STATE OF NEW JERSEY COUNTY OF MONMOUTH MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
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Prepared
by and Return To:
▇▇▇▇▇▇▇
▇▇▇▇▇ LLP (DJG)
77W.Wackerflrive,
Suite 4l00
Chicago,
Illinois 60601-1681
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STATE
OF NEW JERSEY
COUNTY
OF MONMOUTH
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MORTGAGE,
ASSIGNMENT
OF LEASES AND RENTS,
SECURITY
AGREEMENT AND
FIXTURE
FILING
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COLLATERAL
IS OR. INCLUDES FIXTURES
THIS
MORTGAGE, ASSIGNMENT OP LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE
FILING
(the "Security Instrument") is made and entered into as of the 16th day of
November, 2004, which date shall be the effective date of this Security
Instrument, by MONITAL SIGNAL CORPORATION, a New Jersey corporation (the
"Borrower") in favor of LASALLE BANK. NATIONAL ASSOCIATION, a national banking
association, together with its successors arid assigns (the "Lender").
This
Security Instrument secures (i) the obligations of the Borrower under that
certain Revolving Note, executed by the Borrower and the other parties thereto,
of even date herewith, payable to the order of the Lender in the original
principal amount of $30,000,000.00 (such promissory note and all amendments,
renewals, replacements, extensions or other modifications being hereinafter
referred to as the 'Note"); (ii) the performance by the Borrower of its
obligations under the Credit Agreement of even date herewith among the Borrower,
the Lender and the other parties thereto (as amended, modified or restated,
the
"Credit Agreement") and under all other Loan Documents (as defined in the
Credit
Agreement) executed by the Borrower and the other parties thereto in connection
with the loan evidenced by the Note (the "Loan"); and (iii) the payment by
the
Borrower of all other sums, with interest thereon, advanced in accordance
with
the Note, the Credit Agreement or any other Loan Document to protect the
security of this Security Instrument.
Capitalized
terms used, but not defined, herein shall have the meanings given to such
terms
in the Credit Agreement. All of the terms, definitions, conditions and covenants
of the Credit Agreement are expressly made a part of this Security Instrument
by
reference in the same manner and with the same effect as if set forth herein
at
length and any beneficiary of this manner and with the same effect as if
set
forth herein at length and any beneficiary of this Security Instrument is
entitled to the benefits of and remedies provided in the Credit Agreement,
the
Note and other Loan Documents by and between the Borrower and the Lender.
W
I T N E S SE T H:
The
Borrower,
in consideration of the indebtedness herein recited, irrevocably grants,
mortgages, conveys and assigns to the Lender and the Lender's successors
and
assigns, all of the following described land, real property interests,
buildings, improvements, fixtures, furniture and appliances and other personal
property:
(a)
All that
tract or parcel of land and other real property interests in MONMOUTH
County,
New
Jersey more particularly described in Exhibit
A attached
hereto and made a part hereof (the "Land"), subject to the permitted
encumbrances described in Exhibit
B attached
hereto and made a part hereof (the "Permitted Encumbrances"); and
(b)
All
buildings, improvements and tenements of every kind and description now or
hereafter erected or placed on the Land (the "Improvements") and all materials
intended for construction, reconstruction, alteration and repair of such
Improvements now or hereafter erected or placed thereon, all of which materials
shall be deemed to be included within the premises hereby conveyed immediately
upon the delivery thereof to the Land, and all Tangible Personalty (as defined
in the Personalty Rider attached hereto and made a part hereof for all
purposes).
TO
HAVE
AND HOLD the same, together with all privileges, hereditaments, easements
and
appurtenances thereunto belonging, to the Lender and the Lender's successors
and
assigns to secure the indebtedness herein recited and upon this special trust:
that should the indebtedness secured hereby be paid according to the tenor
and
effect thereof when the same shall be due and payable and should the Borrower
timely and fully discharge its obligations hereunder and under the other
Loan
Documents, then the Land, Improvements and Tangible Personalty (hereinafter
collectively referred to as the "Premises" shall be reconveyed to the Borrower
or the title thereto shall be revested according to the provisions of applicable
law.
