Prepared by:
Brent S. Gorey, Esq.
Stradley, Ronon, Stevens & Young, LLP
2600 One Commerce Square
Philadelphia, PA 19103
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE, given as of the 28th day of January, 1998, by
MARK CENTERS LIMITED PARTNERSHIP, a Delaware limited partnership,
with offices located at 600 Third Avenue, Kingston, Pennsylvania
18704, ("Mortgagor"), to ROYAL BANK OF PENNSYLVANIA, a
Pennsylvania banking institution with offices at 732 Montgomery
Avenue, Narberth, Pennsylvania 19072 ("Mortgagee").
WHEREAS, Mortgagor by a promissory note dated the date of
this Mortgage (as the same may be amended, modified, extended or
renewed from time to time, the "Note") promises to pay to the
order of Mortgagee, with interest, the principal sum of Three
Million Five Hundred Thousand Dollars ($3,500,000.00), or so much
thereof as may be advanced from time to time by Mortgagee
pursuant to the terms of a Land Acquisition and Construction Loan
Agreement dated the date of this Mortgage between Mortgagor and
Mortgagee (as the same may be amended, modified, or supplemented
from time to time, the "Loan Agreement");
WHEREAS, the Note contains provisions which allow for
changes from time to time in the rate of interest;
NOW THIS INDENTURE WITNESSETH, that Mortgagor, in consider-
ation of the principal sum of Three Million Five Hundred Thousand
Dollars ($3,500,000.00) evidenced by the Note, and to secure the
payment thereof with interest thereon, and all other sums due or
to become due under the Note, this Mortgage, or the Loan
Agreement (the Note, this Mortgage, the Loan Agreement, and all
other documents given as security for or in connection with the
Note, as the same may be amended, modified, or supplemented from
time to time, are sometimes collectively referred to below as the
"Loan Documents"), and to secure the performance of all other
covenants, terms, conditions, and agreements of Mortgagor under
the Loan Documents, and to secure the payment of any past,
present, and future loans, advances, extensions of credit, or
other financial accommodations made by Mortgagee to Mortgagor, or
<PAGE 2>
to third parties upon the surety, guaranty, endorsement, or other
accommodation of Mortgagor, and intending to be legally bound,
does hereby transfer, assign, mortgage and pledge and does hereby
grant, bargain, sell, convey, alien, release and confirm unto
Mortgagee, its successors and assigns, and does hereby assign and
grant to Mortgagee, its successors and assigns, a security
interest in:
ALL THAT CERTAIN lot(s) or parcel(s) of ground in Ocean
County, New Jersey, described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Premises");
TOGETHER WITH all present and future buildings and improve-
ments erected or to be erected thereon, as well as all present
and future alterations, additions and improvements now or
hereafter made thereto (collectively, the "Improvements"); and
all streets, alleys, passages, easements, licenses, ways, water,
water courses, water rights, air rights, other rights, timber,
crops, minerals, liberties, privileges, hereditament and the
appurtenances thereunto belonging (collectively, the
"Hereditaments");
TOGETHER WITH all present and future reversions, remainders,
incomes, rents, security deposits, issues, profits, fees,
payments, grants, franchises, rights, claims, concessions, and
operating privileges derived from or received in connection with
all purposes for which the Premises and the Improvements might be
employed, whether now existing or hereafter arising
(collectively, the "Rents");
TOGETHER WITH all present and future machinery, apparatus,
equipment, fittings, fixtures, and articles of personal property
of Mortgagor now or hereafter located on, about, under or in the
Premises or the Improvements, without regard to whether the same
may be affixed to the Premises or Improvements, at any time and
from time to time and used or usable in connection with any
present or future operation or occupancy of the Improvements,
including but not limited to all heating, electrical, air condi-
tioning, ventilating, lighting, laundry, incinerating and power
equipment, engines, pipes, pumps, tanks, motors, conduits,
switchboards, plumbing, lifting, cleaning, fire prevention, fire
extinguishing, and communications apparatus, appliances, furnish-
ings, carpeting, cabinets, partitions, ducts and compressors, and
all parts and accessories therefor and all substitutions and
<PAGE 3>
replacements thereof, and the cash and non-cash proceeds of all
the foregoing, including but not limited to the proceeds of any
policy of insurance thereon (collectively, the "Building
Equipment");
TOGETHER WITH all present and future contracts relating to
the Premises, the Improvements, the Hereditaments, or the
Building Equipment; all documents, contract rights, accounts,
commitments, construction contracts, architectural agreements,
general intangibles (including, but not limited to, trademarks
and trade names), instruments, notes and chattel paper arising
from or by virtue of any transaction related to the Premises, the
Improvements, or the Building Equipment; and all other interests
of every kind and character that Mortgagor now has or hereafter
acquires in and to the Premises, the Improvements, the Heredita-
ments and the Building Equipment (collectively, the "Rights");
TOGETHER WITH all awards, decrees, proceeds and settlements
made to or for the benefit of Mortgagor by reason of any damage
to, destruction of or taking of the Premises or any part thereof
or any Improvements, Hereditaments, or Building Equipment,
whether made by reason of the exercise of the right of eminent
domain or otherwise, or by any public or private authority,
tribunal, corporation or other entity or by any natural person
("Damages").
All of the foregoing property of whatever kind encumbered by
this Mortgage and any additional property now owned or hereafter
acquired by Mortgagor and subject to the lien of this Mortgage or
intended to be so is sometimes referred to below as the
"Mortgaged Property."
TO HAVE AND TO HOLD the Mortgaged Property to Mortgagee, its
successors and assigns, forever to its and their own proper use,
benefit and behoof forever.
PROVIDED, HOWEVER, that if Mortgagor shall promptly pay or
cause to be paid to Mortgagee the principal sum (including all
additional advances and all other sums) payable by Mortgagor to
Mortgagee under the Loan Documents, with interest thereon, and
shall perform or cause to be performed all other covenants,
terms, conditions, and agreements contained in the Loan
Documents, and shall promptly pay or cause to be paid all other
sums secured by this Mortgage, all without fraud or delay or
<PAGE 4>
deduction or abatement of anything or for any reason, then this
Mortgage and the estate granted by this Mortgage shall cease,
terminate and become void.
Mortgagor covenants and warrants that Mortgagor is sole
lawful owner of an indefeasible estate in fee simple in the
Mortgaged Property, free from all prior liens and encumbrances,
and will warrant and forever defend the title thereof unto the
Mortgagee against all claims whatsoever. In the event the
interest of Mortgagee in the Mortgaged Property or any part
thereof should be endangered or should be challenged, directly or
indirectly, Mortgagor authorizes Mortgagee, at Mortgagor's
expense, to take all necessary and proper steps for the defense
of such interest, including the employment of counsel, the
prosecution or defense of litigation, and the compromise or
discharge of claims made against such interest.
Mortgagor further covenants and agrees with Mortgagee that,
until payment of all sums secured by this Mortgage:
1. Payment of Sums Secured and Performance.
(a) Mortgagor shall pay when due the principal sum
secured by the Mortgage with interest thereon at the times and in
the manner as provided in the Note and shall pay when due all
other sums secured by this Mortgage.
(b) Mortgagor shall promptly and faithfully observe
and perform all covenants, terms, conditions, and agreements
contained in this Mortgage, in the Note, and in the other Loan
Documents.
