OPEN-END MORTGAGE, SECURITY AGREEMENT, FIXTURE FILING,
FINANCING STATEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS OPEN-END MORTGAGE, SECURITY AGREEMENT, FIXTURE
FILING, FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS
(this "Mortgage") is executed as of December 23, 1996, by MARK
CENTERS LIMITED PARTNERSHIP, a Delaware limited partnership
("Mortgagor") in favor of, and for the use and benefit of, ANCHOR
NATIONAL LIFE INSURANCE COMPANY, an Arizona corporation
("Mortgagee").
THIS OPEN-END MORTGAGE, SECURITY AGREEMENT, FIXTURE
FILING, FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS
SECURES FUTURE ADVANCES.
ARTICLE I.
PARTIES, PROPERTY, AND DEFINITIONS
The following terms and references shall have the
meanings indicated:
1.1 Chattels: All goods, fixtures, inventory,
equipment, building and other materials, supplies, and other
tangible personal property of every nature now owned or hereafter
acquired by Mortgagor and used, intended for use, or reasonably
required in the construction, development, or operation of the
Property, together with all accessions thereto, replacements and
substitutions therefor, and proceeds thereof.
1.2 Default: Any matter which, with the giving of
notice, passage of time, or both, would constitute an Event of
Default.
1.3 Environmental Indemnity Agreement: The
Environmental Indemnity Agreement of even date herewith made by
Mortgagor and the Surety for the benefit of Mortgagee.
1.4 ERISA: The Employee Retirement Income Security
Act of 1974, as amended, together with all rules and regulations
issued thereunder.
1.5 Event of Default: As defined in Article VI.
1.6 General Partner: Mark Centers Trust, a Maryland
business trust, and any other or successor general partner of
Mortgagor.
1.7 Intangible Personalty: The right to use all
trademarks and trade names and symbols or logos used in
connection therewith, or any modifications or variations thereof,
in connection with the operation of the improvements existing or
to be constructed on the Property, together with all accounts,
monies in the possession of Mortgagee (including without
limitation proceeds from insurance, retainages and deposits for
taxes and insurance), Permits, contract rights (including,
without limitation, rights to receive insurance proceeds) and
general intangibles (whether now owned or hereafter acquired, and
including proceeds thereof) relating to or arising from
Mortgagor's ownership, use, operation, leasing, or sale of all or
any part of the Property, specifically including but in no way
limited to any right which Mortgagor may have or acquire to
transfer any development rights from the Property to other real
property, and any development rights which may be so transferred.
1.8 Lease Certificate: The certificate of even date
herewith made by Mortgagor to Mortgagee concerning Leases.
1.9 Leases: Any and all leases, subleases and other
agreements under the terms of which any person other than
Mortgagor has or acquires any right to occupy or use the
Property, or any part thereof.
1.10 Loan Documents: The Note, all of the deeds of
trust, mortgages and other instruments and documents securing the
Note, including this Mortgage, the Environmental Indemnity
Agreement, the Suretyship Agreement, the Lease Certificate and
each other document executed or delivered in connection with the
transaction pursuant to which the Note has been executed and
delivered. The term "Loan Documents" also includes all
modifications, extensions, renewals, and replacements of each
document referred to above.
1.11 Mortgagee: The Mortgagee named in the
introductory paragraph of this Mortgage (Taxpayer Identification
No. 86-0198983), whose legal address is 1 SunAmerica Center,
Century City, Los Angeles, California 90067-6022, together with
any future holder of the Note.
1.12 Mortgagor: The Mortgagor named in the
introductory paragraph of this Mortgage (Taxpayer Identification
No. 23-2724653), whose legal address is 600 Third Avenue,
Kingston, Pennsylvania 18704-1679, together with any future
owner of the Property or any part thereof or interest therein.
1.13 Note: Mortgagor's promissory note of even date
herewith, payable to the order of Mortgagee in the principal face
amount of $4,100,000.00, the last payment under which is due on
January 1, 2004, unless such due date is accelerated, together
with all renewals, substitutions, extensions and modifications of
such promissory note. All terms and provisions of the Note are
incorporated by this reference in this Mortgage.
1.14 Permits: All permits, licenses, certificates and
authorizations necessary for the beneficial development,
ownership, use, occupancy, operation and maintenance of the
Property, including, but not limited to, certificates of
occupancy.
1.15 Permitted Exceptions: The matters set forth in
Exhibit B attached hereto.
1.16 Property: The tract or tracts of land described
in Exhibit A attached, together with the following:
(a) All buildings, structures, and improvements now or
hereafter located on such tract or tracts, as well as all rights-
of-way, easements, and other appurtenances thereto;
(b) All of Mortgagor's right, title and interest in
any land lying between the boundaries of such tract or tracts and
the center line of any adjacent street, road, avenue, or alley,
whether opened or proposed;
(c) All of the rents, income, receipts, revenues,
issues and profits of and from such tract or tracts and
improvements;
(d) All (i) water and water rights (whether decreed or
undecreed, tributary, nontributary or not nontributary, surface
or underground, or appropriated or unappropriated); (ii) ditches
and ditch rights; (iii) spring and spring rights; (iv) reservoir
and reservoir rights; and (v) shares of stock in water, ditch and
canal companies and all other evidence of such rights, which are
now owned or hereafter acquired by Mortgagor and which are
appurtenant to or which have been used in connection with such
tract or tracts or improvements;
(e) All minerals, crops, timber, trees, shrubs,
flowers, and landscaping features now or hereafter located on,
under or above such tract or tracts;
(f) All machinery, apparatus, equipment, fittings,
fixtures (whether actually or constructively attached, and
including all trade, domestic, and ornamental fixtures) now or
hereafter located in, upon, or under such tract or tracts or
improvements and used or usable in connection with any present or
future operation thereof, including but not limited to all
heating, air-conditioning, freezing, lighting, laundry,
incinerating and power equipment; engines; pipes; pumps; tanks;
motors; conduits; switchboards; plumbing, lifting, cleaning, fire
prevention, fire extinguishing, refrigerating, ventilating,
cooking, and communications apparatus; boilers, water heaters,
ranges, furnaces, and burners; appliances; vacuum cleaning
systems; elevators; escalators; shades; awnings; screens; storm
doors and windows; stoves; refrigerators; attached cabinets;
partitions; ducts and compressors; rugs and carpets; draperies;
and all additions thereto and replacements therefor;
(g) All development rights associated with such tract
or tracts, whether previously or subsequently transferred to such
tract or tracts from other real property or now or hereafter
susceptible of transfer from such tract or tracts to other real
property;
(h) All awards and payments, including interest
thereon, resulting from the exercise of any right of eminent
domain or any other public or private taking of, injury to, or
decrease in the value of, any of such property; and
(i) All other and greater rights and interests of
every nature in such tract or tracts and in the possession or use
thereof and income therefrom, whether now owned or subsequently
acquired by Mortgagor.
1.17 Sale: The transfer or sale of the Property,
whether by agreement, execution, foreclosure judgment or any
other court order.
1.18 Secured Obligations: All present and future
obligations of Mortgagor to Mortgagee evidenced by or contained
in the Loan Documents, excluding the Environmental Indemnity
Agreement, whether stated in the form of promises, covenants,
representations, warranties, conditions, or prohibitions or in
any other form. If the maturity of the Note secured by this
Mortgage is accelerated, the Secured Obligations shall include an
amount equal to any prepayment premium which would be payable
under the terms of the Note as if the Note were prepaid in full
on the date of the acceleration. If under the terms of the Note
no voluntary prepayment would be permissible on the date of the
such acceleration, then the prepayment fee or premium to be
included in the Secured Obligations shall be equal to one hundred
fifty percent (150%) of the highest prepayment fee or premium set
forth in the Note, calculated as of the date of such
acceleration.
1.19 Surety: Mark Centers Trust, a Maryland business
trust.
1.20 Suretyship Agreement: The Suretyship Agreement of
even date herewith made by the Surety for the benefit of
Mortgagee.
ARTICLE II
GRANTING CLAUSE
2.1 Grant to Mortgagee. As security for the Secured
Obligations, Mortgagor hereby grants, bargains, sells, conveys,
mortgages, aliens, enfeoffs, releases, confirms, assigns,
transfers, sets over and warrants unto Mortgagee the entire
right, title, interest and estate of Mortgagor in and to the
Property, whether now owned or hereafter acquired; TO HAVE AND
TO HOLD the same, together with all and singular the rights,
hereditaments, and appurtenances in anywise appertaining or
belonging thereto, unto Mortgagee and Mortgagee's successors,
substitutes and assigns forever.
2.2 Security Interest to Mortgagee. As additional
security for the Secured Obligations, and without limiting any of
the other provisions of this Mortgage, Mortgagor hereby grants to
Mortgagee a security interest in the Property, Chattels and
Intangible Personalty. To the extent any of the Property,
Chattels or the Intangible Personalty may be or have been
acquired with funds advanced by Mortgagee under the Loan
Documents, this security interest is a purchase money security
interest. Without limiting any of the other provisions of this
Mortgage, this Mortgage constitutes a Security Agreement under
the Uniform Commercial Code of the state in which the Property is
located (the "Code") with respect to any part of the Property,
Chattels and Intangible Personalty that may or might now or
hereafter be or be deemed to be personal property, fixtures or
property other than real estate (all collectively hereinafter
called "Collateral"); all of the terms, provisions, conditions
and agreements contained in this Mortgage pertain and apply to
the Collateral as fully and to the same extent as to any other
property comprising the Property, and the following provisions of
this Section shall not limit the generality or applicability of
any other provisions of this Mortgage but shall be in addition
thereto:
(a) The Collateral shall be used by Mortgagor solely
for business purposes, and all Collateral (other than the
Intangible Personalty) shall be installed upon the real estate
comprising part of the Property for Mortgagor's own use or as the
equipment and furnishings furnished by Mortgagor, as landlord, to
tenants of the Property;
(b) The Collateral (other than the Intangible
Personalty) shall be kept at the real estate comprising a part of
the Property, and shall not be removed therefrom without the
consent of Mortgagee (being the Secured Party as that term is
used in the Code); and the Collateral (other than the Intangible
Personalty) may be affixed to such real estate but shall not be
affixed to any other real estate;
(c) No financing statement covering any of the
Collateral or any proceeds thereof is on file in any public
office; and Mortgagor will, at its cost and expense, upon demand,
furnish to Mortgagee such further information and will execute
and deliver to Mortgagee such financing statements and other
documents in form satisfactory to Mortgagee and will do all such
acts and things as Mortgagee may at any time or from time to time
reasonably request or as may be necessary or appropriate to
establish and maintain a perfected first-priority security
interest in the Collateral as security for the Secured
Obligations, subject to no adverse liens or encumbrances; and
Mortgagor will pay the cost of filing the same or filing or
recording such financing statements or other documents and this
instrument in all public offices wherever filing or recording is
deemed by Mortgagee to be necessary or desirable;
(d) The terms and provisions contained in this Section
and in Section 7.6 of this Mortgage shall, unless the context
otherwise requires, have the meanings and be construed as
provided in the Code; and
(e) This Mortgage constitutes a financing statement
under the Code with respect to the Collateral. As such, this
Mortgage covers all items of the Collateral that are or are to
become fixtures. The filing of this Mortgage in the real estate
records of the county where the Property is located shall also
operate as a fixture filing in accordance with Sections 9-313 and
9-402 of the Code. Information concerning the security interests
created hereby may be obtained from Mortgagee at the address set
forth in Article I of this Mortgage. Mortgagor is the "Debtor"
and Mortgagee is the "Secured Party" (as those terms are defined
and used in the Code) insofar as this Mortgage constitutes a
financing statement.
2.3 Environmental Indemnity Agreement Not Secured.
Notwithstanding any provisions of this Mortgage or any other Loan
Document, the obligations of Mortgagor and Guarantor arising from
the Environmental Indemnity Agreement are not and shall not be
Secured Obligations under this Mortgage.
