Exhibit 10.3
PREPARED BY: John W. Verlaque, Esquire
RETURN TO: Post-Closing, PA4354
Wachovia Bank, National Association
Commercial Loan Services
123 South Broad Street, MBO, 9th Floor
Philadelphia, Pennsylvania 19109
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT and FINANCING STATEMENT
This MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT and FINANCING
STATEMENT (hereafter referred to as "Mortgage") made as of October 28, 2003, by
and between, A.C. Moore Urban Renewal, LLC, whose address is 500 University
Court, Blackwood, New Jersey 08012 ("Mortgagor") and Wachovia Bank, National
Association, a national banking association, whose address is 190 River Road,
Summit, New Jersey 07901 ("Bank").
W I T N E S S E T H :
To secure payment and performance of obligations under Promissory Notes
(the "Notes"), of even date, in the original principal balance of $22,500,000
and $7,500,000, made by Mortgagor and others (collectively, the Borrower") and
payable to Bank, this Mortgage, any present or future Letters of Credit issued
by Bank for the account of any Borrower, other loan documents as defined in the
Notes (the "Loan Documents"), and swap agreements (as defined in 11 U.S.C. ss.
101) between Bank and any Borrower, and any renewals, extensions, novations, or
modifications of the foregoing (collectively the "Obligations"), and in
consideration of these premises and for other consideration, Mortgagor does
mortgage, grant and convey unto Bank, its successors and assigns, all of
Mortgagor's right, title and interest now owned or hereafter acquired in and to
each of the following (collectively, the "Property"): (i) all those certain
tracts of land known as the A.C. Moore Distribution Facility located on Block
2601, Lot 21.04, as so designated on the Tax Map of the Town of Winslow, County
of Camden, State of New Jersey described in EXHIBIT A attached hereto and made
part hereof (the "Land"); (ii) all buildings and improvements now or hereafter
erected on the Land; (iii) all fixtures, machinery, equipment and other articles
of real, personal or mixed property attached to, situated or installed in or
upon, or used in the operation or maintenance of, the Land or any buildings or
improvements situated thereon, whether or not such real, personal or mixed
property is or shall be affixed to the Land; (iv) all building materials,
building machinery and building equipment delivered on site to the Land during
the course of, or in connection with, any construction, repair or renovation of
the buildings and improvements situated or to be situated thereon, including any
equipment or machinery acquired with the proceeds of the $7,500,000 Promissory
Note; (v) all leases, licenses or occupancy agreements of all or any part of the
Land and all extensions, renewals, and modifications thereof, and any options,
rights of first refusal or guarantees relating thereto; all rents, income,
revenues, security deposits, issues, profits, awards and payments of any kind
payable under the leases or otherwise arising from the Land; (vi) all contract
rights, accounts receivable and general intangibles relating to the Land or the
use, occupancy, maintenance, construction, repair or operation thereof; all
management agreements, franchise agreements, utility agreements and deposits;
all maps, plans, surveys and specifications; all warranties and guaranties; all
permits, licenses and approvals; and all insurance policies; (vii) all estates,
rights, tenements, hereditaments, privileges, easements, and appurtenances of
any kind benefiting the Land; all means of access to and from the Land, whether
public or private; and all water and mineral rights; and (viii) all "Proceeds"
of any of the above-described property, which term shall have the meaning given
to it in the Uniform Commercial Code of the jurisdiction where this Mortgage is
recorded (the "UCC"), whether cash or non-cash, and including insurance proceeds
and condemnation awards; and all replacements, substitutions and accessions
thereof.
In the event that Mortgagor is the owner of a leasehold estate with
respect to any portion of the Property and Mortgagor obtains a fee estate in
such portions of the Property, then, such fee estate shall automatically, and
without further action of any kind on the part of the Mortgagor, be and become
subject to the security title and lien of this Agreement.
TO HAVE AND TO HOLD the Property and all the estate, right, title and
interest, in law and in equity, of Mortgagor's in and to the Property unto Bank,
its successors and assigns, forever.
MORTGAGOR WARRANTS AND REPRESENTS that Mortgagor is lawfully seized of
the Property, in fee simple, absolute, that Mortgagor has the legal right to
convey and encumber the same, and that the Property is free and clear of all
liens and encumbrances, except for those liens and encumbrances described in
EXHIBIT B attached hereto and made a part hereof (the "Permitted Liens").
