary sewer
facilities and all other utilities whether or not situated in easements (the
"Fixtures"), (d) all right, title and interest of Mortgagor in and to all goods,
accounts, general intangibles, investment property, instruments, letters of
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credit, letter-of-credit rights, deposit accounts, documents, chattel paper and
all other personal property of any kind or character, including such items of
personal property as presently or hereafter defined in the UCC, now owned or
hereafter acquired by Mortgagor and now or hereafter affixed to, placed upon,
used in connection with, arising from or otherwise related to the Land and
Improvements or which may be used in or relating to the planning, development,
financing or operation of the Mortgaged Property, including, without limitation,
furniture, furnishings, equipment, machinery, money, insurance proceeds,
accounts, contract rights, software, trademarks, goodwill, promissory notes,
electronic and tangible chattel paper, payment intangibles, documents, trade
names, licenses and/or franchise agreements, rights of Mortgagor under leases of
Fixtures or other personal property or equipment, inventory, all refundable,
returnable or reimbursable fees, deposits or other funds or evidences of credit
or indebtedness deposited by or on behalf of Mortgagor with any governmental
authorities, boards, corporations, providers of utility services, public or
private, including specifically, but without limitation, all refundable,
returnable or reimbursable tap fees, utility deposits, commitment fees and
development costs, and commercial tort claims arising from the development,
construction, use, occupancy, operation, maintenance, enjoyment, acquisition or
ownership of the Mortgaged Property (the "Personalty"), (e) all reserves,
escrows or impounds required under the Loan Agreement and all deposit accounts
(including accounts holding security deposits) maintained by Mortgagor with
respect to the Mortgaged Property, (f) all plans, specifications, shop drawings
and other technical descriptions prepared for construction, repair or alteration
of the Improvements, and all amendments and modifications thereof (the "Plans"),
(g) all leases, subleases, licenses, concessions, occupancy agreements, rental
contracts, or other agreements (written or oral) now or hereafter existing
relating to the use or occupancy of all or any part of the Mortgaged Property,
together with all guarantees, letters of credit and other credit support,
modifications, extensions and renewals thereof (whether before or after the
filing by or against Mortgagor of any petition of relief under 11 U.S.C. ss. 101
et seq., as same may be amended from time to time (the "Bankruptcy Code")) and
all related security and other deposits (the "Leases") and all of Mortgagor's
claims and rights (the "Bankruptcy Claims") to the payment of damages arising
from any rejection by a lessee of any Lease under the Bankruptcy Code, (h) all
of the rents, revenues, issues, income, proceeds, profits, and all other
payments of any kind under the Leases for using, leasing, licensing, possessing,
operating from, residing in, selling or otherwise enjoying the Mortgaged
Property whether paid or accruing before or after the filing by or against
Mortgagor of any petition for relief under the Bankruptcy Code (the "Rents"),
(i) all other agreements, such as construction contracts, architects'
agreements, engineers' contracts, utility contracts, maintenance agreements,
franchise agreements, service contracts, permits, licenses, certificates and
entitlements in any way relating to the development, construction, use,
occupancy, operation, maintenance, enjoyment, acquisition or ownership of the
Mortgaged Property (the "Property Agreements"), (j) all rights, privileges,
tenements, hereditaments, rights-of-way, easements, appendages and appurtenances
appertaining to the foregoing, and all right, title and interest, if any, of
Mortgagor in and to any streets, ways, alleys, strips or gores of land adjoining
the Land or any part thereof, (k) all accessions, replacements and substitutions
for any of the foregoing and all proceeds thereof, (l) all insurance policies
(regardless of whether required by Mortgagee), unearned premiums therefor and
proceeds from such policies covering any of the above property now or hereafter
acquired by Mortgagor, (m) all mineral, water, oil and gas rights now or
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hereafter acquired and relating to all or any part of the Mortgaged Property,
(n) all tradenames, trademarks, service marks, logos, copyrights, goodwill,
books and records and all other general intangibles relating to or used in
connection with the operation of the Mortgaged Property; and (o) all of
Mortgagor's right, title and interest in and to any awards, remunerations,
reimbursements, settlements or compensation heretofore made or hereafter to be
made by any governmental authority pertaining to the Land, Improvements,
Fixtures or Personalty. As used in this Mortgage, the term "Mortgaged Property"
shall mean all or, where the context permits or requires, any portion of the
above or any interest therein.
"Obligations": All of the agreements, covenants, conditions,
warranties, representations and other obligations (other than to repay the
Indebtedness) made or undertaken by Mortgagor or any other person or entity to
Mortgagee or others as set forth in the Loan Documents.
"Permitted Encumbrances": The outstanding liens, easements,
restrictions, security interests and other exceptions to title set forth in the
policy of title insurance insuring the lien of this Mortgage, together with the
liens and security interests in favor of Mortgagee created by the Loan
Documents, none of which, individually or in the aggregate, materially interfere
with the benefits of the security intended to be provided by this Mortgage,
materially and adversely affect the value of the Mortgaged Property, impair the
use or operations of the Mortgaged Property or impair Mortgagor's ability to pay
its obligations in a timely manner.
"State": The Commonwealth of Pennsylvania.
"UCC": The Uniform Commercial Code of the State in effect from time to
time or, if the creation, perfection and enforcement of any security interest
herein granted is governed by the laws of a state other than the State, then, as
to the matter in question, the Uniform Commercial Code in effect in that state
from time to time.
Section 1.2 Other Terms. Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Loan Agreement.
