Exhibit 10(v)(c)(2)
MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FINANCING STATEMENT
THIS MORTGAGE, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT
(this "Mortgage") is made as of October 2, 2001, by ALX OF PARAMUS LLC, a
Delaware limited liability company, with a mailing address of ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer ("Borrower") to
SVENSKA HANDELSBANKEN AB (publ) ("Lender"), with a mailing address of ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Banking
Department and pertains to the real estate described in Exhibit A attached
hereto and made a part hereof (the "Premises").
I
RECITALS
A. Borrower executed and delivered to Lender a certain limited
recourse promissory note of even date herewith (together with all renewals,
amendments, supplements, restatements, extensions and modifications thereof and
thereto, the "Note"), wherein Borrower promises to pay to the order of Lender
the principal amount of Sixty-Eight Million ($68,000,000.00) Dollars, in
repayment of a loan in like amount (the "Loan") from Lender in accordance with
the terms of the Note, together with interest thereon, at variable rates of
interest and otherwise as set forth in the Note, which Note is due and payable
on the Maturity Date (as defined in the Note); and
B. As security for the repayment of the Loan, in addition to this
Mortgage, certain other loan documents have been executed and delivered to
Lender (the Note; this Mortgage; that certain Loan Agreement (the "Loan
Agreement") of even date herewith executed by Lender and Borrower; that certain
Environmental Indemnity Agreement of even date herewith made by Borrower for the
benefit of Lender; that certain Assignment of Leases and Rents of even date
herewith made by Borrower for the benefit of Lender pursuant to which, among
other things, Borrower assigned to Lender all of Borrower's right, title and
interest in and to (i) the Ground Lease (as hereafter defined) and all subleases
thereunder, including but not limited to the rents payable under the Ground
Lease or under any subleases thereof, and (ii) the Purchase Option (as defined
in Section 46 of the Ground Lease) and certain of the proceeds thereof; and
(iii) the Guaranty (as hereafter defined); and all other documents or
instruments executed and/or delivered by Borrower as additional evidence of, or
security for repayment of, the Loan, whether now or hereafter existing, and all
renewals, amendments, supplements, restatements, extensions, and modifications
thereof and thereto. All of the foregoing are hereinafter sometimes collectively
referred to as the "Loan Documents". The terms and provisions of the other Loan
Documents are hereby incorporated herein by this reference.
C. In consideration of advances, credits and other financial
accommodations heretofore or hereinafter made to Borrower by Lender, Lender has
required Borrower hereby to deliver, pledge, assign, transfer, mortgage and
warrant to Lender the Mortgaged Property (as that term is hereinafter defined)
as security for repayment of the Loan as well as any and
all other amounts now or hereafter owed to Lender under the terms of the Loan
Documents. All capitalized terms not expressly defined herein shall have the
same meanings as set forth in the Loan Documents.
II
THE GRANT
NOW, THEREFORE, to secure the payment of the principal amount of the
Note and interest thereon (at variable rates and as otherwise provided therein)
and all fees and premiums, if any, thereon, and all other sums due thereunder or
advanced by Lender and all costs and expenses incurred by Lender in connection
with any of the Loan Documents (all such obligations and payments are sometimes
referred to herein as the "indebtedness secured hereby") and to secure the
observance and performance of the agreements contained herein and in the other
Loan Documents, Borrower hereby GRANTS, BARGAINS, ASSIGNS, WARRANTS, CONVEYS,
TRANSFERS, PLEDGES, SETS OVER, GRANTS A SECURITY INTEREST and MORTGAGES to
Lender, its successors and assigns, forever all of Borrower's estate, right,
title and interest, whether now or hereafter acquired, in and to the Premises,
together with all of the Borrower's estate, right, title and interest in and to
the following described property, whether now or hereafter acquired (the
Premises, together with a security interest in and a lien on the following
described property being hereinafter referred to collectively as the "Mortgaged
Property"), all of which other property is hereby pledged on a parity with the
Premises and not secondarily:
(a) All buildings and other improvements of every kind
and description now or hereafter erected or placed thereon and all
materials intended for construction, reconstruction, alteration and
repair of such improvements now or hereafter erected thereon, all of
which materials shall be deemed to be included within the Mortgaged
Property immediately upon the delivery thereof to the Premises;
(b) All right, title and interest of Borrower,
including, without limitation, any after-acquired title or
reversion, in and to the beds of the ways, strips and ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, sidewalks and alleys adjoining the Premises;
(c) Each and all of the tenements, hereditaments,
easements, appurtenances, passages, waters, water courses, riparian
rights and any and all other rights, liberties and privileges of the
Premises or in any way now or hereafter appertaining thereto,
including homestead and any other claim at law or in equity, as well
as any after-acquired title, franchise or license and the reversions
and remainders thereof;
(d) All leases (and any and all guaranties thereof) now
or hereafter on or affecting the Premises, or any part thereof,
whether written or oral, including but not limited to (i) that
certain lease (the "Ground Lease") dated as of October 4, 2001 by
and between Borrower, as landlord and IKEA Property, Inc., a
Delaware corporation, as tenant (the "Ground Lessee"); (ii) that
certain guaranty and agreement (the "Guaranty") dated as of October
4, 2001, made by IKEA Holding US, Inc., a Delaware corporation (the
"Guarantor") for the benefit of Borrower and Lender of all
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obligations of the Ground Lessee then existing or thereafter arising
under the Ground Lease; and all other agreements for use of the
Premises, or any part thereof, including but not limited to all
subleases in which the Ground Lessee is the sublandlord (and any and
all guaranties thereof) now or hereafter on or affecting the
Premises, or any part thereof, whether written or oral, together
with all rents, issues, deposits, profits and other benefits now or
hereafter arising from or in respect of the Premises accruing and to
accrue from the Premises and the avails thereof, including but not
limited to the rent payable under the Ground Lease or any subleases
thereof and the proceeds, if any, of the purchase option granted in
the Ground Lease.