2. Taxes and Other Charges. Mortgagor shall pay, prior to
the time when interest or penalties commence to accrue thereon,
all taxes, sewer and water rents and other charges, including
charges in lieu of taxes, and other claims owing the State of New
Jersey or any other governmental authority, state or local, and
all taxes, charges, and claims owing to the United States of
America. Promptly after request by Mortgagee, Mortgagor shall
produce to Mortgagee receipts or other satisfactory evidence of
the payment of such items; provided, however, if Mortgagor in
good faith and by appropriate legal action shall contest the
validity or the amount of any such item, after notice to
Mortgagee, and, if required by Mortgagee, shall have furnished
<PAGE 5>
and deposited security as required by Mortgagee and furnished
assurance satisfactory to Mortgagee indemnifying it against any
loss by reason of such contest, then Mortgagor shall not be
required to pay the item or to produce the required receipts so
long as the contest: (i) operates to prevent collection and
enforcement; (ii) does not interfere with the use, occupancy or
operations of the Mortgaged Property and the timely payment of
all sums due under this Mortgage; (iii) does not jeopardize the
lien of this Mortgage; (iv) is maintained and prosecuted with
diligence; and (v) is not terminated or discontinued adversely
to Mortgagor.
3. Insurance.
(a) Mortgagor shall keep the Premises, the Improve-
ments, and the Building Equipment insured for the benefit of
Mortgagee, its successors and assigns, as its interest may
appear, against loss or damage by fire and other hazards
including, without limitation, "all risks" (with extended
coverage, vandalism and malicious mischief endorsements), upon
terms and in companies satisfactory to Mortgagee, at all times in
amounts required by Mortgagee and not less than the full
replacement value of the Improvements and the Building Equipment.
Mortgagor shall deliver all policies of insurance to the
Mortgagee, each of such policies to contain noncontributory
mortgagee clauses satisfactory to Mortgagee and provision for
thirty (30) days' written notice, certified mail, return receipt
requested, to Mortgagee of cancellation or material change in
coverage, and to be endorsed to name Mortgagee as an additional
insured with loss payable to Mortgagee. Mortgagor shall not take
out separate insurance concurrent in form or contributing in the
event of loss with the insurance required to be maintained under
this Mortgage, unless Mortgagee is included on such insurance as
an additional named insured with loss payable to Mortgagee under
a standard mortgagee endorsement of the character above
described. Mortgagor shall immediately notify Mortgagee whenever
such separate insurance is taken out and shall promptly deliver
to Mortgagee the policy of such insurance. Mortgagor shall
maintain and deliver satisfactory evidence to Mortgagee that
there are in effect, if and as required by Mortgagee, policies of
workmen's compensation, general liability insurance, and flood
insurance, in such amounts as Mortgagee may from time to time
require, in such form and issued by companies acceptable to
Mortgagee, and such other insurance (including without limitation
<PAGE 6>
business interruption insurance) as Mortgagee may from time to
time require. Mortgagor shall promptly proceed to effect new
insurance on the Mortgaged Property satisfactory to Mortgagee, if
any required insurance shall expire, or be withdrawn, or become
void by breach of any condition by Mortgagor, or become void or
unsafe by reason of the failure of or impairment of the capital
of any company in which such insurance may then be, or if for any
other reason whatsoever such insurance shall become
unsatisfactory to Mortgagee.
(b) Mortgagor shall pay as they shall become due all
premiums for all insurance, and shall deliver evidence of payment
to Mortgagee within ten (10) days of payment. In event of loss
or casualty, Mortgagor shall give immediate written notice to
Mortgagee, and Mortgagee may make proof of loss if not promptly
made by Mortgagor. Mortgagee shall have the right, at its
election, to adjust and compromise any loss claims under such
insurance. Mortgagor directs any insurance company to pay
directly to Mortgagee any monies which may become payable to
Mortgagor or Mortgagee as above and under such insurance,
including return of unearned premiums, and Mortgagor appoints
Mortgagee as attorney-in-fact to endorse any draft for such
monies. All amounts recoverable under any insurance policy
required by this Mortgage are assigned to Mortgagee and in the
event of a loss the amount so collected, net of any cost incurred
by Mortgagee in collecting the same, including attorneys' fees,
shall be made available for restoration or replacement of the
Improvements and Building Equipment then subject to the lien of
this Mortgage, provided:
(i) The fire or other occurrence causing the
loss occurs more than six (6) months prior to the maturity date
of the Note.
(ii) An Event of Default does not exist and,
during the course of restoration and replacement does not occur,
under this Mortgage or the other Loan Documents.
(iii) Mortgagor shall deposit with Mortgagee in
an interest bearing account sufficient funds to cover the costs
of restoring and replacing the Improvements to the extent such
costs are in excess of the available insurance proceeds.
<PAGE 7>
(iv) Mortgagor shall promptly furnish to
Mortgagee plans and specifications for the restoration and
replacement of the Improvements by such architect as shall be
selected and engaged by Mortgagor and approved by Mortgagee.
(v) Mortgagor shall submit evidence satisfac-
tory to Mortgagee that the value of the Premises, as restored and
replaced, is not less than the value of the Premises as of the
date of the loss.
(vi) Mortgagor shall submit satisfactory
evidence that the restoration will be completed prior to the
earlier of: (i) the maturity of the Note or (ii) one hundred
eighty (180) days after the fire or other occurrence causing the
loss, or such other period of time necessary due to extent of
such loss as Mortgagee may approve in writing in its sole
discretion (the "Completion Date").
(vii) Prior to the commencement of such restora-
tion, Mortgagor shall take all steps necessary to avoid the
imposition of any mechanics' liens on the Premises or
Improvements.
Subject to the foregoing, insurance proceeds, net of
the cost of adjusting, collecting, and such reasonable
administrative charge as Mortgagee may impose for distributing
same, shall be advanced pursuant to and subject to the provisions
and conditions of this Mortgage as work progresses and upon the
architect's certification. The insurance proceeds to be released
shall be disbursed on request, but no more frequently than twice
each month, in accordance with a draw schedule approved by
Mortgagee. The item or items to which each distribution may be
applied are subject to the prior approval of Mortgagee. Upon
completion of such restoration, reconstruction and renovation, or
upon occurrence of an Event of Default under this Mortgage, any
portion of the insurance proceeds remaining unexpended shall be
applied by Mortgagee in its sole discretion to the payment of
accrued and unpaid interest, if any, on account of the unpaid
principal sum, or to other sums due under this Mortgage or the
other Loan Documents, in such order as Mortgagee may elect. No
damage or destruction of the Mortgaged Property nor any
application of insurance proceeds to the payment of the
<PAGE 8>
indebtedness evidenced by the Note shall postpone or reduce the
amount of any installment of principal or interest due under the
Note.
In the event all conditions of this paragraph (b) are
not fully complied with within forty-five (45) days after the
fire or other occurrence causing the loss, or all restoration,
reconstruction and renovation is not completed by the Completion
Date, and with regard to all other insurance proceeds (other than
proceeds payable under the hazard insurance policy), all
insurance proceeds shall be applied by Mortgagee in its sole
discretion to the payment of accrued and unpaid interest, if any,
on account of the unpaid principal sum, or to other sums due
under this Mortgage or under the other Loan Documents, in such
order as Mortgagee may elect.
(c) In the event of foreclosure of this Mortgage or
other transfer of title to the Mortgaged Property in
extinguishment of the indebtedness secured by this Mortgage, all
right, title and interest of Mortgagor to any insurance policies
then in force covering the Mortgaged Property shall pass to the
transferee of the Mortgaged Property. Mortgagee is irrevocably
appointed by Mortgagor as attorney-in-fact for Mortgagor, coupled
with an interest, to assign any policy in the event of the
foreclosure of this Mortgage or other extinguishment of the
indebtedness secured by this Mortgage.