ARTICLE III
MORTGAGOR'S REPRESENTATIONS AND WARRANTIES
3.1 Warranty of Title. Mortgagor represents and
warrants to Mortgagee that:
(a) Mortgagor has good and marketable fee simple title
to the Property, and such fee simple title is free and clear of
all liens, encumbrances, security interests and other claims
whatsoever, subject only to the Permitted Exceptions;
(b) Mortgagor is the sole and absolute owner of the
Chattels and the Intangible Personalty, free and clear of all
liens, encumbrances, security interests and other claims
whatsoever, subject only to the Permitted Exceptions;
(c) This Mortgage is a valid and enforceable first
lien and security interest on the Property, Chattels and
Intangible Personalty, subject only to the Permitted Exceptions;
(d) Mortgagor, for itself and its successors and
assigns, hereby agrees to warrant and forever defend, all and
singular of the property and property interests granted and
conveyed pursuant to this Mortgage, against every person
whomsoever lawfully claiming, or to claim, the same or any part
thereof; and
The representations, warranties and covenants contained
in this Section shall survive foreclosure of this Mortgage, and
shall inure to the benefit of and be enforceable by any person
who may acquire title to the Property, the Chattels, or the
Intangible Personalty pursuant to any such foreclosure.
3.2 Due Authorization. If Mortgagor is other than a
natural person, then each individual who executes this document
on behalf of Mortgagor represents and warrants to Mortgagee that
such execution has been duly authorized by all necessary
corporate, partnership, or other action on the part of Mortgagor.
Mortgagor represents that Mortgagor has obtained all consents and
approvals required in connection with the execution, delivery and
performance of this Mortgage;
3.3 Other Representations and Warranties. Mortgagor
represents and warrants to Mortgagee as follows:
(a) Mortgagor is a limited partnership, duly
organized, validly existing and in good standing under the laws
of the State of Delaware. The sole General Partner of Mortgagor
is Mark Centers Trust, a Maryland business trust. The Mark
Centers Trust is duly organized, validly existing, and in good
standing under the laws of the Commonwealth of Pennsylvania;
(b) This Mortgage is, and each other Loan Document to
which Mortgagor or Surety is a party will, when delivered
hereunder, be valid and binding obligations of Mortgagor and
Surety enforceable against Mortgagor and Surety in accordance
with their respective terms, except as limited by equitable
principles and bankruptcy, insolvency and similar laws affecting
creditors' rights;
(c) The execution, delivery and performance by
Mortgagor and Surety of the Loan Documents will not contravene
any contractual or other restriction binding on or affecting
Mortgagor, any General Partner, or any Surety, and will not
result in or require the creation of any lien, security interest,
other charge or encumbrance (other than pursuant hereto) upon or
with respect to any of its properties;
(d) The execution, delivery and performance by
Mortgagor and Surety of the Loan Documents does not contravene
any applicable law;
(e) No authorization, approval, consent or other
action by, and no notice to or filing with, any court,
governmental authority or regulatory body is required for the due
execution, delivery and performance by Mortgagor and Surety of
any of the Loan Documents or the effectiveness of any assignment
of any of Mortgagor's rights and interests of any kind to
Mortgagee;
(f) No part of the Property, Chattels, or Intangible
Personalty is in the hands of a receiver, no application for a
receiver is pending with respect to any portion of the Property,
Chattels, or Intangible Personalty and no part of the Property,
Chattels, or Intangible Personalty is subject to any foreclosure
or similar proceeding;
(g) Neither Mortgagor, any General Partner nor any
Surety has made an assignment for the benefit of creditors, nor
has Mortgagor, any General Partner or any Surety filed, or had
filed against it, any petition in bankruptcy;
(h) There is no pending or, to the best of Mortgagor's
knowledge, threatened, litigation, action, proceeding or
investigation, including, without limitation, any condemnation
proceeding, against Mortgagor, any General Partner, any Surety or
the Property before any court, governmental or quasi-
governmental, arbitrator or other authority;
(i) Mortgagor is a "non-foreign person" within the
meaning of Sections 1445 and 7701 of the United States Internal
Revenue Code of 1986, as amended, and the regulations issued
thereunder;
(j) Access to and egress from the Property are
available and provided by public streets, and Mortgagor has no
knowledge of any federal, state, county, municipal or other
governmental plans to change the highway or road system in the
vicinity of the Property or to restrict or change access from any
such highway or road to the Property;
(k) All public utility services necessary for the
operation of all improvements constituting part of the Property
for their intended purposes are available at the boundaries of
the land constituting part of the Property, including water
supply, storm and sanitary sewer facilities, and natural gas,
electric, telephone and cable television facilities;
(l) The Property is located in a zoning district
designated B-2 by Pittston township, Pennsylvania. Such
designation permits the development, use and operation of the
Property as it is currently operated as a permitted, and not as a
non-conforming use. The Property complies in all respects with
all requirements, conditions and restrictions, including but not
limited to deed restrictions and restrictive covenants,
applicable to the Property;
(m) There are no special or other assessments for
public improvements or otherwise now affecting the Property, nor
does Mortgagor know of any pending or threatened special
assessments affecting the Property or any contemplated
improvements affecting the Property that may result in special
assessments. There are no tax abatements or exceptions affecting
the Property;
(n) Mortgagor, each General Partner and each Surety
have filed all tax returns which are required to be filed by
them, and have paid all taxes as shown on such returns or on any
assessment received pertaining to the Property;
(o) Mortgagor has not received any notice from any
governmental body having jurisdiction over the Property as to any
violation of any applicable law, or any notice from any insurance
company or inspection or rating bureau setting forth any
requirements as a condition to the continuation of any insurance
coverage on or with respect to the Property or the continuation
thereof at premium rates existing at present which have not been
remedied or satisfied;
(p) Neither Mortgagor, any General Partner nor any
Surety is in default, in any manner which would have a material
adverse affect on Mortgagor (financial or otherwise) or the
Property, in the performance, observance or fulfillment of any of
the obligations, covenants or conditions set forth in any
agreement or instrument to which it is a party or by which it or
any of its properties, assets or revenues are bound;
(q) Except as set forth in the Lease Certificate,
there are no occupancy rights (written or oral), leases or
tenancies presently affecting any part of the Property. The
Lease Certificate contains a true and correct description of all
Leases presently affecting the Property. No written or oral
agreements or understandings exist between Mortgagor and the
tenants under the Leases described in the Lease Certificate that
grant such tenants any rights greater than those described in the
Lease Certificate or that are in any way inconsistent with the
rights described in the Lease Certificate;
(r) There are no options, purchase contracts or other
similar agreements of any type (written or oral) presently
affecting any part of the Property;
(s) There exists no brokerage agreement with respect
to any part of the Property;
(t) Except as otherwise disclosed to Mortgagee in
writing prior to the date hereof, (i) there are no contracts
presently affecting the Property ("Contracts") having a term in
excess of one hundred eighty (180) days or not terminable by
Mortgagor (without penalty) on thirty (30) days' notice;
(ii) Mortgagor has heretofore delivered to Mortgagee true and
correct copies of each of the Contracts together with all
amendments thereto; (iii) Mortgagor is not in default of any
obligations under any of the Contracts; and (iv) the Contracts
represent the complete agreement between Mortgagor and such other
parties as to the services to be performed or materials to be
provided thereunder and the compensation to be paid for such
services or materials, as applicable, and except as otherwise
disclosed herein, such other parties possess no unsatisfied
claims against Mortgagor. Mortgagor is not in default under any
of the Contracts and no event has occurred which, with the
passing of time or the giving of notice, or both, would
constitute a default under any of the Contracts;
(u) Mortgagor has obtained all Permits necessary or
desirable for the operation, use, ownership, development,
occupancy and maintenance of the Property as a retail center.
None of the Permits has been suspended or revoked, and all of the
Permits are in full force and effect, are fully paid for, and
Mortgagor has made or will make application for renewals of any
of the Permits prior to the expiration thereof;
(v) All insurance policies held by Mortgagor relating
to or affecting the Property are in full force and effect and
shall remain in full force and effect until all Secured
Obligations are satisfied. Mortgagor has not received any notice
of default or notice terminating or threatening to terminate any
such insurance policies. Mortgagor has made or will make
application for renewals of any of the insurance policies prior
to the expiration thereof;
(w) Mortgagor currently complies with ERISA. Neither
the making of the loan evidenced by the Note and secured by this
Mortgage nor the exercise by Mortgagee of any of its rights under
the Loan Documents constitutes or will constitute a non-exempt
prohibited transaction under ERISA; and
(x) Neither the Property nor any of the Leases is
subject to any rent control statute, rule, regulation or
ordinance.
3.4 Continuing Effect. Mortgagor shall be liable to
Mortgagee for any damage suffered by Mortgagee if any of the
foregoing representations are inaccurate as of the date hereof,
regardless of when such inaccuracy may be discovered by, or
result in harm to, Mortgagee. Mortgagor further represents and
warrants that the foregoing representations and warranties, as
well as all other representations and warranties of Mortgagor to
Mortgagee relative to the Loan Documents, shall remain true and
correct during the term of the Note and shall survive termination
of this Mortgage.
ARTICLE IV
MORTGAGOR'S AFFIRMATIVE COVENANTS
4.1 Payment of Note. Mortgagor will pay all
principal, interest, and other sums payable under the Note, on
the date when such payments are due, without notice or demand,
unless otherwise provided in the Note.
4.2 Performance of Other Obligations. Mortgagor will
promptly and strictly perform and comply with all other
covenants, conditions, and prohibitions required of Mortgagor by
the terms of the Loan Documents.
4.3 Other Encumbrances. Mortgagor will promptly and
strictly perform and comply with all covenants, conditions, and
prohibitions required of Mortgagor in connection with any other
encumbrance affecting the Property, the Chattels, or the
Intangible Personalty, or any part thereof, or any interest
therein, regardless of whether such other encumbrance is superior
or subordinate to the lien hereof.
4.4 Payment of Taxes.
(a) Property Taxes. Mortgagor will pay, before
delinquency and prior to the imposition of any late payment
charge or penalty, all taxes and assessments, general or special,
which may be levied or imposed at any time against Mortgagor's
interest and estate in the Property, the Chattels, or the
Intangible Personalty. Within ten days after each payment of any
such tax or assessment, Mortgagor will deliver to Mortgagee,
without notice or demand, an official receipt for such payment.
At Mortgagee's option, Mortgagee may retain the services of a
firm to monitor the payment of all taxes and assessments relating
to the Property, the cost of which shall be borne by Mortgagor.
(b) Deposit for Taxes. On or before the date hereof,
Mortgagor shall deposit with Mortgagee an amount equal to 1/12th
of the amount which Mortgagee estimates will be required to make
the next annual payment of taxes, assessments, and similar
governmental charges referred to in this Section, multiplied by
the number of whole or partial months that have elapsed since the
date one month prior to the most recent due date for such taxes,
assessments and similar governmental charges. Thereafter, with
each monthly payment under the Note, Mortgagor shall deposit with
Mortgagee an amount equal to 1/12th of the amount which Mortgagee
estimates will be required to pay the next annual payment of
taxes, assessments, and similar governmental charges referred to
in this Section. The purpose of these provisions is to provide
Mortgagee with sufficient funds on hand to pay all such taxes,
assessments, and other governmental charges thirty (30) days
before the date on which they become past due. If the Mortgagee,
in its sole discretion, determines that the funds escrowed
hereunder are, or will be, insufficient, Mortgagor shall upon
demand pay such additional sums as Mortgagee shall determine
necessary and shall pay any increased monthly charges requested
by Mortgagee. Provided no Default or Event of Default exists
hereunder, Mortgagee will apply the amounts so deposited to the
payment of such taxes, assessments, and other charges when due,
but in no event will Mortgagee be liable for any interest on any
amount so deposited, and any amount so deposited may be held and
commingled with Mortgagee's own funds.
(c) Intangible Taxes. If by reason of any statutory
or constitutional amendment or judicial decision adopted or
rendered after the date hereof, any tax, assessment, or similar
charge is imposed against the Note, Mortgagee, or any interest of
Mortgagee in any real or personal property encumbered hereby,
Mortgagor will pay such tax, assessment, or other charge before
delinquency and will indemnify Mortgagee against all loss,
expense, or diminution of income in connection therewith. In the
event Mortgagor is unable to do so, either for economic reasons
or because the legal provisions or decisions creating such tax,
assessment or charge forbid Mortgagor from doing so, then the
Note will, at Mortgagee's option, become due and payable in full
upon thirty (30) days' notice to Mortgagor.