As
additional collateral and further security for the indebtedness secured hereby,
to the fullest extent permitted by applicable law, the Borrower does hereby
assign to the Lender and grants to the Lender a security interest in: (i)
all of
the right, title and interest of the Borrower in and to any and all Intangible
Personalty (as defined in the Personalty Rider attached hereto), and (ii)
any
and all escrow accounts, collection accounts or deposit accounts relating
to the
Premises now maintained or to be established from time to time and any and
all
certificates or instruments purchased with funds deposited in such account(s),
and all renewals of such instruments or certificates and all replacements
therefore, whether in the form of certificates of deposit or other instruments,
notes, securities or accounts (including, without limitation, money market
instruments and accounts) and any other cash or non-cash proceeds of the
principal amount of any of the foregoing, including interest and dividends
thereon, if any, and all proceeds therefrom including, without limitation,
interest or dividends, if any, on the accounts and all certificates,
instruments, notes, securities or accounts. The Borrower agrees to execute
and
deliver to the Lender such additional instruments, in form and substance
satisfactory to the Lender, as may hereafter be requested by the Lender to
evidence and confirm said assignment and grant of security interest; provided,
however, that acceptance of any such assignment and grant of security interest
shall not be construed as a consent by the Lender to any of the foregoing
or to
impose upon the Lender any obligation with respect thereto.
As
part
of the consideration for the indebtedness secured hereby, the Borrower hereby
absolutely and unconditionally assigns and transfers to the Lender and grants
to
the Lender a security interest in any and all leases and other occupancy
or use
agreements (whether oral or written) now existing or hereafter made and
affecting the Premises as such leases and other agreements may have been,
or may
from time to time be hereafter, modified, extended and renewed, with all
the
security deposits, rents (including, without limitation, room rents and room
revenues, if any), issues, profits, revenues and other income of the Premises
from time to time accruing therefrom (the "Rents and Profits"), and the
acceptance of this assignment and the collection of the Rents and Profits
or the
payments under the leases hereby assigned shall not constitute a waiver of
any
rights of the Lender under the terms of the Loan Documents. So long as there
shall exist no Event of Default (as defined in the Credit Agreement), the
Borrower shall have the right under a license granted hereby (but limited
as
provided elsewhere in this Security Instrument and in the Credit Agreement)
to
collect upon, but not more than two months prior to accrual, all of said
Rents
and Profits, arising from or out of such leases and other agreements or any
modifications, renewals or extensions thereof, or from or out of the Premises
or
any part thereof, and the Borrower shall receive such Rents and Profits,
as a
trust fund to be applied, and the Borrower hereby covenants to so apply same,
to
the payment of taxes and assessments upon the Premises before penalty or
interest are due thereon, to the cost of such insurance and of such maintenance
and repairs as is required by the terms of the Security Instrument and Credit
Agreement, to the payment of Operating Expenses (as defined in the Credit
Agreement), and to the payment of interest and principal and other amounts
becoming due on the Loan or under the Loan Documents, before using any part
of
the same for any other purposes.
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All
the
Tangible Personalty which comprises a part of the Premises shall, as far
as
permitted by applicable law, be deemed to be affixed to the Land and conveyed
therewith. As to the balance of the Tangible Personalty and the Intangible
Personalty, this Security Instrument shall be considered to be a security
agreement which creates a security interest in such items for the benefit
of the
Lender, and in any and all proceeds of such collateral. In that regard, the
Borrower grants to the Lender all of the rights and remedies of a secured
party
under the laws of the state in which the Premises is located.
The
Borrower covenants, warrants, represents and agrees as follows:
1. Amount
Secured.
This
Security Instrument secures all present and future loan disbursements made
by
the Lender under the Note, and all other sums from time to time owing to
the
Lender by the Borrower under the other Loan Documents, including, without
limitation, sums advanced in accordance herewith to protect the security
of this
Security Instrument. The original principal amount secured hereby is
$30,000,000.00.
2.
Acceleration;
Foreclosure.