4. Escrow Deposits.
(a) Mortgagor shall deposit with Mortgagee, in a lump
sum concurrently with the execution of this Mortgage and in
monthly installments thereafter, such sums as shall equal
annually the amount of the annual real estate taxes and such
other charges as may be assessed or levied by any public
authority on the Mortgaged Property. It is intended that not
later that one month prior to the dates on which the taxes and
other charges shall last be due and payable without interest or
penalty, such sums shall be applied to the payment of the item or
items in respect of which such sums were deposited, or, at
Mortgagee's option, to the payment of such items in such order of
priority as Mortgagee shall determine, as the same become due and
payable, and Mortgagor shall make available to Mortgagee proper
bills therefor. If at any time that it is intended that
Mortgagor shall have deposited with Mortgagee a sufficient sum to
<PAGE 9>
pay any tax or other charge in full and the amount then held by
Mortgagee on deposit therefor shall be insufficient for that
purpose, Mortgagor, upon demand, shall pay to Mortgagee any
amount necessary to make up such deficiency. If Mortgagor shall
be in default under this Mortgage, Mortgagee may at its option
apply the amounts then deposited with Mortgagee, or any part
thereof, in payment of the unpaid sums secured by this Mortgage.
Nothing contained in this paragraph shall be deemed to affect any
right or remedy of Mortgagee under any provisions of this
Mortgage or any statute or rule of law to pay any such items and
to add the amount of the payment, with interest, as provided in
this Mortgage, to the indebtedness secured by this Mortgage, and
to require payment thereof on demand. Payments from the deposit
required under this Mortgage may be made by Mortgagee even though
subsequent owners of the Mortgaged Property may benefit by such
payments. If, when making any assignment of this Mortgage and the
Note, the then Mortgagee shall pay over to its assignee the then
balance of the deposits made by Mortgagor, such assigning
Mortgagee shall have no further obligation to Mortgagor for the
proper application of such deposits.
(b) No amounts paid under paragraph (a), above, shall
be deemed to be trust funds but may be commingled with the
general funds of Mortgagee. Unless otherwise required by law,
Mortgagee shall have no obligation to pay interest to Mortgagor
on any amounts so deposited.
5. Maintenance of Mortgaged Property. Mortgagor shall
maintain the Mortgaged Property in good repair, order, and in
first class condition; except as otherwise provided in or
contemplated by the Loan Agreement, shall not remove any Building
Equipment from the Premises or the Improvements, without the
prior written consent of Mortgagee; except as otherwise provided
in or contemplated by the Loan Agreement, shall not make,
install, or permit to be made or installed, any alterations,
additions, improvements, fixtures, appliances or equipment of any
nature to or in the Mortgaged Property, without the prior written
consent of Mortgagee; shall not commit or suffer any waste of the
Mortgaged Property; shall not make any change in the use of the
Mortgaged Property which may increase in any way the risk of fire
or other hazard or which may impair the security of this
Mortgage; shall not permit the Mortgaged Property to become
deserted or unguarded; shall promptly protect and conserve any
portion of the Mortgaged Property remaining after any damage to
<PAGE 10>
or partial destruction of the Mortgaged Property; shall promptly
repair, restore, replace, or rebuild any portion of the Mortgaged
Property which is damaged or destroyed; and shall promptly
restore the balance of the Mortgaged Property remaining after any
condemnation.
6. Inspections. Mortgagor shall permit Mortgagee and its
agents, at any time and from time to time, to enter upon the
Premises and Improvements and to inspect and appraise the same
for any purpose.
7. Estoppel Affidavit. Mortgagor shall, within five (5)
days after request in person or within ten (10) days after
request by mail, furnish a written statement or declaration, duly
acknowledged, of the amount due on this Mortgage and whether any
offsets or defenses exist thereto or against this Mortgage.
8. Compliance with Laws and Agreements. Mortgagor shall
comply with all rules, laws, ordinances, regulations, agreements,
covenants, conditions, contracts, declarations, easements,
encumbrances, licenses and restrictions affecting the Mortgaged
Property, shall not suffer or permit any violation thereof, shall
pay all fees and charges of any kind in connection therewith, and
shall do or cause to be done all things necessary to preserve
intact and unimpaired any and all easements, appurtenances, and
other interests and rights in favor of, or constituting any
portion of, the Mortgaged Property.
9. Transfer of Mortgagor Property. Mortgagor shall not
sell, transfer, or assign, and shall not permit the sale,
transfer or assignment, voluntarily or involuntarily, by
operation of law or otherwise, of the Mortgaged Property, or any
part of or interest in the Mortgaged Property, without the prior
written consent of Mortgagee, which consent Mortgagee may in its
sole discretion withhold. A transfer of the Mortgaged Property
shall be deemed to have occurred by virtue of the transfer of
more than fifty percent (50%) of any interest (stock, partnership
or otherwise) in Mortgagor, whether in a single transaction or by
virtue of a series of transactions and whether voluntarily or
involuntarily, by operation of law or otherwise.
10. Liens and Encumbrances. Mortgagor shall maintain this
Mortgage as a valid first lien (and security interest) on the
Mortgaged Property, and shall not create, incur, assume, or
<PAGE 11>
suffer to exist any mortgage, lien, charge, security interest or
other encumbrance upon the Mortgaged Property, or any part
thereof, whether senior or subordinate, without the prior written
consent of Mortgagee, which consent Mortgagee may in its sole
discretion withhold. If any such lien or encumbrance is filed or
recorded without Mortgagee's consent, then in addition to the
other remedies available under the terms of this Mortgage,
Mortgagor shall have it removed of record within thirty (30) days
after it is filed or recorded. By placing or accepting any
mortgage, lien or encumbrance of any type, whether voluntary or
involuntary, whether consented to by Mortgagee or not, against
the Mortgaged Property, the holder shall be deemed to have
agreed, without any further act or documentation, that its
mortgage, lien, and encumbrance shall be subordinate in lien
priority to this Mortgage (including, without limitation, amend-
ments which increase the interest rate on the Note, provide for
future advances secured by this Mortgage, or provide for the
release of portions of the Mortgaged Property with or without
consideration).
11. Condemnation. Mortgagor shall notify Mortgagee
promptly of the commencement of any proceedings for the
condemnation or the taking by eminent domain of all or any part
of the Mortgaged Property. Mortgagee shall have the right to
commence, appear in, and prosecute in its own or in Mortgagor's
name, any such proceeding, and to settle or compromise any claim
in connection therewith. Mortgagor appoints Mortgagee attorney-
in-fact for Mortgagor, which appointment is coupled with an
interest, to collect and receive any awards, damages, payments,
and compensation from the authorities making the same, and to
give receipts and acquittance therefor, and to institute, appear
in and prosecute any proceeding therefor. All sums collected by
or paid to Mortgagee pursuant to any such assignment, net of any
cost incurred by Mortgagee in collecting the same, including
attorneys' fees, may be: (i) applied by Mortgagee, in such order
of priority as Mortgagee shall determine, to the payment of
accrued interest and principal, whether or not then due and
payable, or any other sums secured by this Mortgage; or (ii) paid
or made available to Mortgagor, on such terms and conditions as
Mortgagee may determine in its discretion, without waiving or
impairing any equity or lien under and by virtue of this
Mortgage. If, prior to the receipt by Mortgagee of such sums,
the Mortgaged Property or any part thereof shall have been sold
on foreclosure of this Mortgage, Mortgagee shall have the right,
<PAGE 12>
whether or not a deficiency judgment on the Note shall have been
sought, recovered or denied, to receive such sums to the extent
of the debt remaining unsatisfied after such sale, with interest
thereon at the highest rate set forth in the Note, and to receive
the counsel fees, costs and disbursements incurred by Mortgagee
in connection with the collection of such sums.