(d) Right to Contest. Notwithstanding any other
provision of this Section, Mortgagor will not be deemed to be in
default solely by reason of Mortgagor's failure to pay any tax,
assessment or similar governmental charge so long as, in
Mortgagee's judgment, each of the following conditions is
satisfied:
(i) Mortgagor is engaged in and diligently pursuing
in good faith administrative or judicial proceedings appropriate
to contest the validity or amount of such tax, assessment, or
charge; and
(ii) Mortgagor's payment of such tax, assessment, or
charge would necessarily and materially prejudice Mortgagor's
prospects for success in such proceedings; and
(iii) Nonpayment of such tax, assessment, or charge
will not result in the loss or forfeiture of any property
encumbered hereby or any interest of Mortgagee therein; and
(iv) Mortgagor deposits with Mortgagee, as security
for such payment which may ultimately be required, a sum equal to
the amount of the disputed tax, assessment or charge plus the
interest, penalties, advertising charges, and other costs which
Mortgagee estimates are likely to become payable if Mortgagor's
contest is unsuccessful.
If Mortgagee determines that any one or more of such conditions
is not satisfied or is no longer satisfied, Mortgagor will pay
the tax, assessment, or charge in question, together with any
interest and penalties thereon, within ten (10) days after
Mortgagee gives notice of such determination.
4.5 Maintenance of Insurance.
(a) Coverages Required. Mortgagor shall maintain or
cause to be maintained, with financially sound and reputable
insurance companies or associations, insurance which insures the
Property against (i) all risk of loss, damage, destruction,
theft, or any other casualty or risk, covering the Property
including all of Mortgagor's personal property located therein,
without deduction for depreciation, in an amount approved by
Mortgagee, but in no event less than the full replacement cost
thereof, and builder's risk insurance throughout the period of
any construction of any improvements on the Property, (ii) use
and occupancy insurance covering either rental income or business
interruption with coverage in an amount not less than twelve
months' anticipated gross rental income, (iii) comprehensive
general liability insurance covering the Property and Mortgagor,
in an amount not less than $1,000,000.00 for bodily injury and/or
property damage liability per occurrence and $2,000,000.00 in the
aggregate or such higher amounts as Mortgagee may reasonably
require, and (iv) worker's compensation insurance in accordance
with the requirements of applicable law, which policies of
insurance maintained pursuant to this Section shall provide
standard mortgagee endorsements or clauses naming Mortgagee as
mortgagee and as loss payee (with respect to property insurance)
or additional insured (with respect to liability insurance).
Each policy of insurance required hereunder shall provide that it
shall not be modified or cancelled without at least thirty (30)
days prior written notice to Mortgagee. The original or a
certified copy of each insurance policy shall be delivered to
Mortgagee, and such delivery will constitute an assignment to
Mortgagee, as further security for the Secured Obligations, of
all unearned premiums returnable upon cancellation of any such
policy. Mortgagor shall also maintain, at the request of
Mortgagee, such hazard insurance, in addition to the insurance
required above, as Mortgagee may reasonably request and as shall
be available, including but not limited to flood, including
surface waters, and earthquake, including subsidence, all of such
insurance to comply in all respects with the requirements of this
Section. Coverage under a commercial blanket insurance policy
will be deemed to comply with the requirements of this Section,
if such blanket policy provides coverage that is equivalent, in
the reasonable judgment of Mortgagee, to the coverage that would
be provided by insurance policies otherwise required under this
Section.
(b) Renewal Policies. Not less than thirty (30) days
prior to the expiration date of each insurance policy required
pursuant to subsection 4.5(a) above, Mortgagor will deliver to
Mortgagee an appropriate renewal policy (or a certified copy
thereof), together with evidence satisfactory to Mortgagee that
the applicable premium has been prepaid.
(c) Deposit for Premiums. Upon demand by Mortgagee
following a Default or Event of Default, Mortgagor shall deposit
with Mortgagee an amount equal to 1/12th of the amount which
Mortgagee estimates will be required to make the next annual
payments of the premiums for the policies of insurance referred
to in this Section, multiplied by the number of whole and partial
months which have elapsed since the date one month prior to the
most recent policy anniversary date for each such policy.
Thereafter, with each monthly payment under the Note, Mortgagor
will deposit an amount equal to 1/12th of the amount which
Mortgagee estimates will be required to pay the next required
annual premium for each insurance policy referred to in this
Section. The purpose of these provisions is to provide Mortgagee
with sufficient funds on hand to pay all such premiums thirty
(30) days before the date on which they become past due. If the
Mortgagee, in its sole discretion, determines that the funds
escrowed hereunder are, or will be, insufficient, Mortgagor shall
upon demand pay such additional sums as Mortgagee shall determine
necessary and shall pay any increased monthly charges requested
by Mortgagee. Provided no Default or Event of Default exists
hereunder, Mortgagee will apply the amounts so deposited to the
payment of such insurance premiums when due, but in no event will
Mortgagee be liable for any interest on any amounts so deposited,
and the money so received may be held and commingled with
Mortgagee's own funds.
(d) Application of Hazard Insurance Proceeds.
Mortgagor shall promptly notify Mortgagee of any damage or
casualty to all or any portion of the Property or Chattels.
Mortgagee may participate in all negotiations and appear and
participate in all judicial arbitration proceedings concerning
any insurance proceeds which may be payable as a result of such
casualty or damage, and, if an Event of Default has occurred or
is continuing, may, in Mortgagee's sole discretion, compromise or
settle, in the name of Mortgagee, Mortgagor, or both any claim
for any such insurance proceeds. Any such insurance proceeds
shall be paid to Mortgagee and shall be applied first to
reimburse Mortgagee for all costs and expenses, including
attorneys' fees, incurred by Mortgagee in connection with the
collection of such insurance proceeds. The balance of any
insurance proceeds received by Mortgagee with respect to an
insured casualty may, in Mortgagee's sole discretion, either
(i) be retained and applied by Mortgagee toward payment of the
Secured Obligations, or (ii) be paid over, in whole or in part
and subject to such conditions as Mortgagee may impose, to
Mortgagor to pay for repairs or replacements necessitated by the
casualty; provided, however, that if all of the Secured
Obligations have been performed or are discharged by the
application of less than all of such insurance proceeds, then any
remaining proceeds will be paid over to Mortgagor.
Notwithstanding the preceding sentence, if (A) no Default or
Event of Default shall exist hereunder, and (B) the proceeds
received by Mortgagee (together with any other funds delivered by
Mortgagor to Mortgagee for such purpose) shall be sufficient, in
Mortgagee's reasonable judgment, to pay for any restoration
necessitated by the casualty, and (C) the cost of such
restoration shall not exceed $400,000.00, and (D) such
restoration can be completed, in Mortgagee's judgment, at least
ninety (90) days prior to the maturity date of the Note, then
Mortgagee shall apply such proceeds as provided in clause (ii) of
the preceding sentence. Mortgagee will have no obligation to see
to the proper application of any insurance proceeds paid over to
Mortgagor, nor will any such proceeds received by Mortgagee bear
interest or be subject to any other charge for the benefit of
Mortgagor. Mortgagee may, prior to the application of insurance
proceeds, commingle them with Mortgagee's own funds and otherwise
act with regard to such proceeds as Mortgagee may determine in
Mortgagee's sole discretion.
(e) Successor's Rights. Any person who acquires
title to the Property or the Chattels upon foreclosure hereunder
will succeed to all of Mortgagor's rights under all policies of
insurance maintained pursuant to this Section.
(f) Blanket Policy. The insurance coverage required
under Section 4.5(a) may be effected under a blanket policy or
policies covering the Trust Estate and other properties and
assets not constituting a part of the Trust Estate; provided that
any such blanket policy shall specify, except in the case of
public liability insurance, the portion of the total coverage of
such policy that is allocated to the Trust Estate, and any
sublimits in such blanket policy applicable to the Trust Estate,
which amounts shall not be less than the amounts required
pursuant to Section 4.5(a) and which shall in any case comply in
all other respects with the requirements of this Section 4.5.
4.6 Maintenance and Repair of Property and Chattels.
Mortgagor will at all times maintain the Property and the
Chattels in good condition and repair, will diligently prosecute
the completion of any building or other improvement which is at
any time in the process of construction on the Property, and will
promptly repair, restore, replace, or rebuild any part of the
Property or the Chattels which may be affected by any casualty or
any public or private taking or injury to the Property or the
Chattels. All costs and expenses arising out of the foregoing
shall be paid by Mortgagor whether or not the proceeds of any
insurance or eminent domain shall be sufficient therefor.
Mortgagor will comply with all statutes, ordinances, and other
governmental or quasi-governmental requirements and private
covenants relating to the ownership, construction, use, or
operation of the Property, including but not limited to any
environmental or ecological requirements; provided, that so long
as Mortgagor is not otherwise in default hereunder, Mortgagor
may, upon providing Mortgagee with security reasonably
satisfactory to Mortgagee, proceed diligently and in good faith
to contest the validity or applicability of any such statute,
ordinance, or requirement. Mortgagee and any person authorized
by Mortgagee may enter and inspect the Property at all reasonable
times, and may inspect the Chattels, wherever located, at all
reasonable times.
4.7 Leases. Mortgagor shall timely pay and perform
each of its obligations under or in connection with the Leases,
and shall otherwise pay such sums and take such action as shall
be necessary or required in order to maintain each of the Leases
in full force and effect in accordance with its terms. Mortgagor
shall immediately furnish to Mortgagee copies of any notices
given to Mortgagor by the lessee under any Lease, alleging the
default by Mortgagor in the timely payment or performance of its
obligations under such Lease and any subsequent communication
related thereto. Mortgagor shall also promptly furnish to
Mortgagee copies of any notices given to Mortgagor by the lessee
under any Lease, extending the term of any Lease, requiring or
demanding the expenditure of any sum by Mortgagor (or demanding
the taking of any action by Mortgagor), or relating to any other
material obligation of Mortgagor under such Lease and any
subsequent communication related thereto. Mortgagor agrees that
Mortgagee, in its sole discretion, may advance any sum or take
any action which Mortgagee believes is necessary or required to
maintain the Leases in full force and effect, and all such sums
advanced by Mortgagee, together with all costs and expenses
incurred by Mortgagee in connection with action taken by
Mortgagee pursuant to this Section, shall be due and payable by
Mortgagor to Mortgagee upon demand, shall bear interest until
paid at the Default Rate (as defined in the Note), and shall be
secured by this Mortgage.
4.8 Eminent Domain; Private Damage. If all or any
part of the Property is taken or damaged by eminent domain or any
other public or private action, Mortgagor will notify Mortgagee
promptly of the time and place of all meetings, hearings, trials,
and other proceedings relating to such action. Mortgagee may
participate in all negotiations and appear and participate in all
judicial or arbitration proceedings concerning any award or
payment which may be due as a result of such taking or damage,
and, if an Event of Default has occurred or is continuing, may,
in Mortgagee's reasonable discretion, compromise or settle, in
the names of both Mortgagor and Mortgagee, any claim for any such
award or payment. Any such award or payment is to be paid to
Mortgagee and will be applied first to reimburse Mortgagee for
all costs and expenses, including attorneys' fees, incurred by
Mortgagee in connection with the ascertainment and collection of
such award or payment. The balance, if any, of such award or
payment may, in Mortgagee's sole discretion, either (a) be
retained by Mortgagee and applied toward the Secured Obligations,
or (b) be paid over, in whole or in part and subject to such
conditions as Mortgagee may impose, to Mortgagor for the purpose
of restoring, repairing, or rebuilding any part of the Property
affected by the taking or damage. Notwithstanding the preceding
sentence, if (i) no Default or Event of Default shall have
occurred and be continuing hereunder, and (ii) the proceeds
received by Mortgagee (together with any other funds delivered by
Mortgagor to Mortgagee for such purpose) shall be sufficient, in
Mortgagee's reasonable judgment, to pay for any restoration
necessitated by the taking or damage, and (iii) the cost of such
restoration shall not exceed $400,000.00, and (iv) such
restoration can be completed, in Mortgagee's judgment, at least
ninety (90) days prior to the maturity date of the Note, and
(v) the remaining Property shall constitute, in Mortgagee's sole
judgment, adequate security for the Secured Obligations, then
Mortgagee shall apply such proceeds as provided in clause (b) of
the preceding sentence. Mortgagor's duty to pay the Note in
accordance with its terms and to perform the other Secured
Obligations will not be suspended by the pendency or discharged
by the conclusion of any proceedings for the collection of any
such award or payment, and any reduction in the Secured
Obligations resulting from Mortgagee's application of any such
award or payment will take effect only when Mortgagee receives
such award or payment. If this Mortgage has been foreclosed
prior to Mortgagee's receipt of such award or payment, Mortgagee
may nonetheless retain such award or payment to the extent
required to reimburse Mortgagee for all costs and expenses,
including attorneys' fees, incurred in connection therewith, and
to discharge any deficiency remaining with respect to the Secured
Obligations.