(e) All fixtures and personal property now or hereafter
owned by Borrower and attached to, contained in or used in
connection with the Premises or the aforesaid improvements thereon,
including, without limitation, any and all air conditioners,
antennae, appliances, apparatus, awnings, basins, bathtubs, boilers,
bookcases, cabinets, carpets, coolers, curtains, dehumidifiers,
disposals, doors, drapes, dryers, ducts, elevators, engines,
equipment, escalators, fans, fittings, floor coverings, furnaces,
furnishings, furniture, hardware, heaters, humidifiers,
incinerators, inventory, lighting, machinery, motors, ovens, pipes,
plumbing, pumps, radiators, ranges, recreational facilities,
refrigerators, screens, security systems, shades, shelving, sinks,
sprinklers, stoves, toilets, ventilators, wall coverings, washers,
windows, window coverings, wiring and all renewals or replacements
thereof or articles in substitution therefor, whether or not the
same be attached to such improvements, it being agreed that all such
property now or hereafter owned by Borrower and (i) placed,
constructed or installed on the Premises (by Borrower, Ground Lessee
or anyone else) or (ii) used in connection with the operation or
maintenance thereof shall, so far as permitted by law, be deemed for
the purpose of this Mortgage to be part of the real estate
constituting and located on the Premises and covered by this
Mortgage;
(f) All judgments, insurance proceeds, awards of damages
and settlements which may result from any damage to all or any
portion of the Premises and the other Mortgaged Property, or any
part thereof, or to any rights appurtenant thereto;
(g) All compensation, awards, damages, claims, rights of
actions and proceeds of or on account of (i) any damage or taking,
pursuant to the power of eminent domain, of the Premises and the
other Mortgaged Property or any part thereof, (ii) damage to all or
any portion of the Premises and the other Mortgaged Property by
reason of the taking, pursuant to the power of eminent domain, of
all or any portion of the Premises and the other Mortgaged Property
or of other property, or (iii) the alteration of the grade of any
street or highway on or about the Premises and the other Mortgaged
Property or any part thereof; and except as otherwise provided
herein, Lender is hereby authorized to collect and receive said
awards and proceeds and to give proper receipts and acquittances
therefor and to apply the same toward the payment of the
indebtedness and other sums secured hereby;
(h) All contract rights, general intangibles, actions
and rights in action, including, without limitation, all rights to
insurance proceeds and unearned premiums arising from or relating to
damage to the Premises or the other Mortgaged Property or any part
thereof;
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(i) All proceeds, products, replacements, additions,
substitutions, renewals and accessions of and to the Premises or the
other Mortgaged Property;
(j) All building materials and goods which are procured
or to be procured for use on or in connection with the Mortgaged
Property, whether or not such materials and goods have been
delivered to the Premises;
(k) All plans, specifications, architectural renderings,
drawings, licenses, permits, soil test reports, other reports of
examinations or analyses, contracts for services to be rendered
Borrower, or otherwise in connection with the Mortgaged Property and
all other property, contracts, reports, proposals, and other
materials now or hereafter existing in any way relating to the
Premises or the other Mortgaged Property or construction of
additional improvements thereto; and
(l) The proceeds from any sale, transfer, pledge or
other disposition of any or all of the foregoing described Mortgaged
Property;
To have and to hold the same unto Lender and its successors and
assigns forever, for the purposes and uses herein set forth together with all
right to possession of the Premises after the occurrence of any Default (as
hereinafter defined in Paragraph 4.01 hereof) hereunder subject only to the
schedule of exceptions, if any, listed in the Loan Agreement and in the title
insurance policy insuring Lender's interest in the Premises (collectively,
"Permitted Encumbrances").
BORROWER REPRESENTS, WARRANTS AND COVENANTS to Lender that Borrower
is lawfully seized of the Premises, that the same is unencumbered except by the
Permitted Encumbrances, if any, and that it has good right, full power and
lawful authority to convey and mortgage the same, and that Borrower will warrant
and forever defend the Premises and the quiet and peaceful possession of the
same against the lawful claims of all persons whomsoever.
If and when the principal amount of the Note and all interest as
provided thereunder has been paid, and Borrower has satisfied all obligations
thereunder and under the other Loan Documents, then this Mortgage shall be
released at the cost of Borrower, but otherwise shall remain in full force and
effect.
III
GENERAL AGREEMENTS
3.01 PRINCIPAL AND INTEREST. Borrower shall pay or cause to be paid
promptly when due the principal and interest on the indebtedness evidenced by
the Note at the times, at the variable rates and in the manner provided in the
Note, this Mortgage and the other Loan Documents. Any amount not paid when due
hereunder shall accrue interest at the Default Interest Rate (as defined in the
Note).
3.02 PROPERTY TAXES. Unless Borrower has deposited sufficient funds
with Lender in accordance with Section 3.03 of this Mortgage, Borrower shall
pay, or cause to be paid,
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immediately, when first due and owing, all real estate taxes, assessments for
municipal improvements, water charges, sewer charges, and any other charges that
may be asserted against the Mortgaged Property or any part thereof or interest
therein, and furnish to Lender duplicate receipts therefor within thirty (30)
days after payment thereof.
3.03 TAX ESCROW. Upon a Default by Borrower hereunder, Borrower
shall, simultaneously with Borrower's monthly payments of interest to Lender,
deposit monthly with Lender one-twelfth (1/12th) of one hundred ten percent
(110%) of the annual real estate taxes levied against the Mortgaged Property as
reasonably estimated by Lender from time to time in such manner as Lender may
prescribe so as to provide for the current year's real estate tax obligation. If
the amount estimated to pay said taxes is not sufficient, Borrower shall pay the
difference within five (5) days following Lender's demand therefor. Should
Borrower fail to deposit sufficient amounts with Lender to pay such obligations,
Lender may, but shall not be obligated to, advance monies necessary to make up
any deficiency in order to pay such obligations. Any monies so advanced by
Lender shall become so much additional indebtedness secured hereby and shall
become immediately due and payable with interest due thereon at the Default
Interest Rate. Lender is not obligated to inquire into the validity or accuracy
of the real estate tax obligations before making payments of the same and
nothing herein contained shall be construed as requiring Lender to advance other
monies for said purpose nor shall Lender incur any personal liability for
anything it may do or omit to do hereunder. It is agreed that all such payments
made, at the option of Lender, shall be (a) held in trust by it without earnings
for the payment of the real estate tax obligations; (b) carried in a tax account
for the benefit of Borrower and withdrawn by Lender to pay the real estate tax
obligations; or (c) returned to Borrower and Ground Lessee, to the extent no
longer needed by Lender for this escrow purpose, provided that Lender advances
upon this obligation sums sufficient to pay said items as the same accrue and
become payable. If such items are held in trust or carried in a tax account for
Borrower, the same are hereby pledged together with any other account of
Borrower or Guarantor, held by Lender to further secure the indebtedness secured
hereby, and any officer of Lender is authorized to withdraw the same and apply
said sums as aforesaid.
3.04 PAYMENTS BY LENDER. In the event of a Default hereunder, Lender
is hereby authorized to make or advance, in the place and stead of Borrower, any
payment relating to taxes, assessments, water and sewer charges, and other
governmental charges, fines, impositions or liens that may be asserted against
the Mortgaged Property or any part thereof, and may do so according to any ▇▇▇▇,
statement or estimate procured from the appropriate public office without
inquiry into the accuracy thereof or into the validity of any tax, assessment,
lien, sale, forfeiture of title or claim relating thereto. In the event of a
Default hereunder, Lender is further authorized to make or advance, in the place
and stead of Borrower, any payment relating to any apparent or threatened
adverse title, lien, statement of lien, encumbrance, claim, charge or payment,
as well as take any and all actions which Lender deems necessary or appropriate
on Borrower's behalf whenever, in Lender's sole and absolute judgment and
discretion, such payments or actions seem necessary or desirable to protect the
full security intended to be created by this Mortgage. In connection with any
such advance, Lender is further authorized, at its option, to obtain a
continuation report of title or title insurance policy prepared by a title
insurance company of Lender's choosing. All payments, costs and other expenses
incurred by Lender pursuant to this Paragraph 3.04,
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including without limitation reasonable attorneys' fees, expenses and court
costs, shall constitute additional indebtedness secured hereby and shall be
repayable by Borrower upon demand with interest at the Default Interest Rate.