12. Leases and Rents. Mortgagor assigns to Mortgagee, as
security for Mortgagor's obligations under this Mortgage, any and
all leases entered into by Mortgagor for any portion of the
Premises or Improvements, whether now existing or hereafter
created, including all rents due and to become due thereunder as
well as all rights and remedies provided therein for the
collection of rents. Mortgagee in no way assumes or will assume
any of the obligations as lessor under any leases, and this
assignment shall not release Mortgagor of its obligations as
lessor. Mortgagor shall perform, or cause to be performed, every
obligation of the lessor and shall enforce every obligation of
the lessee in every lease that is assigned to Mortgagee or any
tenancy in which the rents are or may be assigned to Mortgagee,
and shall not, modify, alter, waive or cancel any such lease or
any part thereof, nor anticipate for more than one (1) month any
rents that may be collectible under such lease or that may have
been assigned to Mortgagee, nor assign any such lease or any such
rents, without the prior written consent of Mortgagee.
13. Subordinate Lienholders. Mortgagor shall not permit
the holder of any subordinate mortgage or other subordinate lien,
whether or not consented to by Mortgagee, to terminate any lease
or agreement of sale for all or a portion of the Mortgaged
Property, whether or not that lease or agreement of sale is
subordinate (whether by law or the terms of such lease or a
separate agreement) to the lien of this Mortgage, without the
prior written consent of Mortgagee. The holder of any
subordinate mortgage or other subordinate lien shall have no such
right, whether by foreclosure of its mortgage or lien or
otherwise, to terminate any such lease or agreement of sale,
whether or not permitted to do so by Mortgagor or as a matter of
law, and any such attempt to terminate any such lease or
agreement of sale shall be ineffective and void, without the
prior written consent of Mortgagee.
<PAGE 13>
14. Payment of Costs and Expenses. If Mortgagor fails to
pay any taxes, water and sewer rents, assessments, charges,
claims, fees, costs, or expenses required to be paid under the
terms of this Mortgage or to maintain insurance as required, or
to make all necessary repairs to the Mortgaged Property,
Mortgagee may, but shall not be obligated to, advance sums on
behalf of Mortgagor in payment of such taxes, water and sewer
rents, assessments, charges, claims, costs, expenses, fees,
insurance and repairs, with right of subrogation, without
prejudice to the right of enforcement of the obligation of the
Note, or the other remedies of Mortgagee in this Mortgage, by
reason of the failure of Mortgagor to make payment of the same;
and all such sums so advanced by Mortgagee shall be added to and
become a part of the indebtedness secured by this Mortgage, and
payment of such sums (with interest thereon at the highest rate
specified in the Note) may be enforced at any time by Mortgagee
against Mortgagor.
15. Changes in Laws of Taxation. If at any time the United
States Government or any department or bureau thereof shall
require internal revenue stamps on the Note secured by this
Mortgage, Mortgagor shall pay for same upon demand; and on
default of such payment within fifteen (15) days after demand,
the holder of the Note may pay for such stamps and add the amount
so paid to the indebtedness evidenced by the Note and secured by
this Mortgage. If any law or ordinance adopted after the date of
this Mortgage imposes a tax on Mortgagee with respect to the
Mortgaged Property, the value of Mortgagor's equity in the
Mortgaged Property, the amount of the indebtedness secured by
this Mortgage, the Note, or the other Loan Documents, Mortgagee
shall have the right at its election to give Mortgagor sixty (60)
days written notice to pay the indebtedness secured by this
Mortgage, whereupon such indebtedness shall become due and
payable at the expiration of such period of sixty (60) days,
unless prior thereto, lawfully and without violation of usury
laws, Mortgagor has paid any such tax in full as the same became
due and payable.
16. Environmental Covenants.
(a) Mortgagor shall not use, nor permit any other
party to use, the Mortgaged Property for the purpose of
generating, treating, producing, storing, handling, transferring,
processing, transporting, disposing or otherwise releasing
Hazardous Substances, either on, from or about the Mortgaged
<PAGE 14>
Property or elsewhere, which (i) creates or causes or threatens
to create or cause contamination, either on the Mortgaged
Property or elsewhere, required by any governmental authority to
be removed or remedied under any Environmental Law, (ii) creates
any form of liability, direct or indirect, due to such actual or
threatened contamination, or (iii) is in contravention of any
Environmental Law. Mortgagor shall require in all leases and
subleases that all tenants, subtenants, and other occupants of
the Mortgaged Property not use or occupy the Mortgaged Property
in contravention of the Environmental Laws and the terms of this
Mortgage.
(b) The term "Environmental Law" includes any and all
current or future federal, state, county, regional and local
laws, statutes, rules, regulations and ordinances concerning
protection of health or the environment, including, but not
limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sub Section 9601 et
seq., as amended ("CERCLA"), the Resource Conservation and
Recovery Act, 42 U.S.C. Sub Section 6901 et seq., as amended
("RCRA"), the Toxic Substances Control Act, 15 U.S.C. Sub Section
2601 et seq., as amended ("TSCA"), the New Jersey Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 et. seq.
("Spill Act"), and the New Jersey Industrial Site Recovery Act
("ISRA"). The term "Hazardous Substances" includes "hazardous
substances" as defined in CERCLA and the Spill Act, "hazardous
wastes" as defined in RCRA, and "toxic substances" as defined in
TSCA, and any and all other pollutants and contaminants regulated
or controlled by Environmental Laws.
(c) Mortgagor shall, in the event of any actual or
threatened discharge, spill, injection, escape, emission,
disposal, leak or other release of Hazardous Substances on, from
or about the Mortgaged Property, which is not authorized by a
permit or other approval issued by the appropriate governmental
agencies, promptly notify the U.S. Environmental Protection
Agency and the appropriate agency of the State of New Jersey, and
shall take all steps necessary to promptly remove, remediate, or
otherwise clean up such actual or threatened discharge, spill,
injection, escape, emission, disposal, leak or other release in
accordance with the provisions of all Environmental Laws, and
shall receive a certification from the appropriate agency of the
State of New Jersey, or U.S. Environmental Protection Agency that
the Mortgaged Property and any other affected property has been
<PAGE 15>
cleaned up to the satisfaction of those agencies.
(d) Mortgagor grants Mortgagee and its agents,
employees, contractors and designees an irrevocable license
(coupled with an interest) to enter the Mortgaged Property from
time to time, at Mortgagor's expense, to evaluate and monitor the
Mortgaged Property for compliance with all Environmental Laws as
well as the terms of this Mortgage, and to perform appropriate
tests (including, without limitation, test borings) and to take
samples (including, without limitation, soil and groundwater
samples). Mortgagor shall provide Mortgagee with all notices and
other communications received from federal, state, county,
regional and local agencies and departments which enforce and
administer Environmental Laws. Mortgagor shall provide
Mortgagee, from time to time upon request, with any and all
information requested by Mortgagee concerning the use of the
Mortgaged Property and Mortgagor's compliance with the terms of
this Mortgage and Environmental Laws.
(e) Mortgagor shall and does release, indemnify, agree
to pay on behalf of, and hold harmless Mortgagee and its
officers, directors, agents, employees, successors and assigns of
and from any loss, claim, cost, cause of action, action, demand,
damage, fine (civil or criminal), penalty or expense, including
without limitation clean-up costs, attorneys' fees and court
costs, which may be incurred, suffered or sustained by reason of
any violation or alleged violation of any terms of this Mortgage
or any Environ-mental Law on, in, under, from or about the
Mortgaged Property, caused in whole or in part, regardless of
fault, by any past, present or future owner, occupier, tenant,
subtenant, licensee, guest, or other person or entity, including
but not limited to Mortgagor and Mortgagee. The terms of this
paragraph shall survive the payment in full of all sums secured
this Mortgage and the termination and satisfaction of record of
this Mortgage.