4.9 Mechanics' Liens. Mortgagor will keep the
Property free and clear of all liens and claims of liens by
contractors, subcontractors, mechanics, laborers, materialmen,
and other such persons, and will cause any recorded statement of
any such lien to be released of record within thirty (30) days
after the recording thereof. Notwithstanding the preceding
sentence, however, Mortgagor will not be deemed to be in default
under this Section if and so long as Mortgagor (a) contests in
good faith the validity or amount of any asserted lien and
diligently prosecutes or defends an action appropriate to obtain
a binding determination of the disputed matter, (b) provides
Mortgagee with such security as Mortgagee may require to protect
Mortgagee against all loss, damage, and expense, including
attorneys' fees, which Mortgagee might incur if the asserted lien
is determined to be valid.
4.10 Defense of Actions. Mortgagor will defend, at
Mortgagor's expense, any action, proceeding or claim which
affects any property encumbered hereby or any interest of
Mortgagee in such property or in the Secured Obligations, and
will indemnify and hold Mortgagee harmless from all loss, damage,
cost, or expense, including attorneys' fees, which Mortgagee may
incur in connection therewith.
4.11 Expenses of Enforcement. Mortgagor will pay all
costs and expenses, including attorneys' fees, which Mortgagee
may incur in connection with any effort or action (whether or not
litigation or foreclosure is involved) to enforce or defend
Mortgagee's rights and remedies under any of the Loan Documents,
including but not limited to all attorneys' fees, appraisal fees,
consultants' fees, and other expenses incurred by Mortgagee in
securing title to or possession of, and realizing upon, any
security for the Secured Obligations. All such costs and
expenses (together with interest thereon at the Default Rate from
the date incurred) shall constitute part of the Secured
Obligations, and may be included in the computation of the amount
owed to Mortgagee for purposes of foreclosing or otherwise
enforcing this Mortgage.
4.12 Financial Reports. Within one hundred and twenty
(120) days after the end of each fiscal year of Mortgagor,
Mortgagor will furnish to Mortgagee (a) Mortgagor's operating
statements for the Property as of the end of and for the
preceding fiscal year, prepared against the budget for such year;
(b) an annual certified rent roll signed and dated by Mortgagor
detailing the names of all tenants under the Leases, the portion
of the improvements on the Property occupied by each tenant, the
rent and any other charges payable under each Lease and the term
of each Lease; and (c) an annual balance sheet and profit and
loss statement of Mortgagor and of each Surety. The financial
statements and reports described in (a) and (c) above shall be in
such detail as Mortgagee may require, shall be prepared in
accordance with generally accepted accounting principles
consistently applied, and shall be certified as true and correct
by Mortgagor or the applicable Surety (or, if required by
Mortgagee, such operating statements, balance sheets, and profit
and loss statements shall be certified by an independent
certified public accountant acceptable to Mortgagee). Mortgagor
will also furnish or cause to be furnished to Mortgagee within
thirty (30) days of Mortgagee's request, any other financial
reports or statements of Mortgagor, including, without
limitation, balance sheets, profit and loss statements, other
financial statements, and certified rent rolls, required under
any of the Loan Documents, requested by any regulatory or
governmental authority exercising jurisdiction over Mortgagee, or
reasonably requested by Mortgagee from time to time.
4.13 Priority of Leases. To the extent Mortgagor has
the right, under the terms of any Lease, to make such lease
subordinate to the lien hereof, Mortgagor will, at Mortgagee's
request and Mortgagor's expense, take such action as may be
required to effect such subordination. Conversely, Mortgagor
will, at Mortgagee's request and Mortgagor's expense, take such
action as may be necessary to subordinate the lien hereof to any
future Lease designated by Mortgagee.
4.14 Inventories; Assembly of Chattels. Mortgagor
will, from time to time at the request of Mortgagee, supply
Mortgagee with a current inventory of the Chattels and the
Intangible Personalty, in such detail as Mortgagee may require.
Upon the occurrence of any Event of Default hereunder, Mortgagor
will at Mortgagee's request assemble the Chattels and make them
available to Mortgagee at any place designated by Mortgagee which
is reasonably convenient to both parties.
4.15 Compliance with Laws, Etc. Mortgagor shall
comply in all material respects with all applicable laws, rules,
regulations and orders, such compliance to include, without
limitation, maintaining all Permits and paying before the same
become delinquent all taxes, assessments and governmental charges
imposed upon Mortgagor or the Property.
4.16 Records and Books of Account. Mortgagor shall
keep accurate and complete records and books of account, in which
complete entries will be made in accordance with generally
accepted accounting principles consistently applied, reflecting
all financial transactions relating to the Property.
4.17 Inspection Rights. At any reasonable time, and
from time to time, Mortgagor shall permit Mortgagee, or any
agents or representatives thereof, to examine and make copies of
and abstracts from the records and books of account of, and visit
and inspect the Property and to discuss with Mortgagor the
affairs, finances and accounts of Mortgagor.
4.18 Change of Executive Offices. Mortgagor shall
promptly notify Mortgagee if changes are made in the location of
Mortgagor's primary executive offices.
4.19 Further Assurances; Estoppel Certificates.
Mortgagor will execute and deliver to Mortgagee upon demand, and
pay the costs of preparation and recording thereof, any further
documents which Mortgagee may request to confirm or perfect the
liens and security interests created or intended to be created
hereby, or to confirm or perfect any evidence of the Secured
Obligations. Mortgagor will also, within ten (10) days after any
request by Mortgagee, deliver to Mortgagee a signed and
acknowledged statement certifying to Mortgagee, or to any
proposed transferee of the Secured Obligations, (a) the balance
of principal, interest, and other sums then outstanding under the
Note, and (b) whether Mortgagor claims to have any offsets or
defenses with respect to the Secured Obligations and, if so, the
nature of such offsets or defenses.
4.20 Costs of Closing. Mortgagor shall on demand pay
directly or reimburse Mortgagee for any costs or expenses
pertaining to the closing of the loan evidenced by the Note and
secured by this Mortgage, including, but not limited to, fees of
counsel for Mortgagee, costs and expenses for which invoices were
not available at the closing of such loan, or costs and expenses
which are incurred by Mortgagee after such closing. All such
costs and expenses (together with interest thereon at the Default
Rate from the date incurred by Mortgagee) shall constitute a part
of the Secured Obligations, and may be included in the
computation of the amount owed to Mortgagee for purposes of
foreclosing or otherwise enforcing this Mortgage.
4.21 Use. Mortgagor shall use the Property solely for
the operation of a retail center and for no other use or purpose.
4.22 Actions by Mortgagee. If Mortgagor shall fail to
make any payment or perform any covenant as and in the manner
provided in any of the Loan Documents, Mortgagee, in its sole
discretion, without obligation to do so and without notice to or
demand upon Mortgagor and without releasing Mortgagor from any
obligation, may make or perform the same in such manner and to
such extent as it may deem necessary to protect the security
hereof. Mortgagee shall be permitted to pay all reasonable
expenses incurred in connection therewith, including, without
limitation, employment of counsel and other consultants,
engineers, contractors, appraisers, surveyors and other
professionals. Mortgagor shall, upon demand by Mortgagee, pay
all reasonable costs and expenses incurred by Mortgagee in
connection with the exercise by Mortgagee of the foregoing
rights, together with interest thereon at the Default Rate from
the date incurred by Mortgagee.
4.23 Management. The Property shall be managed by
Mortgagor.
ARTICLE V
MORTGAGOR'S NEGATIVE COVENANTS
5.1 Waste and Alterations. Mortgagor will not commit
or permit any waste with respect to the Property or the Chattels.
Mortgagor shall not cause or permit any part of the Property,
including but not limited to any building, structure, parking
lot, driveway, landscape scheme, timber, or other ground
improvement, to be removed, demolished, or materially altered
without the prior written consent of Mortgagee.
5.2 Zoning and Private Covenants. Mortgagor will not
initiate, join in, or consent to any change in any zoning
ordinance or classification, any change in the "zone lot" or
"zone lots" (or similar zoning unit or units) presently
comprising the Property, any transfer of development rights, any
private restrictive covenant, or any other public or private
restriction limiting or defining the uses which may be made of
the Property or any part thereof, without the express written
consent of Mortgagee. If under applicable zoning provisions the
use of all or any part of the Property is or becomes a
nonconforming use, Mortgagor will not cause such use to be
discontinued or abandoned without the express written consent of
Mortgagee, and Mortgagor will use its best efforts to prevent the
tenant under any Lease from discontinuing or abandoning such use.
5.3 Interference with Leases. Mortgagor will neither
do nor neglect to do anything which may cause or permit the
termination of any Lease, or cause or permit the withholding or
abatement of any rent payable under any Lease. Except with the
prior written consent of Mortgagee, which may be granted or
withheld in Mortgagee's sole discretion, Mortgagor will not
(a) collect rent from all or any part of the Property for more
than one month in advance, (b) assign the rents from the Property
or any part thereof, or (c) consent to the cancellation or
surrender of all or any part of any such Lease, except that
Mortgagor may in good faith terminate any Lease for nonpayment of
rent or other material breach by the tenant. Without Mortgagee's
prior written consent, Mortgagor shall not enter into or modify
any Lease if such Lease or modification covers more than 2,500
square feet.
5.4 Transfer or Further Encumbrance of Property.
Without the prior written consent of Mortgagee, which may be
withheld for any reason, Mortgagor will not sell, lease, convey,
assign, or otherwise transfer, dispose of, or be divested of its
title to, or mortgage, convey security title to, or otherwise
encumber or cause to be encumbered, the Property or any part
thereof or interest therein in any manner or way, whether
voluntary or involuntary, or cause or permit to occur any of the
following: (a) any merger, consolidation or dissolution
involving the sale or transfer of the Property; (b) the transfer
of any interest in any Mortgagor, or in any partnership which is
a direct or indirect General Partner of any Mortgagor, which
transfer constitutes a transfer of any General Partnership
interest in Mortgagor; or (c) the conversion of any such general
partnership interest to a limited partnership interest. Upon the
occurrence of any such transfer, encumbrance, or other event, the
entire balance of the Note, plus any applicable prepayment
premium, shall become immediately due and payable at the option
of Mortgagee. Consent to one such transfer or encumbrance by
Mortgagee shall not be deemed a waiver to require such consent to
further or future transfers or encumbrances. This provision
shall not apply to transfers of title or interest under any will
or testament or applicable law of descent.
5.5 Further Encumbrance of Chattels. Mortgagor will
neither create nor permit any lien, security interest or
encumbrance against the Chattels or Intangible Personalty or any
part thereof or interest therein, other than the liens and
security interests created by the Loan Documents, without the
prior written consent of Mortgagee, which may be withheld for any
reason.
5.6 Assessments Against Property. Mortgagor will
not, without the prior written approval of Mortgagee, which may
be withheld for any reason, consent to or allow the creation of
any so-called special districts, special improvement districts,
benefit assessment districts or similar districts, or any other
body or entity of any type, or allow to occur any other event,
that would or might result in the imposition of any additional
taxes, assessments or other monetary obligations or burdens on
the Property, and this provision shall serve as RECORD NOTICE to
any such district or districts or any governmental entity under
whose authority such district or districts exist or are being
formed that, should Mortgagor or any other person or entity
include all or any portion of the Property in such district or
districts, whether formed or in the process of formation, without
first obtaining Mortgagee's express written consent, the rights
of Mortgagee in the Property pursuant to this Mortgage or
following any foreclosure of this Mortgage, and the rights of any
person or entity to whom Mortgagee might transfer the Property
following a foreclosure of this Mortgage, shall be senior and
superior to any taxes, charges, fees, assessments or other
impositions of any kind or nature whatsoever, or liens (whether
statutory, contractual or otherwise) levied or imposed, or to be
levied or imposed, upon the Property or any portion thereof as a
result of inclusion of the Property in such district or
districts.
5.7 Transfer or Removal of Chattels. Mortgagor will
not sell, transfer or remove from the Property all or any part of
the Chattels, unless the items sold, transferred, or removed are
simultaneously replaced with similar items of equal or greater
value.