Mortgagor further warrants and will forever defend all and singular the Property
and title thereto to Bank and Bank's successors and assigns, against the lawful
claims of all persons whomsoever.
PROVIDED ALWAYS that if (i) all the Obligations (including without
limitation, all termination payments and any other amounts due under or in
connection with any swap agreements (as defined in 11 U.S.C. ss. 101) secured
hereunder) are paid in full, and (ii) any and all swap agreements (as defined in
11 U.S.C. ss. 101) secured hereunder have matured or been terminated, then this
Mortgage and the estate hereby created shall cease and be null, void, and
canceled of record.
To protect the security of this Mortgage, Mortgagor further represents
and agrees with Bank as follows:
Payment of Obligations. That the Obligations shall be timely paid and
performed.
Future Advances. This Mortgage is given to secure not only existing
Obligations, but also future advances, including swap agreements, plus all
interest, costs, reimbursements, fees and expenses due under this Mortgage.
Grant of Security Interest in Personal Property. This Mortgage
constitutes a security agreement under the UCC and shall be deemed to constitute
a fixture financing statement. Mortgagor hereby grants a security interest in
any personal property included in the Property. On request of Bank, Mortgagor
will execute one or more Financing Statements in form satisfactory to Bank and
will pay all costs and expenses of filing the same in all public filing offices,
where filing is deemed desirable by Bank. Bank is authorized to file Financing
Statements relating to the Property without Mortgagor's signature where
permitted by law. Mortgagor appoints Bank as its attorney-in-fact to execute
such documents necessary to perfect Bank's security interest on Mortgagor's
behalf. The appointment is coupled with an interest and shall be irrevocable as
long as any Obligations remain outstanding.
Nothing herein obligates Bank to provide credit in excess of the Obligations.
Leases, Subleases and Easements. Mortgagor shall maintain, enforce and
cause to be performed all of the terms and conditions under any lease, sublease
or easement which may constitute a portion of the Property. Mortgagor shall not,
without the consent of Bank, which consent shall not be unreasonably withheld or
delayed, enter into any new lease or sublease of all or any portion of the
Property with any party other than an Affiliate or Subsidiary of Borrower, agree
to the cancellation or surrender under any lease of all or any portion of the
Property, agree to prepayment of rents, issues or profits (other than rent paid
at the signing of a lease or sublease), modify any such lease or sublease so as
to shorten the term, decrease the rent, accelerate the payment of rent, or
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change the terms of any renewal option; and any such purported new lease,
sublease, cancellation, surrender, prepayment or modification made without the
consent of Bank shall be void as against Bank.
Required Insurance. Mortgagor shall maintain with respect to the
Property: (i) during construction of any improvements on the Property,
"all-risk" builders risk insurance which must include windstorm, hail damage,
fire and vandalism (non-reporting Completed Value with Special Cause of Loss
form), in an amount not less than the completed replacement value of the
improvements under construction, naming Bank as mortgagee and loss payee, and
endorsed to provide that occupancy by any person shall not void such coverage;
(ii) upon completion of construction and at all other times, insurance against
loss or damage by fire and other casualties and hazards by insurance written on
an "all risks" basis, including malicious mischief coverage, in an amount not
less than the replacement cost thereof, including coverage for loss of rents or
business interruption if applicable, naming Bank as loss payee and mortgagee;
(iii) if the Property is required to be insured pursuant to the National Flood
Reform Act of 1994, and the regulations promulgated thereunder, flood insurance
is required in the amount equal to the lesser of the loan amount or maximum
available under the National Flood Insurance Program, but in no event should the
amount of coverage be less than the value of the improved structure, naming Bank
as mortgagee and loss payee. If, after closing, the Property (or any part
thereof) is remapped and if the vertical improvements are determined to be
located in a special flood hazard area, Mortgagor must obtain and maintain a
flood insurance policy. If, within forty-five (45) days of receipt of
notification from Bank that the Property has been reclassified by FEMA as being
located in a special flood hazard area, Mortgagor has not provided sufficient
evidence of flood insurance, Bank is mandated under federal law to purchase
flood insurance on behalf of Mortgagor, and Bank will add the associated costs
to the principal balance of the Note. If the land or any portion thereof is
located in a special flood hazard area, this Agreement may be terminated by Bank
at its sole option; (iv) as applicable, insurance which complies with the
workers' compensation and employers' liability laws of all states in which
Mortgagor shall be required to maintain such insurance; and (v) liability
insurance providing coverage in such amount as Bank may reasonably require but
in no event less than $1,000,000.00 combined single limit, naming Bank as an
additional insured; and (vi) such other insurance as Bank may reasonably require
from time to time.