(f) If Mortgagee should pay or incur any costs, fees,
expenses, settlements, damages, fines (criminal or civil) or
penalties, including, but not limited to, clean-up costs, at-
torneys' fees and court costs, because of a past, present or
future violation of the terms of this Mortgage or Environmental
Laws on, in, under, from or about the Mortgaged Property, all
such sums shall be added to the indebtedness secured by this
Mortgage, shall be payable on demand by Mortgagor, and shall bear
<PAGE 16>
interest at the highest rate set forth in the Note. The terms of
this paragraph shall survive the payment in full of all other
sums secured by this Mortgage and the termination and
satisfaction of record of this Mortgage.
17. Environmental Representations. Mortgagor has investi-
gated the prior ownership and uses of the Mortgaged Property, in
a manner consistent with good commercial and customary practice,
to determine that the Mortgaged Property is free of Hazardous
Substances. Mortgagor, in performing its investigation, has
considered (i) the relationship of the purchase price to the
value of the Mortgaged Property if uncontaminated when acquired,
(ii) commonly known or ascertainable information about the
Mortgaged Property, and (iii) the obviousness of the presence or
likely presence of contamination. Mortgagor warrants and
represents to Mortgagee, to the best of Mortgagor's knowledge,
that:
(a) None of the Mortgaged Property has ever been used
to treat, store, produce, handle, transfer, process, transport,
dispose or otherwise release Hazardous Substances which has
caused, however remotely, a contamination that requires or could
require removal or remediation under any Environmental Law or
that creates or could create any liability for removal or
remediation.
(b) No contamination or pollution or danger of
pollution or contamination exists from a condition on the
Mortgaged Property which requires any corrective action under any
Environmental Law or which could result in any liability for
corrective action.
(c) No notification has been filed with regard to a
release of Hazardous Substances on, into or from the Mortgaged
Property under any Environmental Laws.
(d) Neither Mortgagor nor any prior owner or occupier
of the Mortgaged Property has received a summons, citation,
notice of violation, administrative order, directive, letter or
other communication, written or oral, from any governmental or
quasi-governmental authority concerning any violation or alleged
violation of any Environmental Law.
<PAGE 17>
(e) No underground storage tanks are currently located
on the Mortgaged Property. Any such tanks that previously
existed on the Mortgaged Property were removed in compliance with
all Environmental Laws and there was no evidence of any
contamination caused by the removal of any such tanks.
(f) No asbestos-containing materials and no polychlor-
inated biphenyls are located on the Mortgaged Property.
18. Events of Default. The occurrence of any one or more
of the following events shall constitute a default under this
Mortgage ("Event of Default"):
(a) Mortgagor fails to observe or perform any terms,
conditions, and agreements of this Mortgage or the other Loan
Documents to be observed or performed by Mortgagor (subject, to
the extent applicable thereto, to any cure or grace periods in
the Note).
(b) A default or event of default otherwise occurs
under the Note, the Loan Agreement, or the other Loan Documents.
(c) A default or event of default occurs under or in
connection with any other loan, advance, extension of credit, or
other financial accommodation now or hereafter made by Mortgagee
to Mortgagor, or under any other agreements, documents, or
instruments now or hereafter executed or delivered by Mortgagor
to Mortgagee.
(d) A default occurs under or in connection with any
other indebtedness or obligation secured by the Mortgaged
Property or any part thereof.
19. Remedies Upon Default. Upon the occurrence of an Event
of Default, or at any time during the continuance of an Event of
Default, Mortgagee, may at its election, declare the whole unpaid
principal sum and all accrued and unpaid interest thereon, and
all other sums payable under the Loan Documents, to be
immediately due and payable without notice or demand, and
Mortgagee may immediately and without demand exercise any of the
following rights and remedies, in addition to any of the rights
or remedies provided in the other Loan Documents or in other
documents held by Mortgagee as security for the indebtedness
evidenced by the Note, and such rights and remedies otherwise
<PAGE 18>
available to Mortgagee at law, in equity, by virtue of statute,
or otherwise, without further stay, any law, usage or custom to
the contrary notwithstanding:
(a) Mortgagee may either in person or by agent, with
or without bringing any action or proceeding, take possession of
the Premises, the Improvements and the Building Equipment and
exercise with respect thereto all rights of a mortgagee in
possession, and may collect all rents therefrom and, after
deducting all costs of collection and administration expense,
apply the net rents to the payment of taxes, water and sewer
rents, charges and claims, insurance premiums and all other
carrying charges, to the maintenance, repair or restoration of
the Mortgaged Property, or on account and in reduction of the
principal or interest secured by this Mortgage, in such order and
amounts as Mortgagee may elect in its sole discretion. Upon
taking possession, Mortgagee may do any acts which it deems
necessary or desirable to preserve the value, marketability or
rentability of the Premises, the Improvements, and the Building
Equipment, to increase the income therefrom and to protect the
security thereof, including sue for or otherwise collect the
rents, issues and profits thereof, including those past due and
unpaid. The making of such alteration, additions, improve-ments,
renovations, repairs and replacements to the Mortgaged Property
as Mortgagee may deem proper; the demolishing of any part or all
of the buildings, structures or other improvements on the
Premises which in the judgment of Mortgagee may be in an unsafe
condition and dangerous to life or property; and the remodeling
of such buildings, structures or other improvements so as to make
them available in whole or in part for any business, dwelling,
multiple dwelling or other purposes.
(b) Mortgagee may institute, notwithstanding the
provisions of any law or act of assembly to the contrary, any
appropriate action or proceeding to foreclose this Mortgage as if
any and all redemption periods had fully expired, and proceed to
judgment and execution for all sums secured by this Mortgage.
(c) MORTGAGOR IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
PROTHONOTARY, CLERK OF COURT OR ANY ATTORNEY OF ANY COURT OF
RECORD OF THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO
APPEAR FOR AND CONFESS JUDGMENT AGAINST MORTGAGOR, AS WELL AS
AGAINST ALL PERSONS CLAIMING UNDER, BY OR THROUGH MORTGAGOR, AND
IN FAVOR OF MORTGAGEE, AS OF ANY TERM, PAST, PRESENT OR FUTURE,
<PAGE 19>
WITH OR WITHOUT DECLARATION, FOR POSSESSION OR CONTROL OF THE
PREMISES AND THE IMPROVEMENTS TOGETHER WITH THE HEREDITAMENTS AND
BUILDING EQUIPMENT (WITHOUT THE NECESSITY OF FILING ANY BOND AND
WITHOUT ANY STAY OF EXECUTION OR APPEAL) FOR WHICH THIS
INSTRUMENT (OR A COPY THEREOF VERIFIED BY AFFIDAVIT) SHALL BE A
SUFFICIENT WARRANT; WHEREUPON, APPROPRIATE PROCESS TO OBTAIN
POSSESSION OR CONTROL OF THE PREMISES AND THE IMPROVEMENTS
TOGETHER WITH THE HEREDITAMENTS AND BUILDING EQUIPMENT (INCLUDING
LEVY AND EXECUTION) MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDING WHATSOEVER, MORTGAGOR RELEASING AND AGREEING
TO RELEASE MORTGAGEE AND SUCH ATTORNEYS FROM ALL ERRORS AND
DEFECTS WHATSOEVER IN ENTERING SUCH JUDGMENT OR IN CAUSING SUCH
WRIT OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON OR
CONCERNING THE SAME, PROVIDED THAT MORTGAGEE SHALL HAVE FILED IN
SUCH ACTION AN AFFIDAVIT MADE BY SOMEONE ON MORTGAGEE'S BEHALF
SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF SUCH
JUDGMENT ACCORDING TO THE TERMS OF THIS INSTRUMENT, OF WHICH
FACTS SUCH AFFIDAVIT SHALL BE PRIMA FACIE EVIDENCE; AND IT IS
EXPRESSLY AGREED THAT IF FOR ANY REASON AFTER ANY SUCH ACTION HAS
BEEN COMMENCED, THE SAME SHALL BE DISCONTINUED, MARKED SATISFIED
OF RECORD OR BE TERMINATED, OR POSSESSION OF THE PREMISES AND
IMPROVEMENTS TOGETHER WITH THE HEREDITAMENTS AND BUILDING
EQUIPMENT REMAINS IN OR IS RESTORED TO MORTGAGOR OR ANYONE
CLAIMING UNDER, BY OR THROUGH MORTGAGOR, MORTGAGEE MAY, WHENEVER
AND AS OFTEN AS MORTGAGEE SHALL HAVE THE RIGHT TO AGAIN TAKE
POSSESSION OF THE PREMISES AND THE IMPROVEMENTS TOGETHER WITH THE
HEREDITAMENTS AND BUILDING EQUIPMENT, BRING ONE OR MORE FURTHER
CONFESSIONS IN THE MANNER SET FORTH ABOVE TO RECOVER POSSESSION
OF THE PREMISES AND IMPROVEMENTS TOGETHER WITH THE BUILDING
EQUIPMENT, AND THE AUTHORITY AND POWER ABOVE GIVEN TO ANY SUCH
ATTORNEY SHALL EXTEND TO ALL SUCH FURTHER CONFESSIONS.