5.8 Change of Name. Mortgagor will not change the
name under which Mortgagor does business, or adopt or begin doing
business under any other name or assumed or trade name, without
first notifying Mortgagee of Mortgagor's intention to do so and
delivering to Mortgagee such executed modifications or
supplements to this Mortgage (and to any financing statement
which may be filed in connection herewith) as Mortgagee may
require.
5.9 Improper Use of Property or Chattels. Mortgagor
will not use the Property or the Chattels for any purpose or in
any manner which violates any applicable law, ordinance, or other
governmental requirement, the requirements or conditions of any
insurance policy, or any private covenant.
5.10 ERISA. Mortgagor shall not engage in any
transaction which would cause the Note (or the exercise by
Mortgagee of any of its rights under the Loan Documents) to be a
non-exempt, prohibited transaction under ERISA (including for
this purpose the parallel provisions of Section 4975 of the
Internal Revenue Code of 1986, as amended), or otherwise result
in Mortgagee being deemed in violation of any applicable
provisions of ERISA. Mortgagor shall indemnify, protect, defend,
and hold Mortgagee harmless from and against any and all losses,
liabilities, damages, claims, judgments, costs, and expenses
(including, without limitation attorneys' fees and costs incurred
in the investigation, defense, and settlement of claims and in
obtaining any individual ERISA exemption or state administrative
exception that may be required, in Mortgagee's sole and absolute
discretion) that Mortgagee may incur, directly or indirectly, as
the result of the breach by Mortgagor of any warranty or
representation set forth in Section 3.3(w) hereof or the breach
by Mortgagor of any covenant contained in this Section. This
indemnity shall survive any termination, satisfaction or
foreclosure of this Mortgage or execution on the Note and shall
not be subject to the limitation on personal liability described
in Section 9.4 hereof. Notwithstanding Section 9.4 of this
Mortgage, any non recourse provisions of the Note or any other
such provision in any other Loan Document, Mortgagee shall be
entitled to bring a separate action, in addition to any
proceeding to enforce this Mortgage or the Note, against
Mortgagor to enforce any personal obligation and this
indemnification obligation.
5.11 Use of Proceeds. Mortgagor will not use any
funds advanced by Mortgagee under the Loan Documents for consumer
or agricultural purposes, to acquire any margin stock, or for any
purpose other than as permitted by the provisions of the Loan
Documents.
ARTICLE VI
EVENTS OF DEFAULT
Each of the following events will constitute an event of
default(an "Event of Default") under this Mortgage and under each
of the other Loan Documents:
6.1 Failure to Pay Note. Mortgagor's failure to make
any payment when due under the terms of the Note or any other
Loan Document;
6.2 Due on Sale or Encumbrance. The occurrence of
any violation of any covenant contained in Section 5.4, 5.5 or
5.7 hereof;
6.3 Other Obligations. The failure of Mortgagor to
properly perform any obligation contained herein or in any of the
other Loan Documents (other than the obligation to make payments
under the Note or the other Loan Documents) and the continuance
of such failure for a period of ten (10) days following written
notice thereof from Mortgagee to Mortgagor; provided, however,
that if such failure is not curable within such ten (10) day
period, then, so long as Mortgagor commences to cure such failure
within such ten (10) day period and is continually and diligently
attempting to cure to completion, such failure shall not be an
Event of Default unless such failure remains uncured for sixty
(60) days after such written notice to Mortgagor;
6.4 Levy Against Property. The levy against any of
the Property, Chattels, or Intangible Personalty of any
execution, attachment, sequestration or other writ;
6.5 Liquidation. The liquidation, termination or
dissolution of Mortgagor, any General Partner, any Surety, or any
other party directly or indirectly liable for the payment of the
Note, whether as maker, endorser, guarantor, surety, general
partner or otherwise;
6.6 Appointment of Receiver. The appointment of a
trustee, liquidator or receiver for Mortgagor, any General
Partner, or any Surety, or the assets, or any part thereof, of
Mortgagor, any General Partner, any Surety or any other party
directly or indirectly liable for the payment of the Note,
whether as maker, endorser, guarantor, surety or otherwise, or
the appointment of a trustee or receiver for any real or personal
property, or the like, or any part thereof, representing the
security for the Note;
6.7 Assignments. The making by Mortgagor, any
General Partner, any Surety or any other party directly or
indirectly liable for the payment of the Note, whether as maker,
endorser, guarantor, surety, general partner or otherwise, of a
transfer in fraud of creditors or an assignment for the benefit
of creditors;
6.8 Order for Relief. The entry in bankruptcy of an
order for relief for or against Mortgagor, any General Partner,
any Surety or any other party directly or indirectly liable for
the payment of the Note, whether as maker, endorser, guarantor,
surety, general partner or otherwise;
6.9 Bankruptcy. The filing of any petition (or
answer admitting the material allegations of any petition), or
other pleading, seeking entry of an order for relief for or
against Mortgagor, any General Partner, any Surety or any other
party directly or indirectly liable for the payment of the Note,
whether as maker, endorser, guarantor, surety, general partner or
otherwise as a debtor or bankrupt or seeking an adjustment of any
of such parties' debts, or any other relief under any state or
federal bankruptcy, reorganization, debtor's relief or insolvency
laws now or hereafter existing, including, without limitation, a
petition or answer seeking reorganization or admitting the
material allegations of a petition filed against any of such
parties in any bankruptcy or reorganization proceeding, or the
act of any of such parties in instituting or voluntarily being or
becoming a party to any other judicial proceedings intended to
effect a discharge of the debts of any such parties, in whole or
in part, or a postponement of the maturity or the collection
thereof, or a suspension of any of the rights or powers of a
trustee or of any of the rights or powers granted to Mortgagee
herein, or in any other document executed in connection herewith;
6.10 Misrepresentation. If any representation or
warranty made by Mortgagor, any General Partner, any Surety or
any other party directly or indirectly liable for the payment of
the Note, whether as maker, endorser, guarantor, surety, general
partner or otherwise, herein, or in any of the other Loan
Documents or any other instrument or document modifying,
renewing, extending, evidencing, securing or pertaining to the
Note is false, misleading or erroneous in any material respect;
6.11 Judgments. The failure of Mortgagor, any General
Partner, any Surety or any party directly or indirectly liable
for the payment of the Note, whether as maker, endorser,
guarantor, surety, general partner or otherwise, to pay any money
judgment in excess of $10,000.00, against any such party before
the expiration of thirty (30) days after such judgment becomes
final and no longer appealable;
6.12 Admissions Regarding Debts. The admission of
Mortgagor, any General Partner, any Surety or any other party
directly or indirectly liable for the payment of the Note,
whether as maker, endorser, guarantor, surety, general partner or
otherwise, in writing of any such party's inability to pay such
party's debts as they become due;
6.13 Assertion of Priority. The assertion of any
claim of priority over this Mortgage, by title, lien, or
otherwise, unless Mortgagor within thirty (30) days after such
assertion either causes the assertion to be withdrawn or provides
Mortgagee with such security as Mortgagee may require to protect
Mortgagee against all loss, damage, or expense, including
attorneys' fees, which Mortgagee may incur in the event such
assertion is upheld;
6.14 Other Loan Documents. The occurrence of any
default by Mortgagor, after the lapse of any applicable grace or
cure period, or the occurrence of any event or circumstance
defined as a default or an Event of Default, under any of the
Loan Documents other than this Mortgage;
6.15 Other Liens. The occurrence of any default by
Mortgagor, after the lapse of any applicable grace or cure
period, or the occurrence of any event or circumstance defined as
an Event of Default, under any other lien encumbering the
Property, or any part thereof or interest therein, or any
document or instrument evidencing obligations secured thereby; or
6.16 Other Indebtedness. The occurrence of any
default by Mortgagor, after the lapse of any applicable grace or
cure period, or the occurrence of any event or circumstance
defined as an Event of Default, under any other indebtedness
incurred or owing by Mortgagor, or any document or instrument
evidencing any obligation to pay such indebtedness, that has a
material adverse effect on Mortgagor or the Property.
ARTICLE VII
MORTGAGEE'S REMEDIES
Immediately upon or any time after the occurrence of
any Event of Default hereunder, Mortgagee may exercise any remedy
available at law or in equity, including but not limited to those
listed below and those listed in the other Loan Documents, in
such sequence or combination as Mortgagee may determine in
Mortgagee's sole discretion:
7.1 Performance of Defaulted Obligations. Mortgagee
may make any payment or perform any other obligation under the
Loan Documents which Mortgagor has failed to make or perform, and
Mortgagor hereby irrevocably appoints Mortgagee as the true and
lawful attorney-in-fact for Mortgagor to make any such payment
and perform any such obligation in the name of Mortgagor. All
payments made and expenses (including attorneys' fees) incurred
by Mortgagee in this connection, together with interest thereon
at the Default Rate from the date paid or incurred until repaid,
will be part of the Secured Obligations and will be immediately
due and payable by Mortgagor to Mortgagee. In lieu of advancing
Mortgagee's own funds for such purposes, Mortgagee may use any
funds of Mortgagor which may be in Mortgagee's possession,
including but not limited to insurance or condemnation proceeds
and amounts deposited for taxes, insurance premiums, or other
purposes.
7.2 Specific Performance and Injunctive Relief. In
the event of any breach or threatened breach by Mortgagor of any
of the covenants, agreements, terms or conditions contained in
this Mortgage or the Loan Documents, Mortgagee shall be entitled
to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity
or by statute or otherwise as though other remedies were not
provided for in this Mortgage. Without limitation of the
foregoing, Mortgagee will be entitled to obtain specific
performance, mandatory or prohibitory injunctive relief, or other
equitable relief requiring Mortgagor to cure or refrain from
repeating any Default.
7.3 Acceleration of Secured Obligations. Mortgagee
may, without notice or demand, declare all of the Secured
Obligations immediately due and payable in full.
7.4 Suit for Monetary Relief. Subject to the
provisions of Section 9.4 of this Mortgage, with or without
accelerating the maturity of the Secured Obligations, Mortgagee
may sue from time to time for any payment due under any of the
Loan Documents, or for money damages resulting from Mortgagor's
default under any of the Loan Documents.
7.5 Possession of Property. To the extent permitted
by law, Mortgagee, personally or by its agents and attorneys, may
enter and take possession of the Property without seeking or
obtaining the appointment of a receiver, may employ a managing
agent for the Property, and may lease or rent all or any part of
the Property, either in Mortgagee's name or in the name of
Mortgagor, and may collect the rents, issues, and profits of the
Property. Mortgagee may exclude Mortgagor, its agents and
servants from the Property without liability for trespass,
damages or otherwise, and Mortgagor agrees to surrender
possession to Mortgagee on demand. Any revenues collected by
Mortgagee under this Section will be applied first toward payment
of all expenses (including attorneys' fees) incurred by
Mortgagee, together with interest thereon at the Default Rate
from the date incurred until repaid, and the balance, if any,
will be applied against the Secured Obligations in such order and
manner as Mortgagee may elect in its sole discretion.
7.6 Enforcement of Security Interests. Mortgagee may
exercise all rights of a secured party under the Code with
respect to the Chattels and the Intangible Personalty, including
but not limited to taking possession of, holding, and selling the
Chattels and enforcing or otherwise realizing upon any accounts
and general intangibles. Any requirement for reasonable notice
of the time and place of any public sale, or of the time after
which any private sale or other disposition is to be made, will
be satisfied by Mortgagee's giving of such notice to Mortgagor at
least five (5) days prior to the time of any public sale or the
time after which any private sale or other intended disposition
is to be made. Mortgagor, upon demand by Mortgagee, shall
promptly assemble any equipment and fixtures included in the
Collateral and make them available to Mortgagee at a place to be
designated by Mortgagee which shall be reasonably convenient to
Mortgagee and Mortgagor.