3.05 INSURANCE.
(a) Borrower shall at all times maintain, or Borrower shall at all
times cause Ground Lessee to maintain, for the benefit of Lender, insurance of
the following character:
(i) Commencing with construction of the Improvements (as
such term is defined in the Ground Lease), "All risk" fire and
extended coverage insurance, including fire, legal liability for
contracts including the Ground Lease, theft, flood, water damage,
collapse, earthquake, windstorm, hail, boiler and machinery,
lightning, explosion (excluding nuclear), aircraft and back-up and
seepage of sewers and drains, against loss or damage ("Loss") to the
Premises and the Improvements, in an amount not less than the full
replacement value of the Improvements, exclusive of architectural
and engineering fees, excavation, footings and foundations, on an
agreed amount basis as determined not less often than every two
years at the request of Lender and at Borrower's cost by the insurer
or insurers or by an expert approved by Lender. The maximum
permitted deductible under such policy shall be One Million
($1,000,000.00) Dollars in Current Dollars (as such term is defined
in the Ground Lease). The coverage shall be equivalent or better
than Causes of Loss-Special Form (CP1030) as published by the
Insurance Services Office ("ISO"), or if not then available
generally at market rates for such commercial properties in the
broadest form available in New Jersey.
(ii) During the period of any demolition or construction
on the Premises by Borrower, Ground Lessee or otherwise, in addition
to the insurance required under Paragraph 3.05(a)(i), builder's risk
insurance in completed value (nonreporting) form for improvements
under construction, during the period of such construction,
including building materials, against Loss by fire, lightning and
other risks from time to time included under extended coverage
endorsements, earthquake and perils insured under a difference in
conditions policy in an amount not less than the cost, as reasonably
estimated by Lender, of the improvements under construction. The
maximum permitted deductible under the policy of such insurance
shall be One Million ($1,000,000.00) Dollars in Current Dollars.
(iii) Commercial General Liability Insurance (including
coverage for contractual liability, personal injury, death and
property damage) covering claims arising out of the ownership,
operation, maintenance, condition or use of the Mortgaged Property
and the adjoining sidewalks, curbs, vaults and ways with a combined
single limit of not less than One Million ($1,000,000.00) Dollars in
Current Dollars per occurrence for injury to persons, including
death resulting therefrom, and property damage, an aggregate limit
of not less than Two Million ($2,000,000.00) Dollars in Current
Dollars and umbrella coverage of at least Twenty Million
($20,000,000.00) Dollars in Current Dollars. The policy of such
insurance shall provide that the coverage afforded thereby shall not
be affected by any demolition, construction
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or other work on the Mortgaged Property. Coverage shall be written
on an Occurrence Form equivalent or better than the Occurrence Form
(CG0001) as published by the ISO, or if not then available then in
the broadest form available in New Jersey.
(iv) If the Improvements, as defined in the Ground
Lease, upon the Premises are now or hereafter located in an area
which has been identified by the Secretary of Housing and Urban
Development as a flood hazard area and in which flood insurance has
been made available under the National Flood Insurance Act of 1968
(the "Act"), upon commencement of construction of any Improvements
on the Premises, flood insurance in an amount not less than the
maximum limit of coverage available under the Act.
(v) Worker's compensation insurance meeting all
requirements of Applicable Laws (as such term is defined in Ground
Lease) in effect from time to time.
(vi) Environmental Impairment Liability insurance for
third party damages and injuries with limits of no less than One
Million ($1,000,000.00) Dollars in Current Dollars.
(vii) Malicious Mischief insurance with limits of no
less than Three Million ($3,000,000.00) Dollars in Current Dollars
per occurrence and no less than Three Million ($3,000,000.00)
Dollars in Current Dollars in the aggregate.
(viii) Upon Lender's written request, such other
insurance coverage(s) as Lender may, in its reasonable discretion,
deem necessary or appropriate in such amounts, with such companies
and in such form as Lender deems satisfactory in its reasonable
business judgment, all at Borrower's sole expense.
(b) The Premises shall be separately scheduled with respect to the
Lender on any insurance policy obtained by Borrower or Ground Lessee and such
insurance shall be for a stipulated amount so as to avoid co-insurance. Borrower
must pay, or cause Ground Lessee to pay, promptly, when due, any premium on such
insurance. All insurance required under Paragraph 3.05(a) shall be written by
insurers of recognized financial standing which are authorized to do business in
the State of New Jersey and have, at the time any such insurance is issued or
renewed an ▇▇▇▇▇▇ ▇. Best Company, Inc. rating of A- or better (or equivalent
ratings by a generally recognized successor rating agency). All such policies
and renewals thereof (or binders evidencing the same) shall be delivered to
Lender at least thirty (30) days before the expiration of the existing policies,
shall have attached thereto a standard mortgagee clause entitling Lender to
collect any and all proceeds payable under such insurance, and shall contain a
waiver of subrogation by each insurer in favor of the Lender. In the event of a
change in ownership or of occupancy of the Mortgaged Property, or any portion
thereof, Borrower shall give immediate notice thereof to Lender. All such
insurance policies shall name Lender as an additional insured, as its interest
may appear, but without liability for the payment of premiums. Certificates of
insurance showing Lender as additional insured, premiums prepaid, shall be
deposited with Lender and shall contain provision for thirty (30) days notice to
Lender prior to any cancellation or non-renewal except for ten (10) days notice
for non-payment of premium. Borrower shall deliver evidence to Lender of full
payment of
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premiums for all insurance coverages required to be maintained hereunder on or
before the date of this Mortgage.
(c) In case of any Loss in excess of an amount equal to One Hundred
Thousand ($100,000.00) Dollars in Current Dollars, Borrower shall immediately
give Lender and the insurance companies that have insured against such risks,
notice of such Loss generally describing the nature and extent of such Loss.
Lender, Borrower and Ground Lessee shall jointly settle and adjust any Loss
under the insurance policies required to be maintained in Paragraph 3.05(a) and
the proceeds shall be paid to or upon the direction of Lender which shall be the
loss payee. Notwithstanding the foregoing, in the event of a total casualty or
in the event of a Default, or event or condition which with the giving of notice
or the passage of time would constitute a Default, shall have occurred hereunder
or under any of the other Loan Documents, Lender (or after entry of judgment of
foreclosure, purchaser at the sale, or the judgment creditor, as the case may
be) is, subject to the provisions hereof, hereby authorized to either: (A)
settle, adjust or compromise any claim under any insurance policies and Lender
shall act in its reasonable discretion without the consent of Borrower or Ground
Lessee; or (B) allow Borrower and Ground Lessee to settle, adjust or compromise
any claims for Loss with the insurance company or companies and the amount to be
paid upon the Loss. In all cases Lender is authorized to collect and receipt for
any such insurance proceeds and the expenses incurred by Lender in the
adjustment and collection of insurance proceeds shall be such additional
indebtedness secured hereby and shall be reimbursed to Lender upon demand with
interest thereon at the Default Interest Rate (as such term is defined in
Section 2.4(b) of the Loan Agreement) or may be deducted by Lender from said
insurance proceeds prior to any other application thereof.