(d) Mortgagee, in its sole discretion, regardless of
whether a foreclosure suit has been commenced, shall be entitled
to the appointment of a receiver of the rents, without notice, to
the extent not prohibited by applicable law, with power to
collect the rents, issues and profits of the Mortgaged Property
as a matter of strict right and without notice, with power to
collect rents, issues and profits of the Mortgaged Property due
and coming due, both prior to and during the pendency of such
foreclosure suit, without regard to the value of the Mortgaged
Property or to the solvency of the Mortgagor or any other person
liable for the indebtedness secured by this Mortgage, and
regardless of whether Mortgagee has an adequate remedy at law.
<PAGE 20>
Such receiver may rent the Mortgaged Property, or any part
thereof, for such term or terms and on such other terms and
conditions as such receiver may see fit, collect all rents (which
term shall also include sums payable for use and occupation) and,
after deducting all costs of collection and administration
expense, apply the net rents to the payment of taxes, water and
sewer rents, other lienable charges and claims, insurance
premiums and all other carrying charges, and to the maintenance,
repair and restoration of the Mortgaged Property, or in reduction
of the principal or interest, or both, secured by this Mortgage,
in such order and amounts as such receiver may elect. Mortgagor,
for itself and its successors and assigns, waives any and all
defense to the application for a receiver and consents to such
appointment. The expenses, including receiver's fees, counsel
fees, costs and agent's compensation, incurred in connection with
the exercise of the powers contained in this Mortgage shall be
secured by this Mortgage.
(e) Mortgagee may exercise any and all remedies avail-
able to a secured party under the Uniform Commercial Code or
available at law, in equity, by virtue of statute or otherwise.
20. Security Agreement. Mortgagor agrees that the Building
Equipment, to the extent permitted by law, is part of the
Premises and is subject to the lien of this Mortgage, and this
Mortgage, in the event and to the extent that any Building
Equipment shall not be deemed to be part of the Premises, shall
constitute a security agreement under the Uniform Commercial
Code. Mortgagor shall execute and deliver to Mortgagee on
demand, and irrevocably appoints Mortgagee or any officer of
Mortgagee the attorney-in-fact of Mortgagor (which appointment is
agreed to be coupled with an interest) to execute, deliver and
file such financing statements and other instruments as Mortgagee
may require in order to perfect and maintain such security
interest under the Uniform Commercial Code. A carbon,
photographic or other reproduction of this Mortgage shall be
sufficient as a financing statement for filing purposes under the
Uniform Commercial Code.
21. Construction Mortgage. The indebtedness secured by
this Mortgage is to be advanced, in part, in connection with the
construction of certain improvements upon the Premises pursuant
to the Loan Agreement, the terms and conditions of which are
incorporated in this Mortgage by this reference with the same
<PAGE 21>
force and effect as it more fully set forth in this Mortgage. It
is understood and agreed that the Mortgage covers present and
future advances, in the aggregate amount secured by this
Mortgage, made by Mortgage to or for the benefit of Mortgagor
pursuant to the Loan Agreement and the lien of such future
advances shall relate back to the date of this Mortgage. This
Mortgage constitutes a "construction mortgage" as defined in
Section 9-313 of the Uniform Commercial Code and secures an
obligation incurred for the construction of the improvements.
22. Purchase Money Mortgage. The indebtedness secured by
this Mortgage was incurred in part to finance the acquisition of
a portion of the Mortgaged Property. This Mortgage constitutes a
"purchase money mortgage" and shall be entitled to all benefits
as such under the laws of the State of New Jersey and all other
applicable laws.
23. Future Advances.
(a) This Mortgage shall constitute security for any
and all past, present, and future loans, advances, extensions of
credit, or other financial accommodations made by Mortgagee to
Mortgagor, or to third parties upon the surety, guaranty,
endorsement, or other accommodation of Mortgagor, as well as for
any and all other obligations and liabilities of any kind of
Mortgagor o Mortgagee, and for all interest thereon; provided,
however, that the maximum amount of indebtedness secured by this
Mortgage shall not exceed the principal sum of $3,500,000.00 plus
all accrued and unpaid interest, plus all costs and expenses
incurred or assumed by Mortgagee under this Mortgage (including,
without limitations, costs and expenses described in paragraph
(b), below).
(b) In addition to and not in limitation of any other
provisions in this Mortgage, it is understood and agreed that
this Mortgage shall constitute security for the unpaid balance of
advances made, with respect to the Mortgaged Property, for the
payment of taxes, assessments, maintenance charges, insurance
premiums, or costs incurred for the protection of the Mortgaged
Property or the lien of this Mortgage, expenses incurred by
Mortgagor by reason of default by Mortgagor under this Mortgage,
and advances made under the Loan Agreement to enable completion
of the improvements for which the loan was originally made.
<PAGE 22>
24. Additional Notices. In addition to and not in
limitation of any other notice requirements in this Mortgage,
Mortgagor shall give Mortgagee prompt written notice of the
occurrence of any of the following: (i) receipt from any govern-
mental authority of any notice or other communication relating to
the structure, use or occupancy of the Mortgaged Property or any
part thereof; (ii) change in the occupancy of the Mortgaged
Property or any part thereof; (iii) commencement of any
litigation or receipt of notice of any threat of litigation
affecting the Mortgaged Property or any part thereof; (iv)
receipt of any notice from any tenant or subtenant of the
Mortgaged Property or any part thereof; (v) the occurrence of a
default under the terms of any agreements affecting or relating
to the Mortgaged Property or any part thereof; (vi) the
occurrence of a fire or other casualty causing damage to the
Mortgaged Property or any part thereof; (vii) receipt of notice
of eminent domain proceedings or condemnation of the Mortgaged
Property or any part thereof; and (viii) receipt of any notice of
the imposition of, or of threatened or actual execution on, any
lien on or security interest in the Mortgaged Property or any
part thereof.
25. Miscellaneous.
(a) No extension or indulgence granted to Mortgagor,
and no alteration, change or modification of the Loan Documents
consented or agreed to by Mortgagee, and no other act or omission
of Mortgagee, including the taking of additional security or the
release of any security, shall constitute a release of the lien
and obligation of this Mortgage or be interposed as a defense
against the enforcement of this Mortgage, except an act of
Mortgagee which constitutes an express release and satisfaction
of the Note and all other obligations. This Mortgage may not be
changed orally or by any course of dealing between Mortgagor and
Mortgagee, but only by an agreement in writing duly executed on
behalf of the party against whom enforcement of any waiver,
change, modification or discharge is sought.