Upon the
occurrence of an Event of Default, the Lender, at the Lender's option, may
declare the entire balance of the Loan, including all accrued interest, to
be
immediately due and payable without further demand and may foreclose the
lien of
this Security Instrument by judicial proceeding and may pursue any other
remedies permitted by applicable law or provided herein or in any of the
other
Loan Documents. The Lender shall be entitled to collect all fees, costs and
expenses incurred in pursuing such remedies, including, but not limited to,
reasonable attorney's fees, costs of documentary evidence, abstracts and
title
reports. With respect to provisions for acceleration of the entire unpaid
principal balance plus all accrued interest and charges under the Loan as
set
forth in the Loan Documents, the Borrower acknowledges that: (i) such additional
rate is a material inducement to the Lender to make the Loan; (ii) the Lender
would not have made the Loan in the absence of the agreement of the Borrower
to
pay such additional rate: (iii) such additional rate represents compensation
for
increased risk to the Lender that the Loan will not be repaid; and (iv) such
rate is not a penalty and represents a reasonable estimate of (a) the cost
of
the Lender in allocating its resources (both personnel and financial) to
the
ongoing review, monitoring, administration and collection of the loan and
(b)
compensation to the Lender for losses that are difficult to ascertain
notwithstanding anything contained herein or the other Loan Documents to
the
contrary.
3. Rights
Upon Event of Default.
Upon the
occurrence of any Event of Default, the Lender, immediately and without
additional notice and without liability therefor to the Borrower, except
for
willful misconduct, may, in accordance with, and subject to, the terms and
conditions of the Credit Agreement, do or cause to be done any or all of
the
following: (a) take physical possession of the Premises; (b) exercise its
right
to collect the Rents and Profits; (c) enter into contracts for the repair
and
maintenance of the Improvements thereon; (d) expend Loan funds and any Rents
and
Profits for payment of any taxes, insurance premiums, assessments and charges
for repair and maintenance of the Improvements, preservation of the lien
of this
Security Instrument and satisfaction and fulfillment of any liabilities or
obligations of the Borrower arising out of or in any way connected with the
use,
repair or maintenance of Improvements on the Premises whether or not such
liabilities and obligations in any way affect, or may affect, the lien of
this
Security Instrument; (e) enter into leases demising the Premises or any part
thereof, pay any leasing commissions in connection therewith, and make
arrangements with tenants with respect to tenant improvements, moving costs,
and
other concessions, all as the Lender may elect in its sole and absolute
discretion; (f) take any steps to protect and enforce the specific performance
of any covenant, condition or agreement in the Note, this Security Instrument,
the Credit Agreement, or the Other Loan Documents, or to aid in the execution
of
any power herein granted; (g) take such steps to protect and enforce the
specific performance of any covenant. condition or agreement as to the
Intangible Personalty; and (h) generally, supervise, manage and contract
with
reference to the Premises as if the Lender were an equitable owner of the
Premises, and upon such terms and conditions as the Lender may elect in its
sole
and absolute discretion. Notwithstanding the occurrence of an Event of Default
or acceleration of the Loan, the Lender shall continue to have the right
to pay
money, whether or not Loan funds, for the purposes described in the Credit
Agreement, and all such sums and interest thereon shall be secured hereby.
The
Borrower also agrees that any of the foregoing rights and remedies of the
Lender
may be exercised at any time independently of the exercise of any other such
rights and remedies, and the Lender may continue to exercise any or all such
rights and remedies until the Event of Default is cured or until foreclosure
and
the conveyance of the Premises to the high bidder or until the Loan is otherwise
satisfied or paid in full.
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4. Rents
and Profits.
(a) Collection.