ARTICLE 2
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GRANT
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Section 2.1 Grant. To secure the full and timely payment of the
Indebtedness and the full and timely performance of the Obligations, Mortgagor
hereby FREELY GIVES, MORTGAGES, GRANTS, BARGAINS, SELLS, ALIENS, ENFEOFFS,
RELEASES, CONVEYS, CONFIRMS AND ASSIGNS to Mortgagee the Mortgaged Property,
subject, however, to the Permitted Encumbrances; TO HAVE AND TO HOLD the
Mortgaged Property to Mortgagee, its successors and assigns, and Mortgagor does
hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the
title to the Mortgaged Property unto Mortgagee.
Page 4
ARTICLE 3
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WARRANTIES, REPRESENTATIONS AND COVENANTS
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Mortgagor warrants, represents and covenants to Mortgagee as follows:
Section 3.1 Title to Mortgaged Property and Lien of this Instrument.
Mortgagor owns the Mortgaged Property free and clear of any liens, claims or
interests, except the Permitted Encumbrances. This Mortgage creates valid,
enforceable first priority liens and security interests against the Mortgaged
Property. Mortgagor warrants that Mortgagor has good, marketable and insurable
title to the Mortgaged Property, subject only to the Permitted Encumbrances, and
has the full power, authority and right to execute, deliver and perform its
obligations under this Mortgage.
Section 3.2 First Lien Status. Mortgagor shall preserve and protect the
first lien and security interest status of this Mortgage and the other Loan
Documents. If any lien or security interest other than the Permitted
Encumbrances is asserted against the Mortgaged Property, Mortgagor shall
promptly, and at its expense, (a) give Mortgagee a detailed written notice of
such lien or security interest (including origin, amount and other terms), and
(b) pay the underlying claim in full or take such other action so as to cause it
to be released or, in Mortgagee's discretion, provide a bond or other security
reasonably satisfactory to Mortgagee for the payment of such claim.
Section 3.3 Payment and Performance. Mortgagor shall pay the Indebtedness
when due under the Loan Documents and shall perform the Obligations in full when
they are required to be performed.
Section 3.4 Replacement of Fixtures and Personalty. Mortgagor shall not,
without the prior written consent of Mortgagee, permit any of the Fixtures or
Personalty to be removed at any time from the Land or Improvements, unless the
removed item is removed temporarily for maintenance and repair or, if removed
permanently, is obsolete and is replaced by an article of equal or better
suitability and value, owned by Mortgagor subject to the liens and security
interests of this Mortgage and the other Loan Documents, and free and clear of
any other lien or security interest except such as may be first approved in
writing by Mortgagee.
Section 3.5 Maintenance of Rights of Way, Easements and Licenses.
Mortgagor shall maintain all rights of way, easements, grants, privileges,
licenses, certificates, permits, entitlements and franchises necessary for the
use of the Mortgaged Property and will not, without the prior consent of
Mortgagee, consent to any public restriction (including any zoning ordinance)
or private restriction as to the use of the Mortgaged Property. Mortgagor shall
comply with all restrictive covenants affecting the Mortgaged Property, and all
zoning ordinances and other public or private restrictions as to the use of the
Mortgaged Property.
Section 3.6 Inspection. Mortgagor shall permit Mortgagee, and Mortgagee's
agents, representatives and employees, upon reasonable prior notice to
Mortgagor, to inspect the Mortgaged Property and conduct such environmental and
engineering studies as Mortgagee may require, provided that such inspections and
studies shall not materially interfere with the use and operation of the
Mortgaged Property.
Page 5
Section 3.7 Other Covenants. All of the covenants in the Loan Agreement
are incorporated herein by reference and, together with covenants in this
Article 3, shall be covenants running with the land. The covenants set forth in
the Loan Agreement include, among other provisions: (a) the obligation to pay
when due all taxes on the Mortgaged Property or assessed against Mortgagee with
respect to the Loan, (b) the right of Mortgagee to inspect the Mortgaged
Property, (c) the obligation to keep the Mortgaged Property insured as Mortgagee
may require, (d) the obligation to comply with all legal requirements (including
environmental laws), maintain the Mortgaged Property in good condition, and
promptly repair any damage or casualty, and (e) except as otherwise permitted
under the Loan Agreement, the obligation of Mortgagor to obtain Mortgagee's
consent prior to entering into, modifying or taking other actions with respect
to Leases.
Section 3.8 Condemnation Awards and Insurance Proceeds.
(a) Condemnation Awards. Mortgagor assigns all awards and compensation
for any condemnation or other taking, or any purchase in lieu thereof, to
Mortgagee and authorizes Mortgagee to collect and receive such awards and
compensation and to give proper receipts and acquittances therefor, subject to
the terms of the Loan Agreement.
(b) Insurance Proceeds. Mortgagor assigns to Mortgagee all proceeds of
any insurance policies insuring against loss or damage to the Mortgaged
Property. Mortgagor authorizes Mortgagee to collect and receive such proceeds
and authorizes and directs the issuer of each of such insurance policies to make
payment for all such losses directly to Mortgagee, instead of to Mortgagor and
Mortgagee jointly.
Section 3.9 Transfer or Encumbrance of Mortgaged Property.