Subject to the rights of Qualified Sublessees (as such term is
defined in the Ground Lease) and subleasehold financings which have been
approved by the Lender, the insurance proceeds with respect to any Loss from
destruction of twenty-five (25%) percent or more of the building constructed by
Ground Lessee on the Premises and occupied by Ground Lessee on the date any such
destruction occurs shall, if required by the Lender, be paid to the Lender to be
applied in reduction of the indebtedness secured hereby, whether due or not, in
such order as the Lender shall determine. The insurance proceeds with respect to
any Loss from destruction of less than twenty-five (25%) percent of the building
constructed by Ground Lessee on the Premises and occupied by Ground Lessee on
the date any such destruction occurs shall be made available to Borrower or
Ground Lessee to repair and restore (the "Restoration") such building provided,
however, all of the following conditions are satisfied (in no event shall the
Maturity Date be extended):
(1) no Default, or event which with the giving of notice or passage
of time would constitute a Default, shall have occurred and be continuing
hereunder or under any of the other Loan Documents;
(2) the insurance proceeds shall, in Lender's reasonable judgment,
be sufficient to complete the Restoration to an architectural and economic unit
of substantially the same character and the same value as existed immediately
prior to such casualty, or, if Lender shall determine, in its sole and absolute
discretion, that the insurance proceeds are insufficient,
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Borrower or Ground Lessee shall have deposited with Lender the amount of the
deficiency in cash or in other security acceptable to Lender within fifteen (15)
days after Lender's demand therefor;
(3) the Ground Lease remains in full force and effect;
(4) the insurers do not deny liability to the insureds;
(5) the Lender receives an estimate of the cost of Restoration
prepared by a licensed professional engineer or registered architect
satisfactory to Lender; and
(6) the Lender receives evidence that all Governmental Actions (as
defined in the Ground Lease) required prior to commencement of the Restoration
have been issued and the fees therefor paid in full.
If any of the foregoing conditions (1) through (6) in this Paragraph
3.05 are not satisfied, then such insurance proceeds shall, if required by the
Lender, be paid to the Lender, to be applied in reduction of the indebtedness
secured hereby, whether due or not, in such order as the Lender shall determine.
Notwithstanding anything herein to the contrary, in case of any Loss
after foreclosure proceedings have been instituted, all insurance proceeds
shall, at Lender's option, be used to pay the amount due in accordance with any
judgment of foreclosure that may be entered in any such proceedings, and the
balance, if any, shall be paid to the owner of the equity of redemption if said
owner shall then be entitled to the same, or as the court may otherwise direct.
In case of the foreclosure of this Mortgage, the court in its judgment may
provide that the mortgagee's clause attached to each of said insurance policies
may be cancelled and that the judgment creditor may cause a new loss clause to
be attached to each of said policies making the loss thereunder payable to said
judgment creditor. Any foreclosure judgment may further provide that in case of
any one or more redemptions made under said judgment, each successive redemptor
may cause the preceding loss clause attached to each insurance policy to be
cancelled and a new loss clause to be attached thereto, making the loss
thereunder payable to such redemptor. In the event of foreclosure sale, Lender
is hereby authorized, without the consent of Borrower, to assign any and all
insurance policies to the purchaser at the sale, or to take such other steps as
Lender may deem advisable, to cause the interest of such purchaser to be
protected by any of the said insurance policies.
Nothing contained in this Mortgage shall create any responsibility
or obligation on Lender to collect any amount owing on any insurance policy, to
rebuild, repair or replace any damaged or destroyed portion of the Mortgaged
Property, or to perform any act hereunder.
(d) If any insurance proceeds with respect to any Loss are not
required by the Lender in accordance with Paragraph 3.05(c) to be applied in
reduction of the indebtedness secured hereby (including the insurance proceeds
with respect to any destruction of less then twenty-five (25%) percent of the
building constructed by Ground Lessee on the Premises and occupied by Ground
Lessee on the date any such destruction occurs), then such insurance proceeds
shall be made available for Restoration by Lender, or such other depositary
designated by Lender, from time to time, to Borrower, Ground Lessee or at
Lender's option directly to contractors, sub-contractors, material suppliers and
other persons entitled to payment in accordance with and
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subject to such conditions to disbursement as Lender may impose to ensure that
the Restoration is fully completed in a good and workmanlike manner and paid for
and that no liens or claims arise by reason thereof, provided that Lender is
furnished with evidence reasonably satisfactory to Lender of the estimated cost
of Restoration and with architect's and other certificates, waivers of lien,
certificates, contractors' sworn statements, and other evidence of the estimated
cost thereof and of payments as Lender may require and approve in its sole and
absolute discretion. In addition to the foregoing, if the estimated cost of the
Restoration exceeds ten (10%) percent of the original principal amount of the
indebtedness secured hereby, Borrower shall also deliver, or cause Ground Lessee
to deliver, to Lender for its prior approval evidence satisfactory to Lender in
its sole and absolute discretion that the appraised value of the Mortgaged
Property after such work will not be less than its appraised value established
in the appraisal delivered to Lender on or prior to the date hereof and all
plans and specifications for such Restoration as Lender may require and approve
in its sole and absolute discretion. No payment made prior to the final
completion of the Restoration shall exceed ninety (90%) percent of the value of
the Restoration performed, from time to time, and at all times the undisbursed
balance of such proceeds remaining in the custody or control of Lender shall be,
in Lender's sole and absolute discretion, at least sufficient to pay for the
cost of completion of the Restoration, free and clear of any liens. Lender may,
at any time after the occurrence of a Default hereunder, and in its sole and
absolute discretion, procure and substitute for any and all of the insurance
policies so held as aforesaid, such other policies of insurance in such amounts
and carried in such companies as Lender may select. The cost thereof shall be
additional indebtedness secured hereby, shall be due upon demand and shall
accrue interest at the Default Interest Rate from the date incurred until repaid
by Borrower. Lender may commingle any such funds held by it hereunder and shall
not be obligated to pay any interest with respect to any such funds held by or
on behalf of Lender.