(b) All rights and remedies granted by this Mortgage
or in the other Loan Documents or otherwise available at law, in
equity, by statute, or otherwise, shall be cumulative and concur-
rent and may be pursued separately, successively, or concurrently
at Mortgagee's sole option, and may be exercised from time to
<PAGE 23>
time and as often as occasion therefor shall arise until the
indebtedness secured by this Mortgage is paid in full. Mortgagee
may resort to any security it holds in such order and manner as
Mortgagee deems fit and may sell at any foreclosure sale on this
Mortgage the Premises, Improvements, and Building Equipment in
one parcel or in such parcels as Mortgagee elects in its sole
discretion; the fore-closure sale shall pass title to all such
property; and Mortgagee may bid and become the purchaser of the
Mortgaged Property or any part thereof at any foreclosure sale
under this Mortgage.
(c) Any part of the Mortgaged Property may be released
by Mortgagee without affecting the lien, security interest and
assignment of this Mortgage against the remainder of the
Mortgaged Property. The taking of additional security, or the
extension or renewal of the indebtedness evidenced by the Note or
any part thereof, shall not release or impair the lien, security
interest and other right granted by this Mortgage, or affect the
liability of any endorser or guarantor or improve the right of
any permitted junior lienholder; and this Mortgage, as well as
any instrument given to secure any renewal or extension of the
indebtedness evidenced by the Note, or any part thereof, shall be
and remain a first and prior lien, except as otherwise provided
in this Mortgage, on all of the Mortgaged Property not expressly
released until the Note is paid in full.
(d) In the event that Mortgagee shall refer any or all
of the Loan Documents to counsel because of any default under the
Loan Documents, Mortgagor shall reimburse Mortgagee for
attorneys' fees and costs incurred by Mortgagee. If judgment is
entered under the Note or any of the other Loan Documents, or
foreclosure proceedings are commenced upon this Mortgage, then
reasonable attorneys' fees shall be payable and shall be
recovered in addition to all principal, interest and other
recoverable sums then due, in addition to costs of suit. If
Mortgagee shall become a party, whether as plaintiff or
defendant, to any suit or legal proceeding affecting the lien
created by this Mortgage, Mortgagor shall pay to Mortgagee on
demand its costs, expenses, and attorneys' fees in such suit or
proceeding.
(e) To the extent permitted by law, Mortgagor waives
any right pertaining to the marshalling of assets, the exemption
of homestead, the administration of estates of decedents, or
<PAGE 24>
other matter to defeat, reduce or affect the right of Mortgagee
to sell the Mortgaged Property for the collection of the
indebtedness evidenced by the Note (without any prior or
different resort for collection), or the right of Mortgagee to
the payment of such indebtedness out of the proceeds of sale of
the Mortgaged Property in preference to every other person and
claimant.
(f) To the extent that Mortgagee pays any outstanding
lien, charge or encumbrance affecting the Mortgaged Property,
such proceeds shall be deemed to have been advanced by Mortgagee
at Mortgagor's request, and Mortgagee shall be subrogated to all
rights, interests and liens owned or held by the owner or holder
of such outstanding liens, charges and encumbrances, irrespective
of whether such liens, charges or encumbrances are released of
record; provided, however, that the terms and provisions of this
Mortgage shall govern the rights and remedies of Mortgagee and
shall supersede the terms, provisions, rights, and remedies of
the lien or liens to which Mortgagee is subrogated under this
paragraph (f).
(g) Nothing contained in this Mortgage is intended to
create any partnership, joint venture or association between
Mortgagor and Mortgagee, or in any way make Mortgagee a co-
principal with Mortgagor with reference to the Mortgaged
Property.
(h) If at any time Mortgagee determines that any
further instruments, documents, acts or things are necessary or
desirable to vest or confirm any right or remedy granted in this
Mortgage, Mortgagor shall execute and deliver any instrument or
document and do or cause to be done any act or thing deemed
necessary or desirable by Mortgagee for any purpose.
(i) All written notices to be given by either party
to the other party shall be given by personal delivery or sent
by registered or certified mail, return receipt requested,
postage prepaid, such notices shall be deemed to be effective the
date personally delivered or deposited in the United States
mails. Any notice by Mortgagor to Mortgagee shall be addressed
to Mortgagee at its place of business, 732 Montgomery Avenue,
Narberth, Pennsylvania 19072, Attn: Lee Tabas, or at such
address as Mortgagee may specify in writing to Mortgagor. Any
notice by Mortgagee to Mortgagor shall be addressed to Mortgagor
<PAGE 25>
at 600 Third Avenue, Kingston, Pennsylvania 18704, Attn: Joshua
Kane, Senior Vice President or at such address as Mortgagor may
specify in writing to Mortgagee.
(j) To the extent permitted by law, Mortgagor waives
and releases all errors, defects and imperfections in any
proceedings instituted by Mortgagee under the terms of this
Mortgage and the Note, as well as all benefits that might accrue
to Mortgagor by virtue of any present or future laws exempting
the Mortgaged Property, or any other property, real or personal,
or any part of the proceeds arising from any sale of any such
property, from attachment, levy or sale under execution, or
providing for any stay of execution, exemption from civil process
or extension of time for payment.
(k) All provisions under any act, statute or
regulation of the State of New Jersey or the Commonwealth of
Pennsylvania now in effect or hereafter passed to relieve
Mortgagor in any manner from the obligations assumed by this
Mortgage or requiring the foreclosure and sale of the Mortgaged
Property before the attachment of or execution against other
property, real or personal, of Mortgagor, are expressly waived in
favor of the obligee on the Note or this Mortgage.
(l) At the sole option of Mortgagee, this Mortgage
shall become subject and subordinate, in whole or in part (but
not with respect to priority of entitlement to any award in
condemnation) to any and all leases of all or any part of the
Mortgaged Property, upon the execution by Mortgagee and recording
thereof any time hereafter, in the appropriate office for the
recording of deeds in and for the county or district wherein the
Mortgaged Property is situated, of a unilateral declaration to
that effect.
(m) If any term or provision of this Mortgage or the
application thereof to any person or circumstances should, to any
extent be invalid or unenforceable, the remainder of this
Mortgage, and the application of such term or provision to
persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected, and each term
and provision of this Mortgage shall be valid and shall be
enforced to the fullest extent permitted by law.
<PAGE 26>
(n) This Mortgage is made solely for the benefit of
Mortgagee and its successors and its assigns. No purchaser of
the Premises or any tenant under any lease the Premises, nor any
other person, shall have standing to bring any action against
Mortgagee as a result of this Mortgage, or to assume that
Mortgagee will exercise any remedies provided in this Mortgage,
and no person other than Mortgagee shall under any circumstances
be deemed to be a beneficiary of any provision of this Mortgage.
(o) This Mortgage shall be binding upon the successors
and assigns of Mortgagor. The use of the terms "Mortgagor" and
"Mortgagee" shall be deemed to include the respective successors
and assigns of the parties.
(p) Whenever used in this Mortgage, unless the context
clearly indicates a contrary intent: (i) the use of any gender
shall include all genders; (ii) the singular number shall include
the plural, and the plural the singular, as the context may
require; and (iii) the word "including" shall mean "including
without limitation".
(q) Mortgagor shall give advance notice in writing to
Mortgagee of any proposed change in Mortgagor's name, identity,
or structure, and shall execute and deliver to Mortgagee, prior
to or concurrently with the occurrence of any such change, all
additional financing statements and other documents and
instruments that Mortgagee may require to establish and maintain
the validity and priority of Mortgagee's security interest with
respect to any of the Mortgaged Property.