(a) Except as otherwise provided herein, without the prior written
consent of Mortgagee,
(i) neither Mortgagor nor any other Person having an ownership or
beneficial interest in Mortgagor shall (A) directly or indirectly
sell, transfer, convey, mortgage, pledge, or assign any interest in
the Mortgaged Property or any part thereof (including any
partnership, membership, or any other ownership interest in
Mortgagor); (B) further encumber, alienate, xxxxx x Xxxx or xxxxx
any other interest in the Mortgaged Property or any part thereof
(including any partnership, membership, or other ownership interest
in Mortgagor), whether voluntarily or involuntarily; or (C) enter
into any easement or other agreement granting rights in or
restricting the use or development of the Mortgaged Property;
Page 6
(ii) except as otherwise permitted herein or elsewhere in the Loan
Documents, no new general partner, member, or limited partner having
the ability to control the affairs of Mortgagor shall be admitted to
or created in Mortgagor (nor shall any existing general partner or
member or controlling limited partner withdraw from Mortgagor), and
no change in Mortgagor's organizational documents relating to
control over Mortgagor and/or the Mortgaged Property shall be
effected; and
(iii) no transfer shall be permitted which would cause Cedar Income Fund,
Ltd. and KIMCO Preferred Investor III, Inc. jointly to own less than
a controlling interest in Mortgagor and the Mortgaged Property and
not to have the power to direct the affairs of Mortgagor (provided
that the restrictions in this article shall not be deemed violated
by transfers between such entities, which transfers shall be
permitted without Lender's prior consent, so long as either entity
itself or the two entities jointly shall retain a controlling
interest in Mortgagor and the Mortgaged Property and the power to
direct the affairs of Mortgagor.
(b) As used in this Section 3.9, "transfer" shall include (i) an
installment sales agreement wherein Mortgagor agrees to sell the Mortgaged
Property or any part thereof for a price to be paid in installments; (ii) an
agreement by Mortgagor leasing all or a substantial part of the Mortgaged
Property for other than actual occupancy by a space tenant thereunder or a sale,
assignment or other transfer of, or the grant of a security interest in,
Mortgagor's right, title and interest in and to any Leases or any Rents; (iii)
the sale, transfer, conveyance, mortgage, pledge, or assignment of the legal or
beneficial ownership of any partnership interest in any general partner in
Mortgagor that is a partnership; (iv) the sale, transfer, conveyance, mortgage,
pledge, or assignment of the legal or beneficial ownership of any voting stock
in any general partner in Mortgagor that is a corporation; and (v) the sale,
transfer, conveyance, mortgage, pledge, or assignment of any membership interest
in any general partner of Mortgagor that is a limited liability company.
"Transfer" is specifically intended to include any pledge or assignment,
directly or indirectly, of a controlling interest in Mortgagor or its general
partner, controlling member, or controlling limited partner for purposes of
securing so-called "mezzanine" indebtedness to such transferor. Notwithstanding
anything to the contrary in this Section 3.9, "transfer" shall not include (A)
the leasing of individual units within the Project so long as Mortgagor complies
with the provisions of the Loan Documents relating to such leasing activity; or
(B) the transfers of limited partner, membership, or other ownership interests
in Mortgagor so long as such transfers, alone or in the aggregate, do not result
in the transfer of a controlling interest or more than 49% of the ownership or
beneficial interest in the Mortgagor and the provisions of Sections 3.9(a)(ii)
and 3.9(a)(iii) are satisfied. Notwithstanding anything in this Section 3.9 to
the contrary, no transfer shall be permitted which would be in violation of the
covenants set forth in Section 6.16 of the Loan Agreement.
(c) Mortgagee shall not be required to demonstrate any actual impairment
of its security or any increased risk of default hereunder in order to declare
the Indebtedness immediately due and payable upon Mortgagor's sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property
Page 7
without Mortgagee's consent. This provision shall apply to every sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property regardless of whether voluntary or not, or whether or not
Mortgagee has consented to any previous sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property or any interest in
Mortgagor shall not be deemed to be a waiver of Mortgagee's right to require
such consent to any future occurrence of same. Any sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in
contravention of this paragraph shall be null and void and of no force and
effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on
demand for all reasonable expenses (including, without limitation, reasonable
attorneys' fees and disbursements, title search costs and title insurance
endorsement premiums and Rating Agency [as defined below] fees and expenses)
incurred by Mortgagee in connection with the review, approval and documentation
of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property
will not be unreasonably withheld after consideration of all relevant factors,
provided that:
(i) no Event of Default or event which with the giving of notice or the
passage of time would constitute an Event of Default shall have
occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or
person of good character, creditworthy, with sufficient financial
worth considering the obligations assumed and undertaken, as
evidenced by financial statements and other information reasonably
requested by Mortgagee and shall be a Single Purpose Entity;
(iii) the Transferee and its property manager shall have sufficient
experience in the ownership and management of properties similar to
the Mortgaged Property, and Mortgagee shall be provided with
reasonable evidence thereof (and Mortgagee reserves the right to
approve the Transferee without approving the substitution of the
property manager);
(iv) Mortgagee shall have received confirmation in writing from the Rating
Agencies (as hereinafter defined) to the effect that such transfer
will not result in a qualification, downgrade or withdrawal of any
rating initially assigned or to be assigned in a Secondary Market
Page 8
Transaction. The term "Rating Agencies" as used herein shall mean
each of Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc., Xxxxx'x Investors Service, Inc., and Fitch, Inc., or any other
nationally-recognized statistical rating agency which has been
approved by Mortgagee;
(v) the Transferee shall have executed and delivered to Mortgagee an
assumption agreement in form and substance reasonably acceptable to
Mortgagee, evidencing such Transferee's agreement to abide and be
bound by the terms of the Note, this Mortgage and the other Loan
Documents, together with such legal opinions and title insurance
endorsements as may be reasonably requested by Mortgagee; and
(vi) Mortgagee shall have received an assumption fee equal to one percent
(1%) of the then unpaid principal balance of the Note in addition to
the payment of all costs and expenses incurred by Mortgagee in
connection with such assumption (including reasonable attorneys' fees
and costs).