3.06 CONDEMNATION AND EMINENT DOMAIN. Any and all awards heretofore
or hereafter made or to be made to the present or any subsequent owner of the
Mortgaged Property by any governmental or other lawful authority for the taking,
by condemnation or eminent domain, of all or any part of the Mortgaged Property
(including any award from the United States government at any time after the
allowance of a claim therefor, the ascertainment of the amount thereto, and the
issuance of a warrant for payment thereof), are hereby assigned by Borrower to
Lender, which awards Lender is hereby authorized to negotiate, collect and
receive from the condemnation authorities. Lender is hereby authorized to give
appropriate receipts and acquittances therefor. Anything to the contrary
notwithstanding, interest on any and all amounts due under the Note and secured
hereby shall continue to accrue until the Note is paid in full. Borrower shall
give Lender immediate notice of the actual or threatened commencement of any
condemnation or eminent domain proceedings of which it has knowledge affecting
all or any part of the Mortgaged Property (including severance of, consequential
damage to or change in grade of streets), and shall immediately deliver to
Lender copies of any and all papers served in connection with any such
proceedings. Borrower further agrees to make, execute and deliver to Lender,
free and clear of any encumbrance of any kind whatsoever, any and all further
assignments and other instruments deemed necessary by Lender for the purpose of
validly and sufficiently assigning all awards and other compensation heretofore,
now and hereafter made to Borrower for any taking, either permanent or
temporary, under any such proceeding. Subject to the rights of
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Qualified Sublessees (as such term is defined in the Ground Lease) and
subleasehold financings which have been approved by the Lender, any such award
for any taking of that portion of the Mortgaged Property comprising the building
constructed and occupied by Ground Lessee and/or the land used by Ground Lessee
in connection therewith, shall, if required by the Lender, be paid to the Lender
to be applied to prepay the indebtedness secured hereby, provided, however, if
any such taking is for less than twenty-five (25%) percent of such land and/or
building and Ground Lessee shall demonstrate to the reasonable satisfaction of
the Lender that the Ground Lessee's use of the remaining land and building for
Ground Lessee's intended use remains financially viable, then any such award
shall be paid to Ground Lessee for Restoration in accordance with the provisions
of and in the same manner as is provided for insurance proceeds in Paragraph
3.05(d) hereof. Notwithstanding the foregoing, any expenses, including, without
limitation, attorneys' fees and expenses, incurred by Lender in intervening in
such action or compromising and settling such action or claim, or collecting any
such awards, shall be reimbursed to Lender first out of any such award.
3.07 MAINTENANCE OF PROPERTY. Except as Ground Lessee and Qualified
Sublessees may be permitted under the Ground Lease, no portion of the Mortgaged
Property shall be altered, removed or demolished, severed, sold or mortgaged,
without the prior written consent of Lender. In the event of the demolition or
destruction in whole or in part of any of the fixtures, chattels or articles of
personal property covered by this Mortgage or by any separate security agreement
executed in conjunction herewith, the same shall be replaced promptly by similar
fixtures, chattels and articles of personal property at least equal in value,
quality and condition to those replaced, free from any other security interest
therein, encumbrances thereon or reservation of title thereto. Borrower shall
promptly repair, restore or rebuild any building or other improvement or any
part thereof now or hereafter situated on the Premises that may become damaged
or be destroyed whether or not proceeds of insurance are available or sufficient
for such purpose. Any such building or other improvement or any part thereof
shall be repaired, restored or rebuilt so as to be of at least equal value and
of substantially the same character as prior to such damage or destruction.
Borrower further agrees not to permit, commit or suffer any waste,
impairment or deterioration of the Mortgaged Property or any part thereof, to
keep and maintain the Mortgaged Property and every part thereof in good repair
and condition, to effect such repairs as Lender may reasonably require, and,
from time to time, to make all necessary and proper replacements thereof and
additions thereto so that the Premises and such buildings, other improvements,
fixtures, chattels and articles of personal property will, at all times, be in
good condition, fit and proper for the respective purposes for which they were
originally erected or installed.
3.08 COMPLIANCE WITH LAWS. Borrower shall: (a) comply with, and
shall cause Ground Lessee to comply with, all statutes, ordinances, regulations,
rules, orders, decrees and other requirements relating to the Mortgaged
Property, or any part thereof, by any federal, state or local authority,
including, without limitation, the Americans with Disabilities Act of 1990, and
(b) observe and comply with, and shall cause Ground Lessee to observe and comply
with, all conditions and requirements necessary to preserve and extend any and
all rights, licenses, permits (including, without limitation, zoning variances,
special exceptions and nonconforming uses), privileges, franchises and
concessions that are applicable to the
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Mortgaged Property or that have been granted to or contracted for by Borrower in
connection with any existing or presently contemplated use of the Mortgaged
Property or any part thereof. Subject to the terms of the Ground Lease, Borrower
shall not initiate or acquiesce in any changes to or termination of any of the
foregoing or of zoning design actions affecting the use of the Mortgaged
Property or any part thereof without the prior written consent of Lender.
3.09 LIENS AND TRANSFERS. Except as provided in the Loan Agreement,
without Lender's prior written consent, Borrower shall not, directly or
indirectly, create, suffer or permit to be created or filed or to remain against
the Mortgaged Property, or any part thereof, hereafter any mortgage lien or
other lien, encumbrance or charge on, pledge of, or conditional sale or other
title retention agreement with respect to the Mortgaged Property, whether
superior or inferior to the lien of this Mortgage; provided, however, that
Borrower may, within ten (10) days after the filing thereof, contest in good
faith by appropriate legal or administrative proceedings any lien claim arising
from any work performed, material furnished or obligation incurred by Borrower
upon furnishing Lender at Borrower's sole cost and expense, either (i) a bond
issued by a company approved by Lender in its sole and absolute discretion
covering the lien claim, or (ii) an endorsement to Lender's title insurance
policy insuring Lender's interest in the Premises insuring over said lien claim,
each in form and substance satisfactory to Lender in its sole and absolute
discretion, or such other security and indemnification satisfactory to Lender,
in its sole and absolute discretion, for the final payment and discharge
thereof. In the event Borrower hereafter creates, suffers or permits any
superior or inferior lien to be attached to the Mortgaged Property or any part
thereof without such consent or without furnishing security as aforesaid, Lender
shall have the unqualified right, at its option, to accelerate the maturity of
the Note, causing the entire principal balance thereof and all interest accrued
thereon and all other charges due Lender under any of the Loan Documents to be
immediately due and payable.
If Borrower, without Lender's prior written consent, sells, leases,
transfers, conveys, assigns, pledges, hypothecates or otherwise disposes of the
title to all or any portion of the Mortgaged Property, whether by operation of
law, voluntarily or otherwise, or any interest (beneficial or otherwise)
thereto, or enters into any agreement to do any of the foregoing, Lender shall
have the unqualified right, at its option, to accelerate the maturity of the
Note, causing the entire principal balance and accrued interest and all other
charges due Lender under any of the Loan Documents to be immediately due and
payable. Without limiting the generality of the foregoing, each of the following
events shall be deemed a sale, transfer, conveyance, assignment, pledge,
hypothecation or other disposition prohibited by the foregoing sentence:
(a) if Borrower is a corporation, any sale, conveyance,
assignment or other transfer of all or any portion of the stock of
such corporation, that results in a material change in the identity
of the person(s) or entities in control of such corporation, or any
corporation which controls any of Borrower;
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(b) if Borrower is a partnership, any sale, conveyance,
assignment or other transfer of all or any portion of the
partnership interest of Borrower or any entity or entities in
control of Borrower, or any partnership which controls Borrower;
(c) if Borrower is a limited liability company, any
sale, conveyance, assignment or other transfer of all or any portion
of any manager interest or membership interest of any manager or
member, as the case may be, of Borrower;
(d) any sale, conveyance, assignment or other transfer
of all or any portion of the stock, partnership or membership
interest of any entity directly or indirectly in control of any
corporation, partnership or limited liability company constituting
any of Borrower or any corporation, partnership or limited liability
company which controls Borrower, or any sale, conveyance, assignment
or other transfer by Borrower in any corporation, partnership or
limited liability company in which Borrower has a controlling
interest, directly or indirectly; and
(e) any hypothecation of all or any portion of any
stock, partnership or membership (or manager, as the case may be)
interest of any of Borrower, or of all or any portion of the stock,
partnership or membership (or manager, as the case may be) interest
of any entity directly or indirectly in control of such corporation,
partnership or limited liability company or any corporation,
partnership or limited liability company which controls Borrower, or
any sale, conveyance, assignment or other transfer by Borrower in
any corporation, partnership or limited liability company in which
Borrower has a controlling interest, directly or indirectly.