The
Borrower hereby authorizes the Lender, by its employees or agents, at its
option, after the occurrence of an Event of Default, with or without notice
to
or demand on the Borrower, to terminate the aforesaid license granted to
the
Borrower to collect said Rents and Profits,
and to enter upon the Premises, and to collect, in accordance with the Credit
Agreement and in the name of the Borrower or in its own name, as assignee,
the
Rents and Profits accrued but unpaid and in arrears at the date of said Event
of
Default as well as the rents thereafter accruing and becoming payable during
the
period of the continuance of such Event of Default or any other Event of
Default; and to this end; the Borrower further agrees that it will facilitate
in
all reasonable ways the Lender's collection of said Rents and Profits, and
will,
upon request by the Lender, execute a written notice to each tenant directing
the tenant to pay rent to the Lender. Upon such entry, the Lender shall be
authorized, but not obligated, to take over and assume the control, care,
management, operation, repair and maintenance of the Premises and to perform
such other acts as the Lender in its sole and absolute discretion may deem
proper, and to expend such sums out of the income of the Premises as may
be
needful in connection therewith (including the right to effect new leases,
to
cancel or surrender existing leases, to evict tenants, to bring or defend
any
suits in connection with the possession of any portion of the Premises in
its
own name or the Borrower's name, to alter or to amend the terms of existing
leases, to renew existing leases, and to make concessions to the tenants).
The
Borrower hereby releases all claims against the Lender arising out of such
management, operation, repair and maintenance, excepting the liability of
the
Lender to account as hereinafter set forth, and except claims arising from
the
willful misconduct of the Lender.
(b) Indemnity.
Unless
and until the license granted to the Borrower in this Security Instrument
to
collect the Rent and Profits is terminated and the Lender physically enters
the
Premises as described herein, in person or by agent (provided that a receiver
appointed by a court shall not be deemed to be an agent of the Lender), the
Lender shall not be obligated to perform or discharge any obligation or duty
to
be performed or discharged by the Borrower under any of said leases, and
the
Borrower hereby agrees to indemnify the Lender for and to save it harmless
from,
any and all liability arising from any of said leases or from this assignment,
and this assignment shall not place responsibility for the conduct, care,
management, or repair of the Premises upon the Lender; or make the Lender
responsible or liable for any negligence in the management, operation, upkeep,
repair or control of said Premises resulting in loss or injury to, or death
of,
any invitee, tenant, licensee, employee or stranger and/or damage to, or
destruction of, the Premises.
5. Appointment
of Receiver.
Upon the
occurrence of an Event of Default, the Lender shall be entitled, without
additional notice and without regard to the adequacy of any security for
the
Loan or the solvency of any party bound for its payment, to seek the appointment
of a receiver to take possession of and to operate the Premises, and to collect
the Rents and Profits, all expenses of which shall be added to the Loan and
secured hereby.
6. Waivers.
No
waiver of any Default Condition or Event of Default shall at any time thereafter
be held to be a waiver of any rights of the Lender stated anywhere in the
Note,
this Security Instrument, the Credit Agreement or any of the other Loan
Documents, nor shall any waiver of any prior Default Condition or Event of
Default operate to waive any subsequent Default Condition and/or Event of
Default. All remedies provided in this Security Instrument, in the Note,
in the
Credit Agreement and in the other Loan Documents are cumulative and may,
at the
election of the Lender, be exercised alternatively, successively, or in any
manner and are in addition to any other rights provided by applicable law.
4
7. Terms.
The
singular used herein shall be deemed to include the plural; the masculine
deemed
to include the feminine and neuter; and the named parties deemed to include
their heirs, successors and assigns, provided that nothing herein shall be
construed to authorize or permit the Borrower to make or effect any transfer
of
any interest in or with respect to the Borrower or the Premises which is
not
permitted under the Loan Documents. The term "Lender" shall include any payee
of
the indebtedness hereby secured or any transferee thereof whether by operation
of law or otherwise.
8. Notices.
All
notices and other communications shall have been duly given and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number set forth below, (iii) on the day following
the
day on which the same has been delivered prepaid to a reputable national
overnight air courier service, or (iv) on the third Business Day following
the
day on which the same is sent by certified or registered mail, postage prepaid,
in each case to the respective parties at the address set forth below, or
at
such other address as such party may specify by written notice to the other
party hereto. No notice of change of address shall be effective except upon
actual receipt. This Section shall not be construed in any way to affect
or
impair any waiver of notice or demand provided in any other Loan Document
or to
require giving of notice or demand to or upon any Person in any situation
or for
any reason.