ARTICLE 4
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DEFAULT AND FORECLOSURE
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Section 4.1 Remedies. If an Event of Default (as defined in the Loan
Agreement) exists, Mortgagee may, at Mortgagee's election, exercise any or all
of the following rights, remedies and recourses:
(a) Acceleration. Declare the Indebtedness to be immediately due and
payable, without further notice, presentment, protest, notice of intent to
accelerate, notice of acceleration, demand or action of any nature whatsoever
(each of which hereby is expressly waived by Mortgagor), whereupon the same
shall become immediately due and payable.
(b) Entry on Mortgaged Property. Enter the Mortgaged Property and take
exclusive possession thereof and of all books, records and accounts relating
thereto. If Mortgagor remains in possession of the Mortgaged Property after an
Event of Default and without Mortgagee's prior written consent, Mortgagee may
invoke any legal remedies to dispossess Mortgagor.
(c) Operation of Mortgaged Property. Hold, lease, develop, manage,
operate or otherwise use the Mortgaged Property upon such terms and conditions
as Mortgagee may deem reasonable under the circumstances (making such repairs,
alterations, additions and improvements and taking other actions, from time to
time, as Mortgagee deems necessary or desirable), and apply all Rents and other
amounts collected by Mortgagee in connection therewith in accordance with the
provisions of Section 4.7.
Page 9
(d) Foreclosure and Sale. Institute proceedings for the complete
foreclosure of this Mortgage, in which case the Mortgaged Property may be sold
for cash or credit in one or more parcels. At any such sale by virtue of any
judicial proceedings or any other legal right, remedy or recourse, the title to
and right of possession of any such property shall pass to the purchaser
thereof, and to the fullest extent permitted by law, Mortgagor shall be
completely and irrevocably divested of all of its right, title, interest, claim
and demand whatsoever, either at law or in equity, in and to the property sold
and such sale shall be a perpetual bar both at law and in equity against
Mortgagor, and against all other persons claiming or to claim the property sold
or any part thereof, by, through or under Mortgagor. Mortgagee may be a
purchaser at such sale and if Mortgagee is the highest bidder, may credit the
portion of the purchase price that would be distributed to Mortgagee against the
Indebtedness in lieu of paying cash.
(e) Receiver. Make application to a court of competent jurisdiction for,
and obtain from such court as a matter of strict right and without notice to
Mortgagor or regard to the adequacy of the Mortgaged Property for the repayment
of the Indebtedness, the appointment of a receiver of the Mortgaged Property,
and Mortgagor irrevocably consents to such appointment. Any such receiver shall
have all the usual powers and duties of receivers in similar cases, including
the full power to rent, maintain and otherwise operate the Mortgaged Property
upon such terms as may be approved by the court, and shall apply such Rents in
accordance with the provisions of Section 4.7.
(f) UCC. Exercise any and all rights and remedies granted to a secured
party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing: (i) the right to take possession of
the personal property or any part thereof, and to take such other measures as
Mortgagee may deem necessary for the care, protection and preservation of the
personal property, and (ii) request Mortgagor at its expense to assemble the
personal property and make it available to Mortgagee at a convenient place
acceptable to Mortgagee. Any notice of sale, disposition or other intended
action by Mortgagee with respect to the personal property sent to Mortgagor in
accordance with the provisions hereof at least ten (10) days prior to such
action, shall constitute commercially reasonable notice to Mortgagor.
(g) Other. Exercise all other rights, remedies and recourses granted
under the Loan Documents or otherwise available at law or in equity (including
an action for specific performance of any covenant contained in the Loan
Documents, or a judgment on the Note either before, during or after any
proceeding to enforce this Mortgage).
Section 4.2 Separate Sales. The Mortgaged Property may be sold in one or
more parcels and in such manner and order as Mortgagee in its sole discretion,
may elect; the right of sale arising out of any Event of Default shall not be
exhausted by any one or more sales.
Section 4.3 Remedies Cumulative, Concurrent and Nonexclusive. Mortgagee
shall have all rights, remedies and recourses granted in the Loan Documents and
Page 10
available at law or equity (including the UCC), which rights (a) shall be
cumulative and concurrent, (b) may be pursued separately, successively or
concurrently against Mortgagor or others obligated under the Note and the other
Loan Documents, or against the Mortgaged Property, or against any one or more of
them, at the sole discretion of Mortgagee, (c) may be exercised as often as
occasion therefor shall arise, and the exercise or failure to exercise any of
them shall not be construed as a waiver or release thereof or of any other
right, remedy or recourse, and (d) are intended to be, and shall be,
nonexclusive. No action by Mortgagee in the enforcement of any rights, remedies
or recourses under the Loan Documents or otherwise at law or equity shall be
deemed to cure any Event of Default.
Section 4.4 Release of and Resort to Collateral. Mortgagee may release,
regardless of consideration and without the necessity for any notice to a
consent by the holder of any subordinate lien on the Mortgaged Property, any
part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the lien or security interests
created in or evidenced by the Loan Documents or their stature as a first and
prior lien and security interest in and to the Mortgaged Property. For payment
of the Indebtedness, Mortgagee may resort to any other security in such order
and manner as Mortgagee may elect.
Section 4.5 Waiver of Redemption, Notice and Marshalling of Assets. To
the fullest extent permitted by law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future statute of limitations or law or
judicial decision exempting the Mortgaged Property from attachment, levy or sale
on execution or providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time for payment, (b)
all notices of any Event of Default or of Mortgagee's election to exercise or
its actual exercise of any right, remedy or recourse provided for under the Loan
Documents, and (c) any right to a marshalling of assets or a sale in inverse
order of alienation.