7.7 Foreclosure Against Property; Sale of Property.
(a) Mortgagee may bring an action in any court of
competent jurisdiction to foreclose this Mortgage, or take such
other action at law or in equity for the enforcement of this
Mortgage and realization on the Property, Chattels, Intangible
Personalty, or any other security herein or elsewhere provided
for, as the law may allow, and proceed therein to final judgment
and execution for the entire unpaid balance of the Secured
Obligations, including the principal debt, interest at the rate
specified in the Note, all other sums due by Mortgagor in
accordance with the provisions of the Note, all other sums due by
Mortgagor in accordance with the provisions of this Mortgage and
the other Loan Documents, including all sums which may have been
loaned by Mortgagee to Mortgagor after the date of this Mortgage,
and all sums which may have been paid, incurred or advanced by or
on behalf of Mortgagee for taxes, water or sewer rents, charges
or claims, payments on prior liens, insurance or repairs to the
Property, appraiser's fees, outlays for documentary and expert
evidence, stenographer's charges, publication costs, and costs
(which may be estimated as to items to be expended after entry of
judgment) of procuring all such abstracts of title, title
searches and examinations, title insurance policies, and similar
data and assurances with respect to title as Mortgagee may deem
reasonably necessary either to prosecute such suit or to evidence
to bidders at any Sale which may be had pursuant to such judgment
the true condition of the title to or the value of the Property,
all costs of suit, together with interest at the Default Rate on
any judgment obtained by Mortgagee from and after the date of any
sheriff's sale until actual payment is made by the sheriff of the
full amount due Mortgagee, and a reasonable attorney's commission
for collection. Any real estate sold pursuant to any writ of
execution issued on a judgment obtained by virtue of the Note or
this Mortgage, may be sold in one parcel, as an entirety, or in
such parcels, and in such manner or order as Mortgagee, in its
sole discretion may elect. Mortgagee shall have, at its sole
discretion, the option of (i) seeking to collect all of the
Secured Obligations in the foreclosure or execution proceedings,
or (ii) bifurcating the collection of the Secured Obligations and
(a) seeking to collect the non recourse obligations set forth in
Section 9.4 hereof in the foreclosure or execution proceedings,
and (b) seeking to enforce and collect the recourse obligations,
including but not limited to those obligations set forth in
Sections 5.10 and 5.11 hereof, in a separate action. If
Mortgagee seeks to bifurcate the proceedings, the Sale or
recovery in one action will not act as a bar to Mortgagee's right
to recover in the second action or the satisfaction in whole or
in part of any indebtedness due under the second action.
(b) All fees, costs and expenses of any kind incurred
by Mortgagee in connection with foreclosure of this Mortgage,
including, without limitation, the costs of any appraisals of the
Property obtained by Mortgagee, the cost of any title reports or
abstracts, all costs of any receivership for the Property
advanced by Mortgagee, and all attorneys' and consultants' fees
and expenses incurred by Mortgagee, shall constitute a part of
the Secured Obligations and may be included as part of the amount
owing from Mortgagor to Mortgagee at any Sale.
(c) The proceeds of any Sale shall be applied first
to the fees and expenses of the officer conducting the Sale, and
then to the reduction or discharge of the non recourse
obligations set forth in Section 9.4 hereof in such order and
manner as Mortgagee may elect in its sole discretion; then to the
reduction or discharge of the remaining recourse Secured
Obligations in such order and manner as Mortgagee may elect in
its sole discretion. If (i) recovery of all recourse obligations
is not sought by Mortgagee in the foreclosure or execution
proceedings in which the Sale of the Property is held, or (ii)
all recourse liabilities are not satisfied/liquidated at the time
of the Sale, or (iii) the Sale was not by execution or
foreclosure, then any proceeds in excess of a sum equal to (A)
the fees and expenses of the officer conducting the Sale and (B)
the amount of the judgment obtained at the foreclosure or
execution proceedings or the then liquidated Secured Obligations
shall be paid to Mortgagee in trust, to be held for the benefit
of Mortgagor and Mortgagee and to be used for the satisfaction of
all recourse obligations that were not included in the
foreclosure or execution proceedings, or were not included in the
Secured Obligations liquidated and recovered from the Sale.
(d) Nothing in this Section dealing with foreclosure
procedures or specifying particular actions to be taken by
Mortgagee shall be deemed to contradict or add to the
requirements and procedures now or hereafter specified by
Pennsylvania law, and any such inconsistency shall be resolved in
favor of Pennsylvania law applicable at the time of foreclosure.
7.8 Appointment of Receiver. To the extent permitted
by law, Mortgagee shall be entitled, as a matter of absolute
right and without regard to the value of any security for the
Secured Obligations or the solvency of any person liable
therefor, to the appointment of a receiver for the Property upon
ex-parte application to any court of competent jurisdiction.
Mortgagor waives any right to any hearing or notice of hearing
prior to the appointment of a receiver. Such receiver and its
agents shall be empowered to (a) take possession of the Property
and any businesses conducted by Mortgagor or any other person
thereon and any business assets used in connection therewith,
(b) exclude Mortgagor and Mortgagor's agents, servants, and
employees from the Property, (c) collect the rents, issues,
profits, and income therefrom, (d) complete any construction
which may be in progress, (e) do such maintenance and make such
repairs and alterations as the receiver deems necessary, (f) use
all stores of materials, supplies, and maintenance equipment on
the Property and replace such items at the expense of the
receivership estate, (g) pay all taxes and assessments against
the Property and the Chattels, all premiums for insurance
thereon, all utility and other operating expenses, and all sums
due under any prior or subsequent encumbrance, and (h) generally
do anything which Mortgagor could legally do if Mortgagor were in
possession of the Property. All expenses incurred by the
receiver or its agents shall constitute a part of the Secured
Obligations. Any revenues collected by the receiver shall be
applied first to the expenses of the receivership, including
attorneys' fees incurred by the receiver and by Mortgagee,
together with interest thereon at the Default Rate from the date
incurred until repaid, and the balance shall be applied toward
the Secured Obligations in such order or manner as Mortgagee may
in its sole discretion elect or in such other manner as the court
may direct. Unless sooner terminated with the express consent of
Mortgagee, any such receivership will continue until the Secured
Obligations have been discharged in full, or until title to the
Property has passed after foreclosure sale and all applicable
periods of redemption have expired.
7.9 Right to Make Repairs, Improvements. Should any
part of the Property come into the possession of Mortgagee,
Mortgagee may use, operate, and/or make repairs, alterations,
additions and improvements to the Property for the purpose of
preserving it or its value. Mortgagor covenants to promptly
reimburse and pay to Mortgagee, at the place where the Note is
payable, or at such other place as may be designated by Mortgagee
in writing, the amount of all reasonable expenses (including the
cost of any insurance, taxes, or other charges) incurred by
Mortgagee in connection with its custody, preservation, use or
operation of the Property, together with interest thereon from
the date incurred by Mortgagee at the Default Rate, and all such
expenses, costs, taxes, interest, and other charges shall be a
part of the Secured Obligations. It is agreed, however, that the
risk of accidental loss or damage to the Property is undertaken
by Mortgagor and Mortgagee shall have no liability whatsoever for
decline in value of the Property, for failure to obtain or
maintain insurance, or for failure to determine whether any
insurance ever in force is adequate as to amount or as to the
risks insured.
7.10 Rate After Sale. In the event the Property shall
be sold upon foreclosure hereof, the sum for which the same shall
have been sold shall, for purposes of redemption, bear interest
at the Default Rate (as defined in the Note).
7.11 Surrender of Insurance. Mortgagee may surrender
the insurance policies maintained pursuant to the terms hereof,
or any part thereof, and receive and apply the unearned premiums
as a credit on the Secured Obligations and, in connection
therewith, Mortgagor hereby appoints Mortgagee (or any officer of
Mortgagee), as the true and lawful agent and attorney-in-fact for
Mortgagor (with full powers of substitution), which power of
attorney shall be deemed to be a power coupled with an interest
and therefore irrevocable, to collect such premiums.
7.12 Rights in Pursuit of Remedies. Mortgagee in
pursuance of the foregoing remedies, or in addition thereto,
(i) shall be entitled to resort to its several securities for the
payment of the sums secured hereby in such order and manner as
Mortgagee may think fit without impairing Mortgagee's lien in, or
rights to, any of such securities and without affecting the
liability of any person, firm or corporation for the sums secured
hereby, except to the extent that the Secured Obligations shall
have been reduced by the actual monetary consideration, if any,
received by Mortgagee from the proceeds of such security;
(ii) may, in Mortgagee's sole discretion, release for such
consideration, or none, as Mortgagee may require, any portion of
the Property without, as to the remainder of the security, in any
way impairing or affecting the lien of this Mortgage, or the
priority thereof, or improving the position of any subordinate
lienholder with respect thereto, except to the extent that the
Secured Obligations shall have been reduced by the actual
monetary consideration, if any, received by Mortgagee for such
release; and/or (iii) may accept the assignment or pledge of any
other property in place thereof as Mortgagee may require without
being accountable for so doing to any other lienor.
7.13 Waiver. Mortgagor hereby waives and releases
(i) all errors, defects and imperfections in any proceedings
instituted by Mortgagee under this Mortgage, (ii) all benefit
that might accrue to Mortgagor by virtue of any present or future
laws exempting the Property, or any part of the proceeds arising
from any sale thereof, from attachment, levy or sale under
execution, or providing for any stay of execution, exemption from
civil process, or extension of time for payment, and (iii) all
notices not herein elsewhere specifically required, of
Mortgagor's default or of Mortgagee's exercise, or election to
exercise, any option under this Mortgage. Mortgagor further
agrees to waive the issuance and service of process and enter its
voluntary appearance in any action, suit or proceeding brought in
connection with any Event of Default and if required by
Mortgagee, to consent to the appointment of a receiver or
receivers of the Property and of all the earnings, revenues,
rents, issues, profits and income thereof. Mortgagor will not at
any time insist upon, or plead, or in any manner whatever, claim
or take any benefit or advantage of any right under any statute
heretofore or hereafter enacted to redeem the property so sold,
or any part thereof, and Mortgagor hereby expressly waives all
benefit or advantage of any such law or laws, and covenants not
to hinder, delay or impede the execution of any power herein
granted or delegated to Mortgagee, but to suffer and permit the
execution of every power as though no such law or laws had been
made or enacted. Mortgagor, for itself and all who may claim
under it, waives, to the extent that it lawfully may, all right
to have the Property marshaled upon any foreclosure hereof.
7.14 Continued Lien of Mortgage. No recovery of any
judgment by Mortgagee and no levy of an execution under any
judgment upon the Property or upon any other property of
Mortgagor 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 Mortgagee hereunder, but
such liens, rights, powers and remedies of Mortgagee shall
continue unimpaired as before.
7.15 Subordination of Tenants' Rights under Leases.
In the event that Mortgagee shall have the right to foreclose
this Mortgage, Mortgagor authorizes Mortgagee at its option to
foreclose this Mortgage, subject to the rights of any tenants of
the Property if Mortgagee elects that this Mortgage shall be
subordinate to rights of tenants, and the failure to make any
such tenants parties defendant to any such foreclosure proceeding
and to foreclose their rights will not be asserted by Mortgagor
as a defense to any proceeding instituted by Mortgagee to collect
the Secured Obligations or any deficiency remaining unpaid after
the foreclosure sale of the Property.
ARTICLE VIII
ASSIGNMENT OF LEASES AND RENTS
8.1 Assignment of Leases and Rents. Mortgagor hereby
unconditionally and absolutely grants, transfers and assigns unto
Mortgagee all rents, royalties, issues, profits and income
("Rents") now or hereafter due or payable for the occupancy or
use of the Property, and all Leases, whether written or oral,
with all security therefor, including all guaranties thereof, now
or hereafter affecting the Property; reserving unto Mortgagor,
however, a license to collect and retain such Rents prior to the
occurrence of any Default or Event of Default hereunder. Such
license shall terminate automatically without notice to Mortgagor
upon the occurrence of a Default or an Event of Default.
Mortgagor represents that the Rents and the Leases have not been
heretofore sold, assigned, transferred or set over by any
instrument now in force and will not at any time during the life
of this assignment be sold, assigned, transferred or set over by
Mortgagor or by any person or persons whomsoever; and Mortgagor
has good right to sell, assign, transfer and set over the same
and to grant to and confer upon Mortgagee the rights, interest,
powers and authorities herein granted and conferred. Failure of
Mortgagee at any time or from time to time to enforce the
assignment of Rents and Leases under this section shall not in
any manner prevent its subsequent enforcement, and Mortgagee is
not obligated to collect anything hereunder, but is accountable
only for sums actually collected.
8.2 Further Assignments. Mortgagor shall give
Mortgagee at any time upon demand any further or additional forms
of assignment or transfer of such Rents, Leases and security as
may be reasonably requested by Mortgagee, and shall deliver to
Mortgagee executed copies of all such Leases and security.