All property insurance policies shall contain an endorsement or
agreement by the insurer in form satisfactory to Bank that any loss shall be
payable in accordance with the terms of such policy notwithstanding any act or
negligence of Mortgagor and the further agreement (within both the property and
liability policies) of the insurer waiving rights of subrogation against Bank,
and rights of set-off, counterclaim or deductions against Mortgagor.
All insurance policies shall be in form, provide coverages, be issued
by companies and be in amounts satisfactory to Bank. At least 30 days prior to
the expiration of each such policy, Mortgagor shall furnish Bank with evidence
satisfactory to Bank that such policy has been renewed or replaced or is no
longer required hereunder. All such policies shall provide that the policy will
not be canceled or materially amended without at least 30 days prior written
notice to Bank. In the event Mortgagor fails to provide, maintain, keep in
force, and furnish to Bank the policies of insurance required by this paragraph,
Bank may procure such insurance or single-interest insurance in such amounts, at
such premium, for such risks and by such means as Bank chooses, at Mortgagor's
expense; provided however, Bank shall have no responsibility to obtain any
insurance, but if Bank does obtain insurance, Bank shall have no responsibility
to assure that the insurance obtained shall be adequate or provide any
protection to Mortgagor.
Insurance Proceeds. After occurrence of any loss in excess of $250,000,
uninsured, to any of the Property, Mortgagor shall give prompt written notice
thereof to Bank.
In the event of such loss all insurance proceeds, including unearned
premiums, shall be payable to Bank, and Mortgagor hereby authorizes and directs
any affected insurance company to make payment of such proceeds directly to Bank
and not to Bank and Mortgagor jointly. Mortgagor appoints Bank as its
attorney-in-fact to receive and endorse any insurance proceeds to Bank, which
appointment is coupled with an interest and shall be irrevocable as long as any
Obligations remain unsatisfied. Mortgagor shall pay the costs of collection,
including attorneys' fees, of insurance proceeds payable on account of such
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damage or destruction. Mortgagor shall have no claim against the insurance
proceeds, or be entitled to any portion thereof, and all rights to the insurance
proceeds are hereby assigned to Bank as security for payment of the Obligations.
In the event of any damage to or destruction of the Property, Bank
shall have the option of applying or paying all or part of the insurance
proceeds to (i) the Obligations in such order as Bank may determine, (ii)
restoration, replacement or repair of the Property in accordance with Bank's
standard construction loan disbursement conditions and requirements, or (iii)
Mortgagor. Nothing herein shall be deemed to excuse Mortgagor from restoring,
repairing and maintaining the Property as required herein.
Notwithstanding the foregoing, provided that all of the following
conditions are fully satisfied by Mortgagor, Bank shall disburse insurance
proceeds for repair and restoration of the Property in accordance with Bank's
standard construction loan disbursement conditions and requirements: (i) no
Default or event which, with the giving of notice or the passage of time, or
both, would constitute a Default shall have occurred; (ii) Mortgagor shall have
delivered evidence satisfactory to Bank that the Property can be fully repaired
and restored at least six (6) months prior to the maturity of the Obligations;
(iii) no material lease of the Property (i.e., any lease for more than 25% of
the leasable square footage) (as determined by Bank) is cancelable or terminable
by the tenant or Mortgagor on account of the casualty or, if it is, the tenant
or Mortgagor (as applicable) has waived in writing its right to cancel; (iv) the
work is performed under a fixed price or guaranteed maximum price contract
satisfactory to Bank in accordance with plans and specifications and a budget
reasonably satisfactory to Bank in accordance with all legal requirements; (v)
Mortgagor shall have deposited with Bank for disbursement in the connection with
the restoration the greater of: (A) the applicable deductible under the
insurance policies covering the loss; or (B) the amount by which the cost of
restoration of the Property to substantially the same value, condition and
character as existed prior to such damage is estimated by Bank to exceed the net
insurance proceeds; (vi) Mortgagor has paid as and when due all of Bank's costs
and expenses incurred in connection with the collection and disbursement of
insurance proceeds, including without limitation, inspection, monitoring,
engineering and legal fees. If not paid on demand, at Bank's option, such costs
may be deducted from the disbursements made by Bank or added to the sums secured
by this Mortgage; and (vii) such other terms and conditions as Bank may
reasonably require.