(r) MORTGAGOR WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY PROCEEDING IN
ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS MORTGAGE OR THE
OTHER LOAN DOCUMENTS, AND MORTGAGOR AGREES THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
(s) This Mortgage shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania,
except to the extent that rights and remedies which relate to
realizing upon the Mortgaged Property are governed by the laws of
the State of Delaware.
<PAGE 27>
MORTGAGOR ACKNOWLEDGES RECEIPT, WITHOUT CHARGE, OF A TRUE
AND CORRECT COPY OF THIS MORTGAGE.
IN WITNESS WHEREOF, Mortgagor has duly executed this
Mortgage on the day and year first above written.
Witness: MARK CENTERS LIMITED PARTNERSHIP
By: Mark Centers Trust,
General Partner
/s/ Alexander S. Kroll /s/ Joshua Kane
Senior Vice President and
Chief Financial Officer
<PAGE 28>
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF PHILADELPHIA :
On this 28th day of January, 1998, before me, a Notary
Public, personally appeared Joshua Kane, who acknowledged that he
is the Senior Vice President of Mark Centers Trust, general
partner of Mark Centers Limited Partnership, a limited
partnership, and that being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set may hand and
official seal.
/s/ Elaine T. Vidovich
Notary Public
<PAGE 29>
EXHIBIT A
LEGAL DESCRIPTION
Attached
<PAGE 30>
Land Title Agency, Inc.
464 Valley Brook Avenue
Lyndhurst, NJ 07071
(201) 804-8844
Title No. 97-LT-0552.B
DESCRIPTION
ALL that certain tract or parcel of land and premises, situate,
lying and being in the Township of Stafford, in the County of
Ocean, and State of New Jersey, more particularly described as
follows:
BEING known and designated as Lot 1.05 Block 77 as shown on map
entitled "Major Subdivision Manahawkin Village, Tax Map Lot 1.01
Block 77, Stafford Township, Ocean County, N.J." dated July 29,
1993 and revised to September 21, 1993 by Owsen, Little &
Associates, Inc., Engineers, Planners, Surveyors, and filed in
the Ocean County Clerk's Office at Toms River, New Jersey, on
December 13, 1993 as Map No. G-2499.
Together with any rights, benefits and/or interest acquired in
Reciprocal Easement and Operation Agreement recorded in Deed Book
5042 page 217.
ALSO being described pursuant to a survey drawn by Kenderian
Zilinski Associates dated November 24, 1997 as follows:
BEGINNING at a concrete monument found in the northerly line of
Lot 1.06, said point also being the common corner of Tax Map Lots
1.05 and 1.04, Block 77, and running thence
(1) South 58 degrees 30 minutes 30 seconds West 304.24 to a
point; thence
(2) South 30 degrees 30 minutes 30 seconds West 85.00 feet to a
point; thence
(3) South 47 degrees 49 minutes 41 seconds West 366.92 feet to a
point; thence
<PAGE 31>
(4) North 31 degrees 29 minutes 30 seconds West along the common
line of Lots 1.07 and 1.05, Block 77 a distance of 183.89
feet to a point; thence
(5) North 52 degrees 00 minutes 00 seconds West along the common
line of Lots 1.05 and 1.07, Block 77 a distance of 166.68
feet to a point being the common line corner of Lots 1.04
and 1.05, Block 77; thence
(6) North 58 degrees 30 minutes 30 seconds East along the common
line of Lots 1.04 and 1.05, Block 77 a distance of 223.87
feet to an angle; thence
(7) North 12 degrees 57 minutes 56 seconds West still along the
common line of Lots 1.04 and 1.05, Blcok 77 a distance of
105.30 feet to a point; thence
(8) North 77 degrees 02 minutes 04 seconds East still along the
common line of Lots 1.04 and 1.05, Block 77 a distance of
199.30 feet to an angle point; thence
(9) South 12 degrees 57 minutes 56 seconds East still along the
common line of Lots 1.04 and 1.05, Block 77 a distance of
8.70 feet to an angle point; thence
(10) North 77 degrees 02 minutes 04 seconds East still along the
common line of Lots 1.04 and 1.05, Block 77 a distance of
312.22 feet to an angle point; thence
(11) North 12 degrees 57 minutes 56 seconds West still along the
common line of Lots 1.04 and 1.05; Block 77 a distance of
18.00 feet to a point; thence
(12) North 77 degrees 02 minutes 04 seconds East still along the
common line of Lots 1.04 and 1.05, Block 77 a distance of
73.00 feet to an angle point; thence
(13) South 12 degrees 57 minutes 56 seconds East still along the
common line of Lots 1.04 and 1.05, Block 77 a distance of
30.32 feet to the point of curvature; thence
(14) still along the common line of Lots 1.04 and 1.05, Block 77
on a curve to the left having a radius of 128.00 feet, an
arc length of 41.39 feet (central angle of 18 degrees 31
<PAGE 32>
minutes 34 seconds) (chord bearing South 22 degrees 13
minutes 43 seconds East, 41.21 feet) to the point of
tangency; thence
(15) South 31 degrees 29 minutes 30 seconds East still along the
common line of Lots 1.04 and 1.05, Block 77 a distance of
85.63 feet to the point and place of BEGINNING.
FOR INFORMATION ONLY:
Being known as lot 1.05 in Block 77 on the Official Tax Map of
the Township of Stafford in the County of Ocean and State of New
Jersey.
ALL that certain tract or parcel of land and premises, situate,
lying and being in the Township of Stafford, in the County of
Ocean, and State of New Jersey, more particularly described as
follows:
BEGINNING at a concrete monument found in the southwesterly line
of Washington Avenue (60 foot R.O.W.). Siad point also being the
common corner of Lots 1.04 and 1.06, Block 77; and running thence
(1) South 31 degrees 29 minutes 30 seconds along the
southwesterly line of Washington Avenue, a distance of
232.26 feet to the point being the common corner of Lots 2 and
1.06, Block 77; thence
(2) South 28 degrees 17 minutes 43 seconds West, along the
common line of Lots 2 and 1.06, Block 77 a distance of
250.00 feet to an angle point; thence
(3) South 31 degrees 29 minutes 30 seconds East, still along the
aforesaid common line of Lots 2 and 1.06, Block 77 a
distance of 12.00 feet to a point being the common corner of
Lots 1.06 and 1.07, Block 77; thence
(4) South 58 degrees 30 minutes 30 seconds West along the common
line of Lots 1.06 and 1.07, Block 77 a distance of 729.57
feet to an angle point; thence
<PAGE 33>
(5) North 31 degrees 29 minutes 30 seconds West, still along the
common line of Lots 1.06 and 1.07, Block 77 a distance of
247.15 feet to a point being the common corner of Lots 1.06
and 1.05, Block 77; thence
(6) North 47 degrees 49 minutes 41 seconds East, along the
common line of Lots 1.06 and 1.05, Block 77 a distance of
366.92 feet to an angle point; thence
(7) North 30 degrees 30 minutes 30 seconds East, still along the
common line of Lots 1.06 and 1.05, Block 77, a distance of
85.00 feet to a concrete monument found at an angle point;
thence
(8) North 58 degrees 30 minutes 30 seconds East, still along the
common line of Lots 1.06 and 1.05 then 1.04, Block 77, a
distance of 375.00 feet to a concrete monument found at
angle point; thence
(9) North 52 degrees 10 minutes 05 seconds East, along the
common line of Lots 1.06 and 1.04, Block 77 a distance of
135.83 feet to the point and place of BEGINNING.
The above description is in accordance with a survey drawn by
Kenderian Zilinski Associates dated November 24, 1997.
FOR INFORMATION ONLY:
Being known as lot 1.06 (part of Lot 1.02) in Block 77 on the
Official Tax Map of the Township of Stafford in the County of
Ocean and State of New Jersey.
Being also known as South New Jersey Route 72.