Any waiver by Lender of the provisions of this Paragraph 3.09 shall
not be deemed to be a waiver of the right of Lender in the future to insist upon
strict compliance with the provisions hereof.
3.10 SUBROGATION TO PRIOR LIENHOLDER'S RIGHTS. If the proceeds of
the Loan secured hereby or any part thereof, or any amount paid out or advanced
by Lender is used directly or indirectly to pay off, discharge or satisfy, in
whole or in part, any prior lien or encumbrance upon the Mortgaged Property or
any part thereof, then Lender shall be subrogated to the rights of the holder
thereof in and to such other lien or encumbrance and any additional security
held by such holder, and shall have the benefit of the priority of the same.
3.11 LENDER'S DEALINGS WITH TRANSFEREE. In the event of the sale or
transfer, by operation of law, voluntarily or otherwise, of all or any part of
the Mortgaged Property, Lender shall be authorized and empowered to deal with
the vendee or transferee with regard to the Mortgaged Property, the indebtedness
secured hereby and any of the terms or conditions hereof as fully and to the
same extent as it might with Borrower, without in any way releasing or
discharging Borrower from its covenants hereunder, specifically including those
contained in Paragraph 3.09 hereof, and without waiving Lender's right of
acceleration pursuant to Paragraph 3.09 hereof.
3.12 STAMP TAXES. If at any time the United States government or any
federal, state or municipal governmental subdivision requires Internal Revenue
or other documentary stamps, levies or any tax on this Mortgage or on the Note,
or requires payment of the United
13
States Interest Equalization Tax on any of the indebtedness secured hereby, then
such indebtedness and all interest accrued thereon shall be and become due and
payable, at the election of the Lender, thirty (30) days after the mailing by
Lender of notice of such election to Borrower; provided, however, that such
election shall be unavailing, and this Mortgage and the Note shall be and remain
in effect, if Borrower may and does lawfully pay for such stamps or tax,
including interest and penalties thereon, to or on behalf of Lender.
3.13 CHANGE IN TAX LAWS. In the event of the enactment, after the
date of this Mortgage, of any law of the state in which the Premises are located
deducting from the value of the Premises, for the purpose of taxation, the
amount of any lien thereon, or imposing upon Lender the payment of all or any
part of the taxes, assessments, charges or liens hereby required to be paid by
Borrower, or changing in any way the laws relating to the taxation of mortgages
or debts secured by mortgages or Borrower's interest in the Mortgaged Property,
or the manner of collection of taxes, so as to affect this Mortgage or the
indebtedness secured hereby or the holder thereof, then Borrower, upon demand by
Lender, shall pay such taxes, assessments, charges or liens, or reimburse Lender
therefor; provided, however, that if, in the opinion of counsel for Lender, it
might be unlawful to require Borrower to make such payment or the making of such
payment might result in the imposition of interest beyond the maximum amount
permitted by law, then Lender may elect, by notice in writing given to Borrower,
to declare all of the indebtedness secured hereby to become due and payable
thirty (30) days after the giving of such notice. Nothing contained in this
Paragraph 3.13 shall be construed as obligating Lender to pay any portion of
Borrower's federal, state and local income tax.
3.14 INSPECTION OF PROPERTY. Borrower shall permit Lender and its
representatives and agents to inspect the Mortgaged Property from time to time
upon reasonable prior telephonic notice during normal business hours and as
frequently as Lender considers reasonable.
3.15 INSPECTION OF BOOKS AND RECORDS. Borrower shall keep and
maintain full and correct books and records showing in detail the income and
expenses of the Mortgaged Property and after demand therefor by Lender shall
permit Lender and its agents, employees and representatives to visit its
offices, discuss its financial affairs with its officers and independent public
accountants whether or not any representative of Borrower is present and to
examine and audit such books and records and all supporting vouchers and data,
copies of any leases encumbering the Premises and such other information as
Lender may deem reasonably necessary or appropriate at any time and from time to
time on Lender's request at Borrower's offices during Borrower's normal business
hours, at the address hereinabove identified or at such other location as may be
reasonably requested by Lender.
3.16 FINANCIAL STATEMENTS. Borrower shall deliver, or cause to be
delivered, to Lender, on at least an annual basis and at such other times (but
not more frequently than quarterly) as Lender may reasonably request, unaudited
financial statements (or audited if same exists) for Borrower and the Mortgaged
Property on a form approved by Lender setting forth the information therein as
of the immediately preceding calendar year, or as of the immediately preceding
period for which financial statements were requested, as the case may be,
containing income and expense statements and a balance sheet, prepared and
reviewed by
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an independent certified public accounting firm acceptable to Lender in
accordance with generally accepted accounting principles consistently applied
and certified to be true, complete and correct by the persons or entities to
which they apply and in such detail as Lender may require.
3.17 ACKNOWLEDGMENT OF DEBT. Borrower shall furnish from time to
time, within ten (10) days after Lender's request, a written statement, duly
executed and acknowledged by an authorized member or officer of Borrower,
specifying the amount due under the Note, this Mortgage and any of the other
Loan Documents and disclosing whether any alleged offsets or defenses exist
against the indebtedness secured hereby.
3.18 OTHER AMOUNTS SECURED. Borrower acknowledges and agrees that
this Mortgage secures the entire principal amount of the Note and interest
accrued thereon, regardless of whether any or all of the loan proceeds are
disbursed on or after the date hereof, and regardless of whether the outstanding
principal is repaid in whole or part and future advances made at a later date,
as well as any amounts owed to Lender pursuant to Paragraphs 3.03 and 3.04
hereof, any and all litigation and other expenses pursuant to Paragraphs 4.05
and 4.06 hereof and any other amounts as provided herein or in any of the other
Loan Documents, including, without limitation, the payment of any and all loan
commissions, service charges, liquidated damages, expenses and advances due to
or paid or incurred by Lender in connection with the Loan, all in accordance
with the loan commitment issued in connection with this transaction and the Loan
Documents.
3.19 DECLARATION OF SUBORDINATION. At the option of Lender, this
Mortgage shall become subject and subordinate, in whole or in part (but not with
respect to priority of entitlement to insurance proceeds or any condemnation or
eminent domain award) to any and all leases of all or any part of the Mortgaged
Property upon the execution by Lender and recording thereof, at any time
hereafter, in the appropriate official records of the county wherein the
Premises are situated, of a unilateral declaration to that effect.