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If
to Borrower:
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Monital
Signal Corp.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. Few, President
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy
(▇▇▇) ▇▇▇-▇▇▇▇
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If
to the Lender:
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LaSalle
Bank National Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
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With
a copy to:
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▇▇▇▇▇▇▇
▇▇▇▇▇ LLP
▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
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The
parties hereto agree that any
notice sent to the Borrower at its address set forth herein (or designated
in
accordance with this Section) shall be deemed notice to all general partners
or
members of the Borrower, if any. Personal delivery to a party or to any officer,
partner, member, agent or employee of such party at its address herein shall
constitute receipt. Rejection or other refusal to accept or inability to
deliver
because of changed address of which no notice has been received shall also
constitute receipt.
9. Greater
Estate.
In the
event that the Borrower is the owner of a leasehold estate with respect to
any
portion of the Premises and, prior to the satisfaction of the indebtedness
secured hereby and the cancellation of this Security Instrument of record,
the
Borrower obtains a fee estate in such portion of the Premises, then, such
fee
estate shall automatically, and without further action of any kind on the
part
of the Borrower, be and become subject to the security lien of this Security
Instrument.
10. Imposition
of Tax.
In the
event of the passage of any state, federal, municipal or other governmental
law,
order, rule or regulation, in any manner changing or modifying the laws now
in
force governing the taxation of debts secured by mortgages or the manner
of
collecting taxes so as to affect adversely the Lender, the Borrower will
promptly pay any such tax on or before the due date thereof; and if the Borrower
falls to make such prompt payment or if any such state, federal, municipal
or
other governmental law, order, rule or regulation prohibits the Borrower
from
making such payment or would penalize the Lender if the Borrower makes such
payment, then the entire balance of the Loan shall become due and payable
upon
demand at the sole option of the Lender.
11. Heading,
The
captions and headings herein are inserted only as a matter of convenience
and
for reference and in no way define, limit, or describe the scope of this
Security Instrument nor the intent of any provision hereof:
12. General
Provisions.
A
determination that any provision of this Security Instrument is unenforceable
or
invalid shall not affect the enforceability or validity of any other provision
and the determination that the application of any provision of this Security
Instrument to any Person or circumstance is illegal or unenforceable shall
not
affect the enforceability or validity of such provision as it may apply to
other
Persons or circumstances: This Security Instrument may not be amended except
in
a writing specifically intended for such purpose and executed by the party
against whom enforcement of the amendment is sought. The holder of this Security
Instrument may, from time to time, sell or offer to sell the Loan, or any
interests therein, to one or more transferees, assignees or participants
and is
hereby authorized to disseminate any information it has pertaining to the
Loan,
including, without limitation, any security for this Security Instrument
and
credit information on the Borrower, any of its principals and any Borrower
Principal (as defined in the Credit Agreement), to any such transferee, assignee
or participant or prospective transferee, assignee or participant, and to
the
extent, if any, specified in any such transfer instrument, assignment or
participation, and such transferee, assignee or participant shall have the
rights and benefits with respect to this Security Instrument and the other
Loan
Documents as such Person would have if such Person were the Lender hereunder.
The Borrower warrants and represents to the Lender and all other holders
of this
Security Instrument that the Loan is and will be for business or commercial
purposes only and not primarily for personal, family, or household use. The
terms, provisions, covenants and conditions hereof shall be binding upon
the
Borrower and the heirs, devisees, representatives, successors and assigns
of the
Borrower, provided that nothing herein shall be construed to authorize or
permit
the Borrower to make or effect any transfer of any interest in or with respect
to the Borrower or the Premises which is not permitted under the Loan Documents.
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13. WRITTEN
AGREEMENT.
(a) THE
RIGHTS AND OBLIGATIONS OF
THE BORROWER AND THE LENDER SHALL BE DETERMINED SOLELY FROM THIS WRITTEN
SECURITY INSTRUMENT
AND THE OTHER LOAN DOCUMENTS, AND ANY PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN
THE LENDER AND THE BORROWER CONCERNING THE SUBJECT MATTER HEREOF AND OF THE
OTHER LOAN DOCUMENTS ARE SUPERSEDED BY AND MERGED INTO THIS SECURITY INSTRUMENT
AND THE OTHER LOAN DOCUMENTS.