Impositions; Escrow Deposit. Mortgagor will pay all taxes, levies,
assessments and other fees and charges imposed upon or which may become a lien
upon the Property under any law or ordinance (all of the foregoing collectively
"Impositions") before they become delinquent and in any event in the same
calendar year in which they first become due. Upon a Default and request of
Bank, Mortgagor shall add to each periodic payment required under the Note the
amount estimated by Bank to be sufficient to enable Bank to pay, as they come
due, all Impositions and insurance premiums which Mortgagor is required to pay
hereunder. Payments requested under this provision shall be supplemented or
adjusted as required by Bank from time to time. Such funds may be commingled
with the general funds of Bank and shall not earn interest. Upon the occurrence
of a Default, Bank may apply such funds to pay any of the Obligations.
Use of Property. Mortgagor shall use and operate, and require its
lessees or licensees to use and operate, the Property in compliance with all
applicable laws (including, for example, the Americans with Disabilities Act and
the Fair Housing Act) and ordinances, covenants, and restrictions, and with all
applicable requirements of any lease or sublease now or hereafter affecting the
Property. Mortgagor shall not permit any unlawful use of the Property or any use
that may give rise to a claim of forfeiture of any of the Property. Mortgagor
shall not allow changes in the stated use of Property from that disclosed to
Bank at the time of execution hereof, except those changes for which
governmental approval is not required. Mortgagor shall not initiate or acquiesce
to a zoning change of the Property without prior notice to, and written consent
of, Bank.
Maintenance, Repairs and Alterations. Mortgagor shall keep and maintain
the Property in good condition and repair and fully protected from the elements
to the reasonable satisfaction of Bank. Mortgagor will not remove, demolish or
structurally alter any of the buildings or other improvements on the Property
(except such alterations as may be required by laws, ordinances or regulations)
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without the prior written consent of Bank. Mortgagor shall promptly notify Bank
in writing of any material loss, damage or adverse condition affecting the
Property.
Eminent Domain. Should the Property or any interest therein be taken or
damaged by reason of any public use or improvement or condemnation proceeding
("Condemnation"), or should Mortgagor receive any written notice or other
information regarding such Condemnation, Mortgagor shall give prompt written
notice thereof to Bank. Bank shall be entitled to all compensation, awards and
other payments or relief granted in connection with such Condemnation up to the
amount of the Obligations. All compensation, awards, and damages awarded to
Mortgagor related to any Condemnation (the "Proceeds") are hereby assigned to
Bank and Mortgagor agrees to execute such further assignments of the Proceeds as
Bank may require. Bank shall have the option of applying or paying the Proceeds
in the same manner as insurance proceeds as provided herein. Mortgagor appoints
Bank as its attorney-in-fact to receive and endorse the Proceeds to Bank, which
appointment is coupled with an interest and shall be irrevocable as long as any
Obligations remain unsatisfied.
Environmental Condition of Property and Indemnity. Mortgagor warrants
and represents to Bank, except as reported by Mortgagor to Bank in writing,
that: (i) Mortgagor has inspected and is familiar with the environmental
condition of the Property; (ii) the Property and Mortgagor, and any occupants of
the Property, are in compliance with and shall continue to be in compliance with
all applicable federal, state and local laws and regulations intended to protect
the environment and public health and safety as the same may be amended from
time to time ("Environmental Laws"); (iii) the Property is not and, to
Mortgagor's knowledge, has never been used to generate, handle, treat, store or
dispose of, in any quantity, oil, petroleum products, hazardous or toxic
substances, hazardous waste, regulated substances or hazardous air pollutants
("Hazardous Materials") in violation of any Environmental Laws; (iv) to
Mortgagor's knowledge, no Hazardous Materials (including asbestos or lead paint
in any form) are located on or under the Property or emanate from the Property;
(v) to Mortgagor's knowledge, there are no unregistered underground storage
tanks on the Property that are subject to any underground storage tank
registration laws or regulations; (vi) no notice has been received by Mortgagor
with regard to any Hazardous Material on the Property; (vii) no action,
investigation or proceeding is pending or to Mortgagor's knowledge threatened
which seeks to enforce any right or remedy against Mortgagor or the Property
under any Environmental Law; and (viii) all licenses, permits and other
governmental or regulatory actions necessary for the Property to comply with
Environmental Laws shall be obtained and maintained and Mortgagor shall assure
compliance therewith.