3.20 RELEASES. Lender, without notice and without regard to the
consideration, if any, paid therefor, and notwithstanding the existence at that
time of any inferior liens thereon, may release from the liens of Lender all or
any part of the Mortgaged Property, or release from liability any person or
entity obligated to repay any indebtedness secured hereby, without in any way
affecting the liability of any party pursuant to the Note, this Mortgage or any
of the other Loan Documents, including, without limitation, any guaranty given
as additional security for the indebtedness secured hereby, and without in any
way affecting the priority of the lien of this Mortgage, and may agree with any
party liable therefor to extend the time for payment of any part or all of such
indebtedness. Any such agreement shall not in any way release or impair the lien
created by this Mortgage or reduce or modify the liability of any person or
entity obligated personally to repay the indebtedness secured hereby, but shall
extend the lien hereof as against the title of all parties having any interest,
subject to the indebtedness secured hereby, in the Mortgaged Property.
3.21 BORROWER'S REPRESENTATIONS. Borrower hereby represents,
warrants and covenants to Lender that:
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(a) Borrower is lawfully seized of the Mortgaged
Property hereby mortgaged, granted and conveyed and has the right to
mortgage, grant and convey the Mortgaged Property, that the
Mortgaged Property is unencumbered except by the Permitted
Encumbrances, if any, and that Borrower will represent, warrant and
defend generally the title to the Mortgaged Property, or any portion
thereof, against any and all claims and demands, subject only to the
Permitted Encumbrances, if any.
(b) Borrower (i) is a Delaware limited liability
company, duly organized and validly existing under the laws of the
State of Delaware, is in good standing in the State of Delaware and
is qualified to do business in the State of New Jersey as a foreign
limited liability company; (ii) has the power and authority to own
its properties and to carry on its business as now being conducted;
and (iii) is in compliance with all laws, regulations, ordinances
and orders of public authorities applicable to it.
(c) The execution, delivery and performance of the Note,
this Mortgage and the other Loan Documents: (i) have received all
necessary trust, partnership, governmental, company or corporate
approval; (ii) do not violate any provision of any law, any order of
any court or agency of government or any indenture, agreement or
other instrument to which Borrower is a party, or by which it or any
portion of the Mortgaged Property is bound; and (iii) are not in
conflict with, nor will result in breach of, or constitute (with due
notice or lapse of time) a default under any indenture, agreement,
or other instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever, upon any of
its property or assets, except as contemplated by the provisions of
this Mortgage.
(d) The Note, this Mortgage and the other Loan
Documents, when executed and delivered by Borrower will constitute
the legal, valid and binding obligations of Borrower in accordance
with their respective terms.
(e) All information, reports, papers, balance sheets,
statements of profit and loss, and data given to Lender or its
agents and employees regarding Borrower are accurate and correct in
all material respects, and are complete insofar as completeness may
be necessary to give Lender a true and accurate knowledge of the
subject matter.
(f) There is not now pending against or affecting
Borrower nor, to the best of Borrower's knowledge, is there
threatened any action, suit or proceeding at law, in equity or
before any administrative agency which, if adversely determined,
would materially impair or affect the financial condition or
operation of Borrower or the Mortgaged Property.
3.22 UTILITIES. Borrower will (except to the extent paid by lessees)
pay all utility charges incurred in connection with the Premises and all
improvements thereon, and shall maintain all utility services now or hereafter
available for use at the Premises.
3.23 HAZARDOUS WASTE. Borrower hereby represents, warrants,
covenants and otherwise agrees as follows:
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(a) Except as set forth in that certain two-volume Phase
I Environmental Site Assessment dated August 30, 2001 ( the "2001
Site Assessment") prepared by P.T. & L. Environmental Consultants,
Inc. under Project No. 012364, and that certain Limited Phase II
Environmental Investigation Report dated October 2, 2001 (the "2001
Supplemental Report") prepared by P.T. & L. Environmental
Consultants, Inc. under Project No. 012380, and except as set forth
in that certain Phase I Environmental Site Assessment dated December
1, 1993 (the "1993 Site Assessment") prepared by Certified
Engineering & Testing Co., Inc. under Project No. N30112 (the 2001
Site Assessment, 2001 Supplemental Report, and 1993 Site Assessment,
including all attachments and appendices to the foregoing, are
referred to collectively as the "Environmental Report") Borrower
represents and warrants, to the best of its knowledge, that there
are no Hazardous Substances (as hereinafter defined) in the
environment at, upon or under the Premises in quantities or
concentrations exceeding those allowed pursuant to applicable
Environmental Laws and further represents and warrants that during
the periods of ownership of the Premises by Borrower, and, to the
best of its knowledge, prior to Borrower's acquisition of its
interest therein, there have not been any Releases of any Hazardous
Substances at, upon or under the Premises in quantities or
concentrations exceeding those allowed pursuant to applicable
Environmental Laws. Borrower warrants that it will not cause or
allow there to be any Hazardous Substances Managed (as hereinafter
defined) at, upon or under the Premises in a manner that does not
comply with all applicable Environmental Laws or Releases (as
hereinafter defined) at, upon or under the Premises in violation of
applicable Environmental Laws including but not limited to
Management (as hereinafter defined) or Releases (as hereinafter
defined) in connection with any operations, construction,
restoration, rehabilitation, or repairs on or at the Premises.
(b) Except as otherwise set forth in the Environmental
Report, Borrower represents and warrants that there are no above
ground storage tanks ("Acts") or underground storage tanks ("Uses")
at, upon or under the Premises, and further represents and warrants
that during the periods of ownership of the Premises by Borrower,
and, to the best of its knowledge, prior to Borrower's acquisition
of its interest therein, there have been no ASTs or USTs at, upon or
under the Premises. Borrower warrants that it will not cause or
allow any ASTs or USTs to be installed at, upon or under the
Premises.
(c) Borrower covenants and agrees (i) to comply with all
applicable Environmental Laws (as hereinafter defined) and
Environmental Permits (as hereinafter defined); (ii) to require the
tenants and others operating on the Property at its request to
comply with applicable Environmental Laws and Environmental Permits;
(iii) to provide Lender immediate notice of any correspondence,
notices, demands or communications of any nature whatsoever received
by Borrower relating to any alleged or actual violation, or any
investigation of any alleged or actual violation, of any applicable
Environmental Law or relating to any alleged or actual presence of
Hazardous Substances at, under, over or upon the Property, and to
immediately provide Lender copies of any such correspondence,
notices, demands or communications which are in writing; (iv) to
comply with Borrower's undertaking set forth in that certain letter
dated as of the date hereof from Borrower to Lender
17
concerning the 2001 Supplemental Report; and (v) to advise Lender in
writing as soon as Borrower becomes aware of any Environmental
Condition or circumstance which makes any of Borrower's
representations or warranties contained herein incomplete or
inaccurate. In the event Lender determines that there is any
evidence that any such Environmental Condition or circumstance
exists, whether or not described in any communication or notice to
Borrower or Lender, Borrower agrees, at its own expense and at the
request of Lender, to permit an environmental audit to be conducted
by Lender or an independent agent selected by Lender. This provision
shall not relieve Borrower from conducting its own environmental
audits or taking any other steps necessary to comply with any
applicable Environmental Law or Environmental Permits. If, in the
opinion of Lender, there exists any uncorrected violation of any
applicable Environmental Law or Environmental Permits or any
Environmental Condition which requires or may require any cleanup,
removal or other remedial action under any applicable Environmental
Law, and such cleanup, removal or other remedial action is not
conducted in compliance in all respects with all applicable
Environmental Laws and in a continuously diligent manner, the same
shall, at the option of Lender, constitute a Default.