(b)
THIS
SECURITY INSTRUMENT AND THE OTHER LOAN DOCUMENTS MAY NOT BE VARIED BY ANY
ORAL
AGREEMENTS OR DISCUSSIONS THAT OCCUR BEFORE, CONTEMPORANEOUSLY WITH, OR
SUBSEQUENT TO THE EXECUTION OF THIS SECURITY INSTRUMENT OR THE LOAN DOCUMENTS.
(c)
THIS
WRITTEN SECURITY INSTRUMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
14. WAIVER
OF JURY TRIAL.
THE
LENDER AND THE BORROWER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED
UPON, OR RELATED TO, THESUBJECT MATTER OF THIS SECURITY INSTRUMENT. THIS
WAIVER
IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY THE LENDER AND THE
BORROWER, AND THE LENDER AND THE BORROWER ACKNOWLEDGE THAT NO PERSON ACTING
ON
BEHALF OF ANOTHER PARTY TO THIS AGREEMENT HAS MADE ANY REPRESENTATIONS OF
FACT
TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY
ITS
EFFECT. THE LENDER AND THE BORROWER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN
REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING
OF
THIS SECURITY INSTRUMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL
COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY
TO DISCUSS THIS WAIVER WITH COUNSEL.
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IN
WITNESS
WHEREOF, the Mortgagor has executed this Security Instrument effective as
of the
date first above written.
MORTGAGOR:
MONITAL
SIGNAL
CORPORATION, a
New
Jersey
corporation,
By:
/s/
▇▇▇▇▇▇ ▇. Few
Name:
▇▇▇▇▇▇
▇. Few
Title:
President
STATE
OF
New
Jersey
COUNTY
OF
Bergen
BE
IT
REMEMBERED, that on the 16th
day of
November, 2004, in the County and State aforesaid, before me, the subscriber,
a
notary public authorized to acknowledgments and proofs in said County and
State,
personally appeared ▇▇▇▇▇▇
▇. Few ,
who I
am satisfied is the person who signed the within instrument as the President
of
MONITAL SIGNAL CORPORATION, a New Jersey corporation, and who executed the
foregoing instrument and acknowledged to my satisfaction that be signed and
delivered the same as such President
said
corporation as the voluntary act and deed of the corporation which act was
duly
authorized by proper resolutions of its Board of Directors, for the uses
and
purposes therein expressed.
Witness
my hand and official seal this 16th
day of
November, 2004.
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
NOTARY
PUBLIC
NOTARY
PUBLIC OF NEW JERSEY
MY
COMMISSION EXPIRES MAR. 19,2006
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PERSONALLTY
RIDER
(Retail
Industrial/Office/MultifamiIy)
The
term
"Intangible
Personally"as
used
herein shall mean any and all present and future accounts, general intangibles,
instruments, inventory, documents and chattel paper, all returned, rejected
or
repossessed goods, the sale or lease of which shall have given or shall give
rise to an account or chattel paper, and all books and records in whatever
media
(paper, electronic or otherwise) recorded or stored, with respect to the
foregoing and all equipment and general intangibles necessary or beneficial
to
retain, access and/or process the information contained in those books and
records, now or hereafter affecting or relating to the Premises or any part
thereof, and all proceeds or products thereof, including without limitation,
(i)
all leases (including equipment leases), rental agreements, sales contracts,
management contracts, franchise and related agreements, construction contracts,
architects' contracts, technical services agreements, licenses and permits,
(ii)
all receivables, customer obligations, installment payment obligations and
other
obligations now existing or hereafter arising or created out of the sale
or
lease of property or rendering of services by the Borrower in its business
of
ownership and operation of the Premises or acquired from others including,
without limiting the generality of the foregoing, from rental of rooms, halls,
stores, offices, exhibit or sales space of every kind, license, lease and
concession fees and rentals, health club membership fees, food and beverage,
whole and retail sales of merchandise, service charges, and proceeds, if
any,
from business interruption or other loss of income insurance, (iii) all of
the
Borrower's right, title and interest in all royalties, license fees and other
income or proceeds derived from trademarks, trademark applications, the
registration therefor, the good will of the business symbolized by the same,
now
or hereafter filed, owned or acquired.