Section 4.6 Discontinuance of Proceedings. If Mortgagee shall have
proceeded to invoke any right, remedy or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon it for any
reason, Mortgagee shall have the unqualified right to do so and, in such an
event, Mortgagor and Mortgagee shall be restored to their former positions with
respect to the Indebtedness, the Obligations, the Loan Documents, the Mortgaged
Property and otherwise, and the rights, remedies, recourses and powers of
Mortgagee shall continue as if the right, remedy or recourse had never been
invoked, but no such discontinuance or abandonment shall waive any Event of
Default which may then exist or the right of Mortgagee thereafter to exercise
any right, remedy or recourse under the Loan Documents for such Event of
Default.
Section 4.7 Application of Proceeds. The proceeds of any sale of, and the
Rents and other amounts generated by the holding, leasing, management, operation
or other use of the Mortgaged Property, shall be applied by Mortgagee (or the
receiver, if one is appointed) in the following order unless otherwise required
by applicable law:
Page 11
(a) to the payment of the reasonable costs and expenses of taking
possession of the Mortgaged Property and of holding, using, leasing, repairing,
improving and selling the same, including, without limitation (i) receiver's
fees and expenses, (ii) court costs, (iii) reasonable attorneys' and
accountants' fees and expenses, (iv) costs of advertisement, (v) insurance
premiums and (vi) the payment of all ground rent, real estate taxes and
assessments, except any taxes, assessments or other charges subject to which the
Mortgaged Property shall have been sold;
(b) to the payment of all amounts (including interest), other than the
unpaid principal balance of the Note and accrued but unpaid interest, which may
be due to Mortgagee under the Loan Documents;
(c) to the payment of the Indebtedness and performance of the Obligations
in such manner and order of preference as Mortgagee in its sole discretion may
determine; and
(d) the balance, if any, to the payment of the persons legally entitled
thereto.
Section 4.8 Occupancy After Foreclosure. The purchaser at any foreclosure
sale pursuant to Section 4.1(d) shall become the legal owner of the Mortgaged
Property. All occupants of the Mortgaged Property shall, at the option of such
purchaser, become tenants of the purchaser at the foreclosure sale and shall
deliver possession thereof immediately to the purchaser upon demand. It shall
not be necessary for the purchaser at said sale to bring any action for
possession of the Mortgaged Property other than the statutory action of forcible
detainer in any justice court having jurisdiction over the Mortgaged Property.
Section 4.9 Additional Advances and Disbursements; Costs of Enforcement.
(a) If any Event of Default exists, Mortgagee shall have the right, but
not the obligation, to cure such Event of Default in the name and on behalf of
Mortgagor. All sums advanced and expenses incurred at any time by Mortgagee
under this Section 4.9, or otherwise under this Mortgage or any of the other
Loan Documents or applicable law, shall bear interest from the date that such
sum is advanced or expense incurred, to and including the date of reimbursement,
computed at the Default Rate (as defined in the Loan Agreement), and all such
sums, together with interest thereon, shall be secured by this Mortgage.
(b) Mortgagor shall pay all expenses (including reasonable attorneys'
fees and expenses) of or incidental to the perfection and enforcement of this
Mortgage and the other Loan Documents, or the enforcement, compromise or
settlement of the Indebtedness or any claim under this Mortgage and the other
Loan Documents, and for the curing thereof, or for defending or asserting the
rights and claims of Mortgagee in respect thereof, by litigation or otherwise.
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Section 4.10 No Mortgagee in Possession. Neither the enforcement of any
of the remedies under this Article 4, the assignment of the Rents and Leases
under Article 5, the security interests under Article 6, nor any other remedies
afforded to Mortgagee under the Loan Documents, at law or in equity shall cause
Mortgagee to be deemed or construed to be a mortgagee in possession of the
Mortgaged Property, to obligate Mortgagee to lease the Mortgaged Property or
attempt to do so, or to take any action, incur any expense, or perform or
discharge any obligation, duty or liability whatsoever under any of the Leases
or otherwise.
Section 4.11 Actions and Proceedings. Mortgagee has the right to appear
in and defend any action or proceeding brought with respect to the Mortgaged
Property and to bring any action or proceeding, in the name and on behalf of
Mortgagor, which Mortgagee, in its discretion, decides should be brought to
protect its interest in the Mortgaged Property.
ARTICLE 5
---------
ASSIGNMENT OF LEASES AND RENTS
------------------------------
Section 5.1 Assignment. Mortgagor acknowledges and confirms that it has
executed and delivered to Mortgagee an Assignment of Leases and Rents of even
date (the "Assignment of Leases and Rents"), intending that such instrument
create a present, absolute assignment to Mortgagee of the Leases and Rents and
not an assignment as security for the performance of the obligations under the
Loan Documents, or payment of the Indebtedness. Without limiting the intended
benefits or the remedies provided under the Assignment of Leases and Rents,
Mortgagor hereby assigns to Mortgagee, as further security for the Indebtedness
and the Obligations, the Leases and Rents. While any Event of Default exists,
Mortgagee shall be entitled to exercise any or all of the remedies provided in
the Assignment of Leases and Rents and in Article 4 hereof, including, without
limitation, the right to have a receiver appointed. If any conflict or
inconsistency exists between the assignment of the Rents and the Leases in this
Mortgage and the absolute assignment of the Rents and the Leases in the
Assignment of Leases and Rents, the terms of the Assignment of Leases and Rents
shall control.