Mortgagor shall not permit any use of the Property or activity on the
Property that constitutes an "Industrial Establishment" as defined in the New
Jersey Industrial Site Recovery Act without prior written consent of Bank.
Further, Mortgagor represents to Bank that a portion of the Property is a
protected wetland. Mortgagor agrees to notify Bank immediately upon receipt of
any citations, warnings, orders, notices, consent agreements, process or claims
alleging or relating to violations of any Environmental Laws or to the
environmental condition of the Property and shall conduct and complete all
investigations and all cleanup actions necessary to comply with the
Environmental Laws and to remove, in accordance with Environmental Laws, any
Hazardous Material from the Property.
Mortgagor shall indemnify, hold harmless, and defend Bank from and
against any and all damages, penalties, fines, claims, suits, liabilities,
costs, judgments and expenses, including reasonable attorneys', consultants' or
experts' fees of every kind and nature incurred, suffered by or asserted against
Bank as a direct or indirect result of: (i) representations made by Mortgagor in
this Section being or becoming untrue in any material respect; (ii) Mortgagor's
violation of or failure to meet the requirements of any Environmental Laws; or
(iii) Hazardous Materials which, while the Property is subject to this Mortgage,
exist on the Property. Bank shall have the right to arrange for or conduct
environmental inspections of the Property from time to time (including the
taking of soil, water, air or material samples). The cost of such inspections
made after Default or which are required by laws or regulations applicable to
Bank shall be borne by Mortgagor. However, Mortgagor's indemnity shall not apply
to any negligent or intentional act of Bank which takes place after foreclosure
or satisfaction of this Mortgage. These indemnification obligations are in
addition to General Indemnification provisions set forth hereafter. Mortgagor's
Obligations under this section shall continue, survive and remain in full force
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and effect notwithstanding the repayment of the Obligations, a foreclosure of or
exercise of power of sale under this instrument, a delivery of a deed in lieu of
foreclosure, a cancellation or termination of record of this instrument and the
transfer of the Property.
Appraisals. Mortgagor agrees that Bank may obtain an appraisal of the
Property when required by the regulations of the Federal Reserve Board or the
Office of the Comptroller of the Currency, any other regulatory agency or at
such other times as Bank may reasonably require. Such appraisals shall be
performed by an independent third party appraiser selected by Bank. The
reasonable cost of such appraisals shall be borne by Mortgagor. If requested by
Bank, Mortgagor shall execute an engagement letter addressed to the appraiser
selected by Bank. Mortgagor's failure or refusal to sign such an engagement
letter, however, shall not impair Bank's right to obtain such an appraisal.
Mortgagor agrees to pay the cost of such appraisal within 10 days after
receiving an invoice for such appraisal.
Inspections. Bank, or its representatives or agents, are authorized to
enter at any reasonable time, during regular business hours, upon any part of
the Property for the purpose of inspecting the Property and for the purpose of
performing any of the acts it is authorized to perform under the terms of this
Mortgage.
Liens and Subrogation. Mortgagor shall pay and promptly discharge all
liens, claims and encumbrances upon the Property, except for the Permitted
Liens. Mortgagor shall have the right to contest in good faith the validity of
any such lien, claim or encumbrance, provided: (i) such contest suspends the
collection thereof or there is no danger of the Property being sold or forfeited
while such contest is pending; (ii) Mortgagor first deposits with Bank a bond or
other security satisfactory to Bank in such amounts as Bank shall reasonably
require; and (iii) Mortgagor thereafter diligently proceeds to cause such lien,
claim or encumbrance to be removed and discharged.
Bank shall be subrogated to any liens, claims and encumbrances against
Mortgagor or the Property that are paid or discharged through payment by Bank or
with loan proceeds, notwithstanding the record cancellation or satisfaction
thereof.