The
term
"Tangible
Personalty"
as used
herein shall mean any and all fixtures, equipment, furnishings and other
articles of personal property now or hereafter owned by the Borrower and
attached to or contained in and used in connection with the Land and
Improvements including, but not limited to, all furniture, furnishings,
apparatus, machinery, equipment, motors, boilers, buildings, materials
appliances, fire prevention and extinguishing apparatus, security arid access
control apparatus, trash receptacles, bath tubs, water heaters, water closets,
sinks, dishwashers, disposals, washers, dryers, elevators, fittings, radiators,
ranges, refrigerators, awnings, storm windows, storm doors, shades, screens,
blinds, curtains and curtain rods, mirrors, cabinets, paneling, rugs, pictures,
antennas, satellite dishes and systems, telecommunications systems (including,
without limitation, equipment, facilities and devices), trees, plants,
carpeting, office equipment and other furnishings and all plumbing, heating,
lighting, cooking, laundry, ventilating, refrigerating, incinerating, trash
compacting, air-conditioning and sprinkler equipment, telephone systems,
televisions and television systems, audio and video systems (including, without
limitation, equipment, facilities and devices), fitness and exercise equipment,
computer systems and fixtures and appurtenances thereto and all renewals
or
replacements thereof or articles in substitution thereof, whether or not
the
same are or shall be attached to the Land and Improvements in any manner,
and
all proceeds and products of any of the foregoing
9
EXHIBIT
A
Legal
Description
ALL
that
certain lot parcel or tract of land, situate and lying in the Township of
Wall,
County of Monmouth, State of New Jersey, and being more particularly described
as follows:
BEING
known and designated as Lot 36 in Block 819 on a certain Map entitled: "Final
Map of Wall Office and Industrial Campus, in the Township of Wall, Monmouth
County, New Jersey", filed in the Monmouth County Clerk's Office on May 1,
1987
as Map No. 216-30.
BEGINNING
at a point on the southeasterly street line of Landmark Place (50 feet wide),
where the same is intersected by the division line between Lots 35 and 36
in
Block 819, as shown on the aforementioned Filed Map 2 16-30, which point
is
distant southwesterly 240.00 feet along the same from its intersection with
the
southwesterly street line of Monmouth County ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, if both street
lines were extended to intersect; thence from said Point of Beginning:
(1) South
59
degrees 13 minutes 55 seconds East, along the division line of Lots 35 and
36,
460.00 feet to a point; thence
(2) South
72
degrees 35 minutes 50 seconds West, along the division line of Lots 36 and
37,
451.14 feet to a point on the northeasterly street line of Landmark Place;
thence
(3) North
17
degrees 24 minutes 10 seconds West along the said street line of Landmark
Place,
79.46 feet to a point; thence
(4) Continuing
along the said street line of Landmark Place on the are of a curve bearing
to
the right having a radius of 300.00 feet an arc distance of 252.22 feet in
a
generally northeasterly direction;
thence
(5) North
30
degrees 46 minutes 05 seconds East, still continuing along the said street
line
of Landmark Place, 59.63 feet to the Point or Place of BEGINNING.
The
above
description being drawn in accordance with a survey prepared by MI County
Surveying dated September 2, 1997.
FOR
INFORMATIONAL PURPOSES ONLY: "In compliance with Chapter 157, Laws of 1977,
premises herein is Lot(s) 36 in Block 819 on the Township of Wall Tax
Map."
EXHIBIT
B
Permitted
Encumbrances
100
foot
setback line as shown on filed map No. 216-30.
Subject
to utility right of way, as set forth in Deed Book 4791, page 942; Deed Book
5133, page 830 and Deed Book 5220, page 356.
[Lien
of
the Second Lien Noteholders.]