Section 5.2 No Merger of Estates. So long as any part of the Indebtedness
and the Obligations secured hereby remain unpaid and undischarged, the fee and
leasehold estates to the Mortgaged Property shall not merge, but shall remain
separate and distinct, notwithstanding the union of such estates either in
Mortgagor, Mortgagee, any lessee or any third party by purchase or otherwise.
ARTICLE 6
---------
SECURITY AGREEMENT
------------------
Section 6.1 Security Interest. This Mortgage constitutes a "Security
Agreement" on personal property within the meaning of the UCC and other
applicable law and with respect to the Personalty, Fixtures, Plans, Leases,
Rents and Property Agreements. To this end, Mortgagor grants to Mortgagee, a
first and prior security interest in the Personalty, Fixtures, Plans, Leases,
Page 13
Rents and Property Agreements and all other Mortgaged Property which is personal
property to secure the payment of the Indebtedness and performance of the
Obligations, and agrees that Mortgagee shall have all the rights and remedies of
a secured party under the UCC with respect to such property. Any notice of sale,
disposition or other intended action by Mortgagee with respect to the
Personalty, Fixtures, Plans, Leases, Rents and Property Agreements sent to
Mortgagor at least ten (10) days prior to any action under the UCC shall
constitute reasonable notice to Mortgagor.
Section 6.2 Financing Statements. Mortgagor shall execute and deliver to
Mortgagee, in form and substance satisfactory to Mortgagee, such financing
statements and such further assurances as Mortgagee may, from time to time,
reasonably consider necessary to create, perfect and preserve Mortgagee's
security interest hereunder and Mortgagee may cause such statements and
assurances to be recorded and filed, at such times and places as may be required
or permitted by law to so create, perfect and preserve such security interest.
Mortgagor's state of organization is the State of Delaware and its chief
executive office is in the State of New York at the address set forth in the
first paragraph of this Mortgage.
Section 6.3 Fixture Filing. This Mortgage shall also constitute a
"fixture filing" for the purposes of the UCC against all of the Mortgaged
Property which is or is to become fixtures and shall be filed for recording in
the applicable land records. Information concerning the security interest herein
granted may be obtained at the addresses of Debtor (Mortgagor) and Secured Party
(Mortgagee) as set forth in the first paragraph of this Mortgage. A carbon,
photographic or other reproduction of this Mortgage or any financing statement
relating thereto shall be sufficient as a financing statement and shall be filed
and indexed in the real estate records of each county in which the Land or any
part thereof is located.
ARTICLE 7
---------
MISCELLANEOUS
-------------
Section 7.1 Limitation on Interest. It is the intention of the parties
hereto to conform strictly to applicable usury laws. Accordingly, all agreements
between Mortgagor and Mortgagee with respect to the Loan are hereby expressly
limited so that in no event, whether by reason of acceleration of maturity or
otherwise, shall the amount paid or agreed to be paid to Mortgagee or charged by
Mortgagee for the use, forbearance or detention of the money to be lent
hereunder or otherwise, exceed the maximum amount allowed by law. If the Loan
would be usurious under applicable law (including the laws of the state where
the Mortgaged Property is located and the laws of the United States of America),
then, notwithstanding anything to the contrary in the Loan Documents: (a) the
aggregate of all consideration which constitutes interest under applicable law
that is contracted for, taken, reserved, charged or received under the Loan
Documents shall under no circumstances exceed the maximum amount of interest
allowed by applicable law, and any excess shall be credited on the Indebtedness;
and (b) if maturity is accelerated by reason of an election by Mortgagee, or in
the event of any prepayment, then any consideration which constitutes interest
may never include more than the maximum amount allowed by applicable law. In
Page 14
such case, excess interest, if any, provided for in the Loan Documents or
otherwise, to the extent permitted by applicable law, shall be amortized,
prorated, allocated and spread from the date of advance until payment in full so
that the actual rate of interest is uniform through the term hereof. If such
amortization, proration, allocation and spreading is not permitted under
applicable law, then such excess interest shall be canceled automatically as of
the date of such acceleration or prepayment and, if theretofore paid, shall be
credited on the Indebtedness. The Loan Documents are contracts made under and
shall be construed in accordance with and governed by the laws of the State,
except that if at any time the laws of the United States of America permit
Mortgagee to contract for, take, reserve, charge or receive a higher rate of
interest than is allowed by the laws of the State (whether such federal laws
directly so provide or refer to the law of any state), then such federal laws
shall to such extent govern as to the rate of interest which Mortgagee may
contract for, take, reserve, charge or receive under the Loan Documents.
Section 7.2 Notices. Any notice required or permitted to be given under
this Mortgage shall be (a) in writing, (b) sent in the manner set forth in the
Loan Agreement, and (c) effective in accordance with the terms of the Loan
Agreement.
Section 7.3 Covenants Running with the Land. All Obligations contained in
this Mortgage are intended by Mortgagor and Mortgagee to be, and shall be
construed as, covenants running with the Mortgaged Property. As used herein,
"Mortgagor" shall refer to the party named in the first paragraph of this
Mortgage and to any subsequent owner of all or any portion of the Mortgaged
Property (without in any way implying that Mortgagee has or will consent to any
such conveyance or transfer of the Mortgaged Property). All persons or entities
who may have or acquire an interest in the Mortgaged Property shall be deemed to
have notice of, and be bound by, the terms of the Loan Agreement and the other
Loan Documents; however, no such party shall be entitled to any rights
thereunder without the prior written consent of Mortgagee.