(d) Lender and Indemnitees (as hereinafter defined) and
their respective agents and representatives, shall have the right,
subject to the rights of tenants under any lease, at any reasonable
time to enter and visit the Mortgaged Property for the purposes of
observing the Mortgaged Property, taking and removing soil or
groundwater samples, and conducting tests on any part of the
Mortgaged Property. Neither Lender nor Indemnitees shall have a
duty, however, to visit or observe the Mortgaged Property or to
conduct tests, and no site visit, observation or testing by Lender
or any Indemnitee shall impose any liability on Lender or any
Indemnitee. In no event shall any site visit, observation or testing
by Lender or any Indemnitee be a representation that Hazardous
Substances are or are not present in, on or under the Premises, or
that there has been or shall be compliance with any law, regulation
or ordinance pertaining to Hazardous Substances or any other
applicable governmental law. Neither Borrower nor any other party is
entitled to rely on any site visit, observation or testing by Lender
or any Indemnitee. Borrower acknowledges that neither Lender nor any
Indemnitee owes any duty of care to protect Borrower or any other
party against, or to inform Borrower or any other party of, any
Hazardous Substances or any other adverse condition affecting the
Premises. Lender and Indemnitees shall disclose to Borrower, and may
in the sole and absolute discretion of Lender and Indemnitees
disclose to any other party, any report or findings made as a result
of, or in connection with, any site visit, observation or testing by
Lender or Indemnitees. Borrower understands and agrees that neither
Lender nor Indemnitees makes any representation or warranty to
Borrower or any other party regarding the truth, accuracy or
completeness of any such report or findings that may be disclosed.
Borrower also understands that, depending on the results of any site
visit, observation or testing by Lender or any Indemnitee which are
disclosed to Borrower, Borrower may have a legal obligation to
notify one or more environmental agencies of the results and that
such reporting requirements are site-specific and are to be
evaluated by
18
Borrower without advice or assistance from Lenders or Indemnitees.
Lender or any Indemnitee shall give Borrower reasonable notice
before entering the Premises, and any such party shall make
reasonable efforts to avoid interfering with Borrower's or Ground
Lessee's use of the Premises in exercising any rights provided in
this Paragraph 3.23(d).
(e) Borrower represents and warrants that (i) all
necessary Environmental Permits pertaining to the Mortgaged Property
have been obtained by the appropriate party, and that all reports,
notices, and other documents required under any applicable
Environmental Law in connection with the Mortgaged Property have
been filed; (ii) Borrower is not a party to any litigation or
administrative proceeding arising under any applicable Environmental
Law in connection with the Mortgaged Property, nor to the best
knowledge of Borrower is there any such litigation or proceeding
contemplated or threatened; (iii) to its best knowledge the
Mortgaged Property is free from any judgment, decree, order or
citation related to or arising out of any applicable Environmental
Law; and (iv) until the Loan is paid in full, the Mortgaged Property
shall not be used in any manner that would either subject the
Mortgaged Property or any part thereof to the provisions of the New
Jersey Industrial Site Recovery Act, N.J.S.A. 13:1k-6 et seq
("ISRA") or cause the Mortgaged Property to be deemed an "industrial
establishment" unless subject to a valid "de Minimis Quantity
Exemption" pursuant to the provisions of ISRA.
(f) Borrower covenants and agrees that it will
indemnify, defend and hold harmless Lender and any and all current,
future or former officers, directors, employees or agents of Lender
(collectively, the "Indemnitees") from any and all Losses (as
hereinafter defined) in any way arising from: (i) any breach of any
covenant, representation or warranty in Paragraph 3.23 of this
Mortgage; (ii) any Environmental Liability (as hereinafter defined);
(iii) any failure to obtain or comply with any Environmental Permit;
(iv) any Release (as hereinafter defined); (v) any Management; (vi)
any Environmental Condition (as hereinafter defined); (vii) the
presence of any Hazardous Substance at any property other than the
Premises which is present due to either (A) any direct or indirect
transportation whatsoever of a Hazardous Substance from the
Premises, or by any Indemnitor, to the property at which such
Hazardous Substance is present and cause any tenant or occupant of
the Premises to cause an indemnity like this to be delivered in the
Lender's favor and any guarantors or subtenants or (B) migration or
other movement from the Premises to such other property of a
Hazardous Substance Released at the Premises; and (viii) any
Response (as hereinafter defined) arising out of or in connection
with any of the matters described in this Paragraph 3.23(f). This
indemnification shall not apply to matters arising due to Lender's
gross negligence or willful misconduct. Borrower's defense of Lender
pursuant to this Paragraph 3.23(f) shall be by legal counsel
retained by Borrower and acceptable to Lender, in Lender's
reasonable judgment, it being acknowledged that Borrower's current
legal counsel in connection with the Loan would be acceptable for
such purpose, and all out-of-pocket costs associated therewith
including all legal fees, costs and expenses of all actions and
reasonable legal fees of additional counsel appointed by Lender to
supervise any actions, shall be paid by Borrower.
19
(g) Borrower hereby consents and agrees that Lender or
any Indemnitee may at any time and from time to time without further
consent from Borrower do any of the following events, and the
liability of Borrower under Paragraph 3.23 of this Mortgage shall be
unconditional and absolute and shall in no way be impaired or
limited by any of the following events, whether occurring with or
without notice to Borrower or with or without consideration: (i) any
extensions of time for performance required by any of the Loan
Documents or extension or renewal of the Note; (ii) any sale,
assignment or foreclosure of the Note, this Mortgage or any of the
other Loan Documents or any sale or transfer of the Mortgaged
Property (whether by deed in lieu of foreclosure or otherwise);
(iii) any change in the composition of Borrower; (iv) the accuracy
or inaccuracy of the representations and warranties made by Borrower
herein or in any of the Loan Documents; (v) the release of Borrower
or of any other person or entity from performance or observance of
any of the agreements, covenants, terms or conditions contained in
any of the Loan Documents by operation of law, Lender's or
Indemnitees' voluntary act or otherwise; (vi) the release or
substitution in whole or in part of any security for the Loan; (vii)
Lender's failure to record this Mortgage or to file any financing
statement (or Lender's improper recording or filing thereof) or to
otherwise perfect, protect, secure or insure any lien or security
interest given as security for the Loan; (viii) the modification of
the terms of any one or more of the Loan Documents; or (ix) the
taking or failure to take any action of any type whatsoever. No such
action which Lender or any Indemnitee shall take or fail to take in
connection with the Loan Documents or any collateral for the Loan,
nor any course of dealing with Borrower or any other person, shall
limit, impair or release Borrower's obligations in Paragraph 3.23 of
this Mortgage, affect this Mortgage in any way or afford Borrower
any recourse against Lender or any Indemnitee. Nothing contained in
this Paragraph 3.23(g) shall be construed to require Lender or any
Indemnitee to take or refrain from taking any action referred to
herein.
(h) The following definitions apply throughout
this Mortgage:
(i) The term "Environmental Condition" shall
mean the presence