8.3 Application of Rents. Mortgagee shall be
entitled to deduct and retain a just and reasonable compensation
from monies received hereunder for its services or that of its
agents in collecting such monies. Any monies received by
Mortgagee hereunder may be applied when received from time to
time in payment of any taxes, assessments or other liens
affecting the Property regardless of the delinquency, such
application to be in such order as Mortgagee may determine. The
acceptance of this Mortgage by Mortgagee or the exercise of any
rights by it hereunder shall not be, or be construed to be, an
affirmation by it of any Lease nor an assumption of any liability
under any Lease.
8.4 Collection of Rents. Upon or at any time after a
Default or an Event of Default shall have occurred and be
continuing, Mortgagee may declare all sums secured hereby
immediately due and payable, and may, at its option, without
notice, and whether or not the Secured Obligations shall have
been declared due and payable, either in person or by agent, with
or without bringing any action or proceeding, or by a receiver to
be appointed by a court, (a) enter upon, take possession of,
manage and operate the Property, or any part thereof (including
without limitation making necessary repairs, alterations and
improvements to the Property); (b) make, cancel, enforce or
modify Leases; (c) obtain and evict tenants; (d) fix or modify
Rents; (e) do any acts which Mortgagee deems reasonably proper to
protect the security thereof; and (f) either with or without
taking possession of the Property, in its own name sue for or
otherwise collect and receive such Rents, including those past
due and unpaid. In connection with the foregoing, Mortgagee
shall be entitled and empowered to employ attorneys, and
management, rental and other agents in and about the Property and
to effect the matters which Mortgagee is empowered to do, and in
the event Mortgagee shall itself effect such matters, Mortgagee
shall be entitled to charge and receive reasonable management,
rental and other fees therefor as may be customary in the area in
which the Property is located; and the reasonable fees, charges,
costs and expenses of Mortgagee or such persons shall be
additional Secured Obligations. Mortgagee may apply all funds
collected as aforesaid, less costs and expenses of operation and
collection, including reasonable attorneys' and agents' fees,
charges, costs and expenses, as aforesaid, upon any Secured
Obligations, and in such order as Mortgagee may determine. The
entering upon and taking possession of the Property, the
collection of such Rents and the application thereof as aforesaid
shall not cure or waive any default or waive, modify or affect
notice of default under the Note or this Mortgage or invalidate
any act done pursuant to such notice.
8.5 Authority of Mortgagee. Any tenants or occupants
of any part of the Property are hereby authorized to recognize
the claims of Mortgagee hereunder without investigating the
reason for any action taken by Mortgagee, or the validity or the
amount of secured obligations owing to Mortgagee, or the
existence of any default in the Note or this Mortgage, or under
or by reason of this assignment of Rents and Leases, or the
application to be made by Mortgagee of any amounts to be paid to
Mortgagee. The sole signature of Mortgagee shall be sufficient
for the exercise of any rights under this assignment and the sole
receipt of Mortgagee for any sums received shall be a full
discharge and release therefor to any such tenant or occupant of
the Property. Checks for all or any part of the rentals
collected under this assignment of Rents and Leases shall be
drawn to the exclusive order of Mortgagee.
8.6 Indemnification of Mortgagee. Nothing herein
contained shall be deemed to obligate Mortgagee to perform or
discharge any obligation, duty or liability of any lessor under
any Lease of the Property, and Mortgagor shall and does hereby
indemnify and hold Mortgagee harmless from any and all liability,
loss or damage which Mortgagee may or might incur under any Lease
or by reason of this assignment; and any and all such liability,
loss or damage incurred by Mortgagee, together with the costs and
expenses, including reasonable attorneys' fees, incurred by
Mortgagee in defense of any claims or demands therefor (whether
successful or not), shall be additional Secured Obligations, and
Mortgagor shall reimburse Mortgagee therefor on demand.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Time of the Essence. Time is of the essence with
respect to all provisions of the Loan Documents.
9.2 Joint and Several Obligations. If Mortgagor is
more than one person or entity, then (a) all persons or entities
comprising Mortgagor are jointly and severally liable for all of
the Secured Obligations; (b) all representations, warranties, and
covenants made by Mortgagor shall be deemed representations,
warranties, and covenants of each of the persons or entities
comprising Mortgagor; (c) any breach, Default or Event of Default
by any of the persons or entities comprising Mortgagor hereunder
shall be deemed to be a breach, Default, or Event of Default of
Mortgagor; (d) any reference herein contained to the knowledge or
awareness of Mortgagor shall mean the knowledge or awareness of
any of the persons or entities comprising Mortgagor; and (e) any
event creating personal liability of any of the persons or
entities comprising Mortgagor shall create personal liability for
all such persons or entities.
9.3 Waiver of Homestead and Other Exemptions. To the
extent permitted by law, Mortgagor hereby waives all rights to
any homestead or other exemption to which Mortgagor would
otherwise be entitled under any present or future constitutional,
statutory, or other provision of applicable state or federal law.
Mortgagor hereby waives any right it may have to require
Mortgagee to marshall all or any portion of the security for the
Secured Obligations.
9.4 Non Recourse. Except as expressly hereinafter
set forth, the recourse of Mortgagee with respect to the
obligations evidenced by the Note shall be solely to the
Property, Chattels and Intangible Personalty. Notwithstanding
anything to the contrary contained in the Note or in any Loan
Document, nothing shall be deemed in any way to impair, limit or
prejudice the rights of Mortgagee (a) in foreclosure or execution
proceedings or in any ancillary proceedings brought to facilitate
Mortgagee's foreclosure on the Property or any portion thereof;
(b) to recover from Mortgagor damages or costs (including without
limitation reasonable attorneys' fees) incurred by Mortgagee as a
result of waste by Mortgagor; (c) to recover from Mortgagor any
condemnation or insurance proceeds attributable to the Property
which were not paid to Mortgagee or used to restore the Property
in accordance with the terms of this Mortgage; (d) to recover
from Mortgagor any rents, profits, security deposits, advances,
rebates, prepaid rents or other similar sums attributable to the
Property collected by or for Mortgagor following an Event of
Default under any Loan Document and not properly applied to the
reasonable fixed and operating expenses of the Property,
including payments of the Note and other sums due under the Loan
Documents; (e) to pursue the personal liability of Mortgagor
under the provisions of Section 5.10 or 5.11 of this Mortgage;
(f) to exercise any specific rights or remedies afforded
Mortgagee under any other provisions of the Loan Documents or by
law or in equity (or to recover under any guarantee or suretyship
agreement given in connection with the Note); (g) to recover from
Mortgagor the amount of any accrued taxes, assessments, and/or
utility charges affecting the Property (whether or not the same
have been billed to Mortgagor) that are either unpaid by
Mortgagor or paid by Mortgagee under this Mortgage and to collect
from Mortgagor any sums expended by Mortgagee in fulfilling the
obligations of Mortgagor, as lessor, under any Leases; (h) to
pursue any personal liability of Mortgagor or any Surety under
the Environmental Indemnity Agreement; and (i) to recover from
Mortgagor the amount of any loss suffered by Mortgagee (that
would otherwise be covered by insurance) as a result of
Mortgagor's failure to maintain any insurance required under the
terms of any Loan Document. The agreement contained in this
Section to limit the personal liability of Mortgagor shall become
null and void and be of no further force and effect in the event
(i) that the Property, or any part thereof or any interest
therein, or any interest in Mortgagor, shall be further
encumbered by a voluntary lien securing any obligation upon which
Mortgagor or any General Partner, principal or affiliate of
Mortgagor shall be personally liable for repayment, whether as
obligor or guarantor; (ii) of any breach or violation of
Sections 5.4, 5.5 or 5.7 of this Mortgage, provided that any
breach or violation of said Sections is not cured within the time
periods specified within Section 6.3 of this Mortgage; (iii) of
any fraud or material misrepresentation by Mortgagor in
connection with the Property, the Loan Documents or the
application for the loan which is evidenced by the Note; or
(iv) of any execution, amendment, modification or termination of
any Lease without the prior written consent of Mortgagee if such
consent is required under the terms of the Loan Documents. For
purposes of the foregoing, "affiliate" shall mean any individual,
corporation, trust, partnership or any other person or entity
controlled by, controlling or under common control with
Mortgagor. A person or entity of any nature shall be presumed to
have control when it possesses the power, directly or indirectly
to direct, or cause the direction of, the management or policies
of another person or entity, whether through ownership of voting
securities, by contract, or otherwise.
9.5 Rights and Remedies Cumulative. Mortgagee's
rights and remedies under each of the Loan Documents are
cumulative of the rights and remedies available to Mortgagee
under each of the other Loan Documents and those otherwise
available to Mortgagee at law or in equity. No act of Mortgagee
shall be construed as an election to proceed under any particular
provision of any Loan Document to the exclusion of any other
provision in the same or any other Loan Document, or as an
election of remedies to the exclusion of any other remedy which
may then or thereafter be available to Mortgagee.
9.6 No Implied Waivers. Mortgagee shall not be
deemed to have waived any provision of any Loan Document unless
such waiver is in writing and is signed by Mortgagee. Without
limiting the generality of the preceding sentence, neither
Mortgagee's acceptance of any payment with knowledge of a Default
by Mortgagor, nor any failure by Mortgagee to exercise any remedy
following a Default by Mortgagor shall be deemed a waiver of such
Default, and no waiver by Mortgagee of any particular Default on
the part of Mortgagor shall be deemed a waiver of any other
Default or of any similar Default in the future.
9.7 No Third Party Rights. No person shall be a
third party beneficiary of any provision of any of the Loan
Documents. All provisions of the Loan Documents favoring
Mortgagee are intended solely for the benefit of Mortgagee, and
no third party shall be entitled to assume or expect that
Mortgagee will not waive or consent to modification of any such
provision in Mortgagee's sole discretion.
9.8 Preservation of Liability and Priority. Without
affecting the liability of Mortgagor or of any other person
(except a person expressly released in writing) for payment and
performance of all of the Secured Obligations, and without
affecting the rights of Mortgagee with respect to any security
not expressly released in writing, and without impairing in any
way the priority of this Mortgage over the interests of any
person acquired or first evidenced by recording subsequent to the
recording hereof, Mortgagee may, either before or after the
maturity of the Note, and without notice or consent: (a) release
any person liable for payment or performance of all or any part
of the Secured Obligations; (b) make any agreement altering the
terms of payment or performance of all or any of the Secured
Obligations; (c) exercise or refrain from exercising, or waive,
any right or remedy which Mortgagee may have under any of the
Loan Documents; (d) accept additional security of any kind for
any of the Secured Obligations; (e) release or otherwise deal
with any real or personal property securing the Secured
Obligations; or (f) apply the proceeds of any Sale as set forth
in Section 7.7(c) of this Mortgage. Any person acquiring or
recording evidence of any interest of any nature in the Property,
the Chattels, or the Intangible Personalty shall be deemed, by
acquiring such interest or recording any evidence thereof, to
have agreed and consented to any or all such actions by
Mortgagee.
9.9 Subrogation of Mortgagee. Mortgagee shall be
subrogated to the lien of any previous encumbrance discharged
with funds advanced by Mortgagee under the Loan Documents,
regardless of whether such previous encumbrance has been released
of record.
9.10 Notices. Any notice required or permitted to be
given by Mortgagor or Mortgagee under this Mortgage shall be in
writing and will be deemed given (a) upon personal delivery,
(b) on the first business day after receipted delivery to a
courier service which guarantees next-business-day delivery, or
(c) on the third business day after mailing, by registered or
certified United States mail, postage prepaid, in any case to the
appropriate party at its address set forth below:
If to Mortgagor:
Mark Centers Limited Partnership
600 Third Avenue
Kingston, Pennsylvania 18704-1679
Attn: Chief Financial Officer
If to Mortgagee:
Anchor National Life Insurance Company
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
Attn: Director-Mortgage Lending and Real Estate
Either party may change such party's address for notices or
copies of notices by giving notice to the other party in
accordance with this Section.
9.11 Defeasance. Upon payment and performance in full
of all of the Secured Obligations, Mortgagee will execute and
deliver to Mortgagor such documents as may be required to release
this Mortgage of record.
9.12 Illegality. If any provision of this Mortgage is
held to be illegal, invalid, or unenforceable under present or
future laws effective during the term of this Mortgage, the
legality, validity, and enforceability of the remaining
provisions of this Mortgage shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable provision
there shall be added automatically as a part of this Mortgage a
provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid,
and enforceable. If the rights and liens created by this
Mortgage shall be invalid or unenforceable as to any part of the
Secured Obligations, then the unsecured portion of the Secured
Obligations shall be completely paid prior to the payment of the
remaining and secured portion of the Secured Obligations, and all
payments made on the Secured Obligations shall be considered to
have been paid on and applied first to the complete payment of
the unsecured portion of the Secured Obligations.