Section 7.4 Attorney-in-Fact. Mortgagor hereby irrevocably appoints
Mortgagee and its successors and assigns, as its attorney-in-fact, which agency
is coupled with an interest, (a) to execute and/or record any notices of
completion, cessation of labor or any other notices that Mortgagee deems
appropriate to protect Mortgagee's interest, if Mortgagor shall fail to do so
within ten (10) days after written request by Mortgagee, (b) upon the issuance
of a deed pursuant to the foreclosure of this Mortgage or the delivery of a deed
in lieu of foreclosure, to execute all instruments of assignment, conveyance or
further assurance with respect to the Leases, Rents, Personalty, Fixtures, Plans
and Property Agreements in favor of the grantee of any such deed and as may be
necessary or desirable for such purpose, (c) to prepare, execute and file or
record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve
Mortgagee's security interests and rights in or to any of the collateral, and
(d) while any Event of Default exists, to perform any obligation of Mortgagor
hereunder; however: (i) Mortgagee shall not under any circumstances be obligated
to perform any obligation of Mortgagor; (ii) any sums advanced by Mortgagee in
such performance shall be added to and included in the Indebtedness and shall
bear interest at the Default Rate; (iii) Mortgagee as such attorney-in-fact
shall only be accountable for such funds as are actually received by Mortgagee;
and (iv) Mortgagee shall not be liable to Mortgagor or any other person or
entity for any failure to take any action which it is empowered to take under
this Section.
Page 15
Section 7.5 Successors and Assigns. This Mortgage shall be binding upon
and inure to the benefit of Mortgagee and Mortgagor and their respective
successors and assigns. Mortgagor shall not, without the prior written consent
of Mortgagee, assign any rights, duties or obligations hereunder.
Section 7.6 No Waiver. Any failure by Mortgagee to insist upon strict
performance of any of the terms, provisions or conditions of the Loan Documents
shall not be deemed to be a waiver of same, and Mortgagee shall have the right
at any time to insist upon strict performance of all of such terms, provisions
and conditions.
Section 7.7 Subrogation. To the extent proceeds of the Note have been
used to extinguish, extend or renew any indebtedness against the Mortgaged
Property, then Mortgagee shall be subrogated to all of the rights, liens and
interests existing against the Mortgaged Property and held by the holder of such
indebtedness and such former rights, liens and interests, if any, are not
waived, but are continued in full force and effect in favor of Mortgagee.
Section 7.8 Loan Agreement. If any conflict or inconsistency exists
between this Mortgage and the Loan Agreement, the Loan Agreement shall govern.
Section 7.9 Release. Upon payment in full of the Indebtedness and
performance in full of the Obligations, Mortgagee, at Mortgagor's expense, shall
release the liens and security interests created by this Mortgage pursuant to
forms of release or satisfaction as shall be sufficient to record in the public
records in order to release all such liens of record.
Section 7.10 Waiver of Stay, Moratorium and Similar Rights. Mortgagor
agrees, to the full extent that it may lawfully do so, that it will not at any
time insist upon or plead or in any way take advantage of any appraisement,
valuation, stay, marshalling of assets, extension, redemption or moratorium law
now or hereafter in force and effect so as to prevent or hinder the enforcement
of the provisions of this Mortgage or the indebtedness secured hereby, or any
agreement between Mortgagor and Mortgagee or any rights or remedies of
Mortgagee.
Section 7.11 Limitation on Liability. Notwithstanding anything to the
contrary set forth in this Mortgage, Mortgagor's liability under this Mortgage
is subject to the limitation on liability provisions of Article 12 of the Loan
Agreement.
Section 7.12 Obligations of Mortgagor, Joint and Several. If more than
one person or entity has executed this Mortgage as "Mortgagor," the obligations
of all such persons or entities hereunder shall be joint and several.
Section 7.13 Governing Law. This Mortgage shall be governed by the laws
of the State and the applicable laws of the United States of America.
Section 7.14 Headings. The Article, Section and Subsection titles hereof
are inserted for convenience of reference only and shall in no way alter, modify
or define, or be used in construing, the text of such Articles, Sections or
Subsections.
Page 16
Section 7.15 Entire Agreement. This Mortgage and the other Loan Documents
embody the entire agreement and understanding between Mortgagee and Mortgagor
and supersede all prior agreements and understandings between such parties
relating to the subject matter hereof and thereof. Accordingly, the Loan
Documents may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
Section 7.16 Counterparts. This Mortgage may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
ARTICLE 8
---------
SPECIAL STATE PROVISIONS
------------------------
Section 8.1 Future Advances. This Mortgage is an Open-End Mortgage as
defined in 42 Pa.C.S.A. ss.8143(f). Without the limiting of any other provisions
of this Mortgage, Mortgagee may make future advances, and this Mortgage shall
secure repayment of such advances and the interest thereon, for the payment of
taxes, assessments, maintenance charges, insurance premiums, or costs similar or
dissimilar, incurred for the protection and preservation of the Mortgaged
Property or for the lien of this Mortgage, expenses incurred by Mortgagee by
reason of default by Mortgagor, or advances made under a construction loan to
enable the completion of the improvements for which the construction loan was
originally made.
Section 8.2 Miscellaneous Pennsylvania Provisions. This Mortgage is
intended to be a purchase money mortgage as defined in 42 Pa.C.S.A. ss.8141 and
shall be entitled to all the benefits as such under the lien priority provisions
of 42 Pa. C.S.A. ss.8141, as amended.