Payments by Bank. In the event of default in the timely payment or
performance of any of the Obligations beyond any cure period, Bank, at its
option, may pay the sums for which Mortgagor is obligated. Further, Bank may pay
such sums as Bank deems appropriate for the protection and maintenance of the
Property including, without limitation, sums to pay Impositions and other
levies, assessments or liens, maintain insurance, make repairs, secure the
Property, maintain utility service, intervene in any condemnation, make advances
under a construction loan to enable completion of construction and pay
reasonable attorneys' fees and other fees and costs to enforce this Mortgage or
protect the lien hereof (including foreclosure) or collect the Obligations,
without limitation, including those incurred in any proceeding including
Bankruptcy or arbitration. Any amounts so paid shall bear interest at the
default rate stated in the Note and shall be secured by this Mortgage.
Indemnification. Mortgagor shall protect, indemnify and save harmless
Bank from and against all losses, liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) (collectively, "Damages") imposed upon,
incurred by or asserted against Bank on account of (i) the Loan Documents or any
failure or alleged failure of Mortgagor to comply with any of the terms or
representations of this Agreement; (ii) any claim of loss or damage to the
Property or any injury or claim of injury to, or death of, any person or
property that may be occasioned by any cause whatsoever pertaining to the
Property or the use, occupancy or operation thereof, (iii) any failure or
alleged failure of Mortgagor to comply with any law, rule or regulation
applicable to the Property or the use, occupancy or operation of the Property
(including, without limitation, the failure to pay any taxes, fees or other
charges), provided that such indemnity shall be effective only to the extent of
any Damages that may be sustained by Bank in excess of any net proceeds received
by it from any insurance of Mortgagor (other than self-insurance) with respect
to such Damages, (iv) any Damages whatsoever by reason of any alleged action,
obligation or undertaking of Bank relating in any way to or any matter
contemplated by the Loan Documents, (v) any claim for brokerage fees or such
other commissions relating to the Property or any other Obligations, or (vi) any
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and all liability arising from any leases related to the Property. Nothing
contained herein shall require Mortgagor to indemnify Bank for any Damages
resulting from Bank's gross negligence or its willful and wrongful acts. The
indemnity provided for herein shall survive payment of the Obligations and shall
extend to the officers, directors, employees and duly authorized agents of Bank.
In the event the Bank incurs any Damages arising out of or in any way relating
to the transaction contemplated by the Loan Documents (including any of the
matters referred to in this section), the amounts of such Damages shall be added
to the Obligations, shall bear interest, to the extent permitted by law, at the
interest rate borne by the Obligations from the date incurred until paid and
shall be payable on demand.
Assignment of Rents. Mortgagor hereby absolutely assigns and transfers
to Bank all the leases, rents, issues and profits of the Property (collectively
"Rents"). Although this assignment is effective immediately, so long as no
Default exists, Bank gives to and confers upon Mortgagor the privilege under a
revocable license to collect as they become due, but not prior to accrual, the
Rents and to demand, receive and enforce payment, give receipts, releases and
satisfactions, and sue in the name of Mortgagor for all such Rents. Mortgagor
represents there has been no prior assignment of leases or Rents, and agrees not
to further assign such leases or Rents. Upon any occurrence of any uncured
Default, the license granted to Mortgagor herein shall be automatically revoked
without further notice to or demand upon Mortgagor, and Bank shall have the
right, in its discretion, without notice, by agent or by a receiver appointed by
a court, and without regard to the adequacy of any security for the Obligations,
(i) to enter upon and take possession of the Property, (ii) notify tenants,
subtenants and any property manager to pay Rents to Bank or its designee, and
upon receipt of such notice such persons are authorized and directed to make
payment as specified in the notice and disregard any contrary direction or
instruction by Mortgagor, and (iii) in its own name, sue for or otherwise
collect Rents, including those past due, and apply Rents, less costs and
expenses of operation and collection, including attorneys' fees, to the
Obligations in such order and manner as Bank may determine or as otherwise
provided for herein. Bank's exercise of any one or more of the foregoing rights
shall not cure or waive any Default or notice of Default hereunder.