9.13 Usury Savings Clause. It is expressly stipulated
and agreed to be the intent of Mortgagee and Mortgagor at all
times to comply with the applicable law governing the highest
lawful interest rate. If the applicable law is ever judicially
interpreted so as to render usurious any amount called for under
the Note or under any of the other Loan Documents, or contracted
for, charged, taken, reserved or received with respect to the
loan evidenced thereby, or if acceleration of the maturity of the
Note, any prepayment by Mortgagor, or any other circumstance
whatsoever, results in Mortgagor having paid any interest in
excess of that permitted by applicable law, then it is the
express intent of Mortgagor and Mortgagee that all excess amounts
theretofore collected by Mortgagee be credited on the principal
balance of the Note (or, at Mortgagee's option, paid over to
Mortgagor), and the provisions of the Note and other Loan
Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without
the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery
of the fullest amount otherwise called for hereunder and
thereunder. The right to accelerate maturity of the Note does
not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and Mortgagee
does not intend to collect any unearned interest in the event of
acceleration. All sums paid or agreed to be paid to Mortgagee
for the use, forbearance or detention of the Secured Obligations
evidenced hereby or by the Note shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread
throughout the full term of such Secured Obligations until
payment in full so that the rate or amount of interest on account
of such Secured Obligations does not exceed the maximum rate or
amount of interest permitted under applicable law. The term
"applicable law" as used herein shall mean any federal or state
law applicable to the loan made by Mortgagee to Mortgagor
evidenced by the Note.
9.14 Obligations Binding Upon Mortgagor's Successors.
This Mortgage is binding upon Mortgagor and Mortgagor's
successors and assigns, and shall inure to the benefit of
Mortgagee, and its successors and assigns, and the provisions
hereof shall likewise be covenants running with the land. The
duties, covenants, conditions, obligations, and warranties of
Mortgagor in this Mortgage shall be joint and several obligations
of Mortgagor and Mortgagor's successors and assigns.
9.15 Construction. All pronouns and any variations of
pronouns herein shall be deemed to refer to the masculine,
feminine, or neuter, singular or plural, as the identity of the
parties may require. Whenever the terms herein are singular, the
same shall be deemed to mean the plural, as the identity of the
parties or the context requires.
9.16 Attorneys' Fees. Any reference in this Mortgage
to attorneys' or counsel fees paid or incurred by Mortgagee shall
be deemed to include paralegals' fees and legal assistants' fees.
Moreover, wherever provision is made herein for payment of
attorneys' or counsels fees or expenses incurred by Mortgagee,
such provision shall include but not be limited to, such fees or
expenses incurred in any and all judicial, bankruptcy,
reorganization, administrative, or other proceedings, including
appellate proceedings, whether such fees or expenses arise before
proceedings are commenced, during such proceedings or after entry
of a final judgment.
9.17 Waiver and Agreement. MORTGAGOR HEREBY EXPRESSLY
WAIVES ANY RIGHT IT MAY HAVE UNDER APPLICABLE LAW TO PREPAY THE
NOTE, IN WHOLE OR IN PART, WITHOUT PREPAYMENT CHARGE, UPON
ACCELERATION OF THE MATURITY DATE OF THE NOTE, AND AGREES THAT,
IF FOR ANY REASON A PREPAYMENT OF ALL OR ANY PART OF THE NOTE IS
MADE, WHETHER VOLUNTARILY OR FOLLOWING ANY ACCELERATION OF THE
MATURITY DATE OF THE NOTE BY MORTGAGEE ON ACCOUNT OF THE
OCCURRENCE OF ANY EVENT OF DEFAULT ARISING FOR ANY REASON,
INCLUDING, WITHOUT LIMITATION, AS A RESULT OF ANY PROHIBITED OR
RESTRICTED TRANSFER, FURTHER ENCUMBRANCE OR DISPOSITION OF THE
PROPERTY OR ANY PART THEREOF SECURING THE NOTE, THEN MORTGAGOR
SHALL BE OBLIGATED TO PAY, CONCURRENTLY WITH SUCH PREPAYMENT, THE
PREPAYMENT PREMIUM PROVIDED FOR IN THE NOTE (OR, IN THE EVENT OF
ACCELERATION WHEN THE NOTE IS CLOSED TO PREPAYMENT, AS PROVIDED
IN SECTION 1.18 HEREOF). MORTGAGOR HEREBY DECLARES THAT
MORTGAGEE'S AGREEMENT TO MAKE THE LOAN EVIDENCED BY THE NOTE AT
THE INTEREST RATE AND FOR THE TERM SET FORTH IN THE NOTE
CONSTITUTES ADEQUATE CONSIDERATION, GIVEN INDIVIDUAL WEIGHT BY
MORTGAGOR, FOR THIS WAIVER AND AGREEMENT.
Mortgagor
9.18 Waiver of Jury Trial. MORTGAGEE AND MORTGAGOR
KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS MORTGAGE, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE OR ANY
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
HERETO OR TO ANY LOAN DOCUMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR MORTGAGOR AND MORTGAGEE ENTERING INTO THE LOAN
TRANSACTION EVIDENCED BY THE NOTE.
Mortgagor
Mortgagee
9.19 Open-End Mortgage. This Mortgage is an "Open-
End" Mortgage as defined in Sub Section 8143(f) of Title 42 of
the Pennsylvania Consolidated Statutes, and as such, is entitled
to the benefits of Senate Bill 693, 1989 session of the General
Assembly of Pennsylvania (the "Act") as codified at 42 Pa. C.S.A.
Sub Section 8143 et seq. The parties to this Mortgage intend
that, in addition to any other debt or obligations secured
hereby, this Mortgage shall secure unpaid balances of loan
advances made after this Mortgage is left for record with the
Recorder's Office of Luzerne County, Pennsylvania whether such
advances are made pursuant to an obligation of Mortgagee or
otherwise. The maximum amount of unpaid loan indebtedness (which
shall consist of unpaid balances of loan advances made either
before or after, or both before and after, this Mortgage is left
for record), which may be outstanding at any time is $4,100,000),
plus accrued and unpaid interest thereon. In addition to the
obligations of Mortgagor secured hereby, this Mortgage secures
unpaid balances of advances made with respect to the Property for
the payment of taxes, assessments, maintenance charges, insurance
premiums or costs incurred for the protection of the Property or
the lien of this Mortgage, and expenses, including, but not
limited to, reasonable costs and attorneys' fees incurred
by Mortgagee by reason of default by Mortgagor under this
Mortgage or any of the other Loan Documents.
All notices as set forth in Section 9.10, given by
Mortgagor to Mortgagee pursuant to 42 Pa. C.S.A. section 8143(c), shall
be given to Mortgagee personally or by registered or certified
mail at the address of Mortgagee as set forth in Section 9.10
hereof and such notice must be signed by all parties necessary to
bind Mortgagor in accordance with applicable documents of
formation of Mortgagor and all applicable laws.
9.20 Waiver of Rights to Notice or Judicial Hearing.
MORTGAGOR WAIVES EXEMPTIONS AND ANY AND ALL RIGHTS OF ANY NATURE
AND FROM ANY SOURCE TO NOTICE, JUDICIAL HEARING OR BOTH PRIOR TO
SALE OF THE PROPERTY OR ANY PORTION THEREOF EXCEPT AS MAY BE
EXPRESSLY REQUIRED BY THE STATUTES OF THE COMMONWEALTH OF
PENNSYLVANIA OR BY THIS MORTGAGE.
WARRANT OF ATTORNEY FOR CONFESSION OF JUDGMENT
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER OR
UNDER ANY OF THE OTHER LOAN DOCUMENTS, FOR THE PURPOSE OF
SECURING POSSESSION OF THE PROPERTY TO MORTGAGEE, MORTGAGOR
HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY, CLERK OF COURT
OR ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF
PENNSYLVANIA, AS ATTORNEY FOR MORTGAGOR, AS WELL AS FOR ALL
PERSONS CLAIMING UNDER, BY OR THROUGH MORTGAGOR, TO ENTER
JUDGMENT IN ANY COMPETENT COURT IN EJECTMENT FOR THE POSSESSION
OF THE PROPERTY TOGETHER WITH THE HEREDITAMENTS AND APPURTENANCES
AND ALL EQUIPMENT, PERSONAL PROPERTY AND FIXTURES NOW OR
HEREAFTER INSTALLED UPON THE SAME, AGAINST MORTGAGOR, AND
THEREIN TO CONFESS JUDGMENT FOR THE RECOVERY OF SUCH POSSESSION
BY MORTGAGEE, FOR WHICH THIS MORTGAGE, OR A COPY THEREOF VERIFIED
BY AFFIDAVIT, SHALL BE SUFFICIENT WARRANT; WHEREUPON, IF
MORTGAGEE SO DESIRES, A WRIT OF POSSESSION MAY BE ISSUED
FORTHWITH ON SAID JUDGMENT, WITHOUT ANY PRIOR WRIT OR PROCEEDING
WHATSOEVER, MORTGAGOR HEREBY RELEASING MORTGAGEE FROM ALL ERRORS
AND DEFECTS WHATSOEVER IN SAID PROCEEDINGS; AND IF FOR ANY
REASON, AFTER SUCH ACTION HAS BEEN COMMENCED, THE SAME SHALL BE
DISCONTINUED, MARKED SATISFIED OF RECORD OR BE TERMINATED, OR
POSSESSION OF THE PROPERTY SHALL REMAIN IN OR BE RESTORED TO
MORTGAGOR, MORTGAGEE SHALL HAVE THE RIGHT, FOR THE SAME EVENT OF
DEFAULT OR IN THE EVENT OF ANY SUBSEQUENT EVENT OF DEFAULT OR
DEFAULTS, TO BRING ONE OR MORE FURTHER ACTIONS IN EJECTMENT FOR
POSSESSION OF THE PROPERTY. THE JUDGMENT CONFERRED HEREIN IS
NON-RECOURSE TO THE MORTGAGOR AND ITS PROPERTIES (OTHER
THAN THE PROPERTY), EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN
SECTION 9.4 OF THIS MORTGAGE.
Mortgagee may bring an action in ejectment and confess
judgment therein before or after the institution of proceedings
to foreclose this Mortgage or to enforce the Note, or after entry
of judgment therein or on the Note, or after a Sheriff's sale of
the Property in which Mortgagee is the successful bidder, it
being the understanding of the parties that the authorization to
pursue such proceedings for obtaining possession and confession
of judgment therein is an essential part of the remedies for
enforcement of this Mortgage, the Note and the other Loan
Documents, and shall survive any execution sale to Mortgagee.
9.21 Governing Laws. The substantive laws of the
Commonwealth of Pennsylvania shall govern the validity,
construction, enforcement and interpretation of this Mortgage.
9.22 Inconsistency. In the event of any inconsistency
between the terms of the Loan Documents and the terms of that
certain First Mortgage Loan Application between Mortgagor and
Mortgagee dated October 28, 1996, the terms of the Loan Documents
shall govern and control in all respects.
IN WITNESS WHEREOF and intending to be legally bound,
Mortgagor has executed and delivered this Mortgage as of the date
first mentioned above.
MARK CENTERS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: MARK CENTERS TRUST, a
Maryland business trust, its
General Partner
By: /s/ Joshua Kane
Name: Joshua Kane
Title: Senior Vice President and
CFO
STATE OF PENNSYLVANIA )
) ss.
COUNTY OF LUZERNE )
On this, the 20th day of December, 1996, before me, the
undersigned officer, a Notary Public in and for the State and
County aforesaid, personally appeared Joshua Kane, Senior Vice
President and Chief Financial Officer of Mark Centers Trust, a
Maryland business trust, general partner of Mark Centers Limited
Partnership, a Delaware limited partnership, known to me (or
satisfactorily proven) to be the person whose name is subscribed
to the within instrument, and acknowledge that he executed the
same for the purposes therein contained and received a true and
correct copy of this instrument and of all other documents
referred to therein.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
/s/ Diane Policare
Notary Public
CERTIFICATE OF RESIDENCE
I certify that the address of the within-named
Mortgagee is One SunAmerica Center, Century City, Los Angeles,
California 90067-6022.
Rosenn, Jenkins & Greenwald
By: /s/ Garry Taroli
Agent for Mortgagee