Section 8.3 Advance Money Mortgage. If Mortgagor sends a written notice
to Mortgagee, including a notice under 42 Pa.C.S.A. ss.8143, which purports to
limit the Indebtedness secured by this Mortgage and to release the obligations
of Mortgagee to make additional advances to Mortgagor as contemplated by the
Note, such notice shall be ineffective as to any future advances made: (a) to
enable completion of improvements to the Mortgaged Property, the financing of
which, in whole or in part, this Mortgage was given to secure; (b) to pay taxes,
assessments, maintenance charges and insurance premiums; (c) for costs incurred
for the protection and preservation of the Mortgaged Property or the lien of
this Mortgage; (d) for expenses incurred by Mortgagee by reason of a default of
Mortgagor hereunder or under the Note or the other Loan Documents; and (e) for
any other costs incurred by Mortgagee to protect and preserve the Mortgaged
Property. It is the intention of the parties hereto that any such advance made
by Mortgagee after any such notice by Mortgagor shall be secured by the lien of
this Mortgage on the Mortgaged Property.
Section 8.4 Notices to Mortgagee. Mortgagor agrees that any notice given
by Mortgagor to Mortgagee purportedly pursuant to 42 Pa. C.S.A. ss.8143 shall be
Page 17
given by registered or certified mail, return receipt requested, to the address
of the Mortgagee set forth on the signature page of this Mortgage and only to
such address, and such notice shall be deemed to have been received no earlier
than the date actually and physically received at such address.
NOW, THEREFORE, if the Note and other Indebtedness aforesaid and any
additional notes which in accordance with the provisions hereof shall be secured
hereby, and any extensions or renewals thereof, shall be well and truly paid
according to their tenor, and if all agreements and provisions contained therein
and in all such notes and herein are fully kept and performed, then this
Mortgage shall become null and void; otherwise to remain in full force and
effect.
Page 18
EXECUTED under seal as of the date first above written.
BORROWER: FAIRVIEW PLAZA ASSOCIATES, L.P,
a Delaware limited partnership
By: CIF-FAIRVIEW PLAZA ASSOCIATES, LLC,
a Delaware limited liability company,
its General Partner
By: CEDAR INCOME FUND PARTNERSHIP,
L.P., a Delaware limited partnership,
Sole and Managing Member
By: CEDAR INCOME FUND, LTD.,
a Maryland Real Estate Investment
Trust, its General Partner
By:_______________________________
Xxx X. Xxxxxx, President
[SEAL]
I certify that the address of the within named Mortgagee is:
c/o GEMSA Capital Services, L.P.
0000 Xxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
By:_______________________________
Agent for Mortgagee
Page 19
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF _________________ )
On this, the _____ day of January, 2003, before me, the subscriber, a
Notary Public in and for the Commonwealth and County aforesaid, personally
appeared XXX X. XXXXXX who acknowledged herself to be the President of CEDAR
INCOME FUND, LTD., a Maryland real estate investment trust and General Partner
of CEDAR INCOME FUND PARTNERSHIP, L.P., a Delaware limited partnership and Sole
and Managing Member of CIF-FAIRVIEW PLAZA ASSOCIATES, LLC, a Delaware limited
liability company and General Partner FAIRVIEW PLAZA ASSOCIATES, L.P., a
Delaware limited partnership, of who I am satisfied is the person who signed the
within instrument and who acknowledged that she executed same as such on behalf
of said FAIRVIEW PLAZA ASSOCIATES, L.P., being authorized to do so, and that the
within instrument is the voluntary act and deed of such FAIRVIEW PLAZA
ASSOCIATES, L.P.
WITNESS my hand and seal the day and year aforesaid.
______________________________________
Notary Public
My commission Expires:________________
Page 20
EXHIBIT A
Legal Description
ALL THAT CERTAIN lot of land situate in the Township of Fairview, County of York
and Commonwealth of Pennsylvania, bounded and described according to an
ALTA/ACSM Survey by J. Xxxxxxx Xxxxx Associates, Inc., Xxxxx X. Xxxxxxxxxxx,
PLS, Job Xx. 000-X dated October 25, 2002, as follows:
BEGINNING AT A POINT at lands now or formerly Susquehanna Area Regional Airport
Authority; said point being the southeastern corner of herein described parcel;
thence by said lands North 74 degrees 26 minutes 00 seconds West a distance of
618.88 feet to a point on the eastern right-of-way line of New York Road (SR
1003); thence by said right-of-way line by a curve to the left having a radius
of 1356.91 feet and an arc distance of 329.61 feet the chord of said curve being
North 17 degrees 49 minutes 40 seconds East a distance of 328.80 feet (Deed
329.46 feet) to a point at lands now or formerly Venture Quest Development Inc.;
thence by said lands South 84 degrees 49 minutes 57 seconds East a distance of
198.83 feet (Deed 198.84 feet) to a point; thence by same North 57 degrees 40
minutes 03 seconds East a distance of 347.78 feet to an iron pipe; thence by
same South 53 degrees 40 minutes 00 seconds East a distance of 214.38 feet to an
iron pin at lands nor or formerly Housing Authority of City of York; thence by
said lands South 18 degrees 00 minutes 18 seconds West a distance of 546.96 feet
to a point, the ping of BEGINNING.
CONTAINING 6.7391 Acres.
TOGETHER WITH the rights for installation, maintenance and repair of a 30 inch
storm drain pipe as set forth in Agreement dated October 2, 1990 recorded in
Deed Book 107-U, Page 977.
TOGETHER WITH AND UNDER AND SUBJECT TO rights of joint access over shared
driveway as contained in Agreement Venture Quest Development, Inc.,
____________, 2002, and recorded ________, 2002.
Page 21