Due on Sale or Further Encumbrance or Transfer of an Interest in
Mortgagor. Without the prior written consent of Bank in each instance, Mortgagor
shall not (i) sell, convey, transfer or encumber the Property, or any part
thereof or interest therein, whether legal or equitable, (ii) cause or permit
any transfer of the Property or any part thereof, whether voluntarily,
involuntarily or by operation of law, or (iii) enter into any agreement or
transaction to transfer, or accomplish in form or substance a transfer, of the
Property. A "transfer" of the Property includes: (a) the direct or indirect
sale, transfer or conveyance of the Property or any portion thereof or interest
therein; (b) the execution of an installment sale contract or similar instrument
affecting all or any portion of the Property; (c) if Mortgagor is a corporation,
partnership, limited liability company, trust or other business entity, the
transfer (whether in one transaction or a series of transactions) of more than
50% of the outstanding stock, partnership, limited liability company or other
ownership interests in such corporation, partnership, limited liability company
or entity including, without limitation, changes in stockholders, partners,
members, managers, trustees, beneficiaries, or their respective interests; (d)
if Mortgagor, or any general partner or member of Mortgagor, is a corporation,
the creation or issuance of new stock by which an aggregate of more than 10% of
such corporation's stock shall be vested in a party or parties who are not now
stockholders; and (e) an agreement by Mortgagor leasing all or a substantial
part of the Property for other than actual occupancy by a space tenant
thereunder or a sale, assignment or other transfer of or the grant of a security
interest in and to any Leases.
Bank's consent to any conveyance or encumbrance may be conditioned upon
an increase in the interest rate specified in the Note (or other Obligations),
an extension or curtailment of the maturity of the Obligations, or other
modification of the Note or this instrument.
Remedies of Bank on Default. Failure of Mortgagor or any other person
liable to timely pay or perform any of the Obligations is a default ("Default")
under this Mortgage. Upon the occurrence of Default the following remedies are
available, without limitation, to Bank: (i) Bank may exercise any or all of
Bank's remedies under this Mortgage or other Loan Documents including, without
limitation, acceleration of the maturity of all payments and Obligations,
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including any swap agreements (as defined in 11 U.S.C. ss. 101) with Bank
(provided that the early termination shall be governed by the default and
termination provisions of said swap agreements); (ii) Bank may take immediate
possession of the Property or any part thereof (which Mortgagor agrees to
surrender to Bank) and manage, control or lease the same to such persons and at
such rental as it may deem proper and collect and apply Rents to the payment of:
(a) the Obligations, together with all costs and attorneys' fees; (b) all
Impositions and any other levies, assessments or liens which may be prior in
lien or payment to the Obligations, and premiums for insurance, with interest on
all such items; and (c) the cost of all alterations, repairs, replacements and
expenses incident to taking and retaining possession of the Property and the
management and operation thereof; all in such order or priority as Bank in its
sole discretion may determine. The taking of possession shall not prevent
concurrent or later proceedings for the foreclosure sale of the Property; (iii)
Bank may apply to any court of competent jurisdiction for the appointment of a
receiver for all purposes including, without limitation, to manage and operate
the Property or any part thereof, and to apply the Rents therefrom as
hereinabove provided. In the event of such application, Mortgagor consents to
the appointment of a receiver, and agrees that a receiver may be appointed
without notice to Mortgagor, without regard to whether Mortgagor has committed
waste or permitted deterioration of the Property, without regard to the adequacy
of any security for the Obligations, and without regard to the solvency of
Mortgagor or any other person, firm or corporation who or which may be liable
for the payment of the Obligations; (iv) Bank may exercise all the remedies of a
mortgagee as provided by law and in equity including, without limitation,
foreclosure upon this Mortgage and sale of the Property, or any part of the
Property, at public sale conducted according to applicable law (referred to as
"Sale") and conduct additional Sales as may be required until all of the
Property is sold or the Obligations are satisfied; (v) With respect to any
portion of the Property governed by the UCC, Bank shall have all of the rights
and remedies of a secured party thereunder. Bank may elect to foreclose upon any
Property that is fixtures under law applicable to foreclosure of interests in
real estate or law applicable to personal property; (vi) Bank may bid at Sale
and may accept, as successful bidder, credit of the bid amount against the
Obligations as payment of any portion of the purchase price; and (vii) Bank
shall apply the proceeds of Sale, first to any fees or reasonable attorney fees
permitted Bank by law in connection with Sale, second to expenses of
foreclosure, publication, and sale permitted Bank by law in connection with
Sale, third to the Obligations, and any remaining proceeds as required by law.
Miscellaneous Provisions. Mortgagor agrees to the following: (i) All
remedies available to Bank with respect to this Mortgage or available at law or
in equity shall be cumulative and may be pursued concurrently or successively.
No delay by Bank in exercising any remedy shall operate as a waiver of that
remedy or of any Default. Any payment by Bank or acceptance by Bank of any
partial payment shall not constitute a waiver by Bank of any Default; (ii)
Mortgagor represents that Mortgagor (a) is (1) an adult individual and is sui
juris, or (2) a corporation, general partnership, limited partnership, limited
liability company or other legal entity, duly organized, validly existing and in
good standing under the laws of its state of organization, and is authorized to
do business in each other jurisdiction wherein its ownership of property or
conduct of business legally requires such organization (b) has the power and
authority to own its properties and assets and to carry on its business as now
being conducted and as now contemplated; and (c) has the power and authority to
execute, deliver and perform, and by all necessary action has authorized the
execution, delivery and performance of, all of its obligations under this
Mortgage and any other Loan Document to which it is a party. (iii) The
provisions hereof shall be binding upon and inure to the benefit of Mortgagor,
its heirs, personal representatives, successors and assigns including, without
limitation, subsequent owners of the Property or any part thereof, and shall be
binding upon and inure to the benefit of Bank, its successors and assigns and
any future holder of the Note or other Obligations; (iv) Any notices, demands or
requests shall be sufficiently given Mortgagor if in writing and mailed or
delivered to the address of Mortgagor shown above or to another address as
provided herein and to Bank if in writing and mailed or delivered to Wachovia
Bank, National Association, Mail Code VA7391, P. O. Box 13327, Roanoke, VA 24040
or Wachovia Bank, National Association, Mail Code VA7391, 10 South Jefferson
Street, Roanoke, VA 24011, or such other address as Bank may specify from time
to time and in the event that Mortgagor changes Mortgagor's address at any time
prior to the date the Obligations are paid in full, that party shall promptly
give written notice of such change of address by registered or certified mail,
return receipt requested, all charges prepaid. Notices to Bank must include the
mail code. (v) This Mortgage may not be changed, terminated or modified orally
or in any manner other than by an instrument in writing signed by the parties
hereto; (vi) The captions or headings at the beginning of each paragraph hereof
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are for the convenience of the parties and are not a part of this Mortgage;
(vii) If the lien of this Mortgage is invalid or unenforceable as to any part of
the Obligations, the unsecured portion of the Obligations shall be completely
paid (and all payments made shall be deemed to have first been applied to
payment of the unsecured portion of the Obligations) prior to payment of the
secured portion of the Obligations and if any clause, provision or obligation
hereunder is determined invalid or unenforceable the remainder of this Mortgage
shall be construed and enforced as if such clause, provision or obligation had
not been contained herein; (viii) This Mortgage shall be governed by and
construed under the laws of the jurisdiction where this Mortgage is recorded;
(ix) Mortgagor by execution and Bank by acceptance of this Mortgage agree to be
bound by the terms and provisions hereof.
Minimum Standards. In addition to the requirements set forth in the
Loan Documents, all surveys, insurance, title policies, construction documents,
environmental reports, payment and performance bonds, and any other due
diligence or additional documents required in connection with this Loan, shall
comply with Bank's minimum standards in place from time to time for such
documents, which shall be provided in writing by Bank to Borrower upon request.
IN WITNESS WHEREOF, Mortgagor has signed and sealed this instrument as
of the day and year first above written.
Mortgagor
A.C. Moore Urban Renewal, LLC
By: Leslie H. Gordon
----------------------------------(SEAL)
Leslie H. Gordon, Member
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State of New Jersey
County of Camden
L. L. C. Acknowledgment
I certify that before me appeared this day Leslie H. Gordon, a person
known to me, who after being sworn stated he/she is Member of A.C. Moore Urban
Renewal, LLC, a New Jersey limited liability company and is duly authorized to
act on behalf of said Company, and being informed of the contents thereof,
acknowledged execution of the foregoing instrument on behalf of said Company.
Witness my hand and official seal, this 27th day of October, 2003.
Patricia L. Olson
-----------------------------------------
Notary Public
Notary Seal
-----------------------------------------
(Printed Name of Notary)
My Commission Expires: June 11, 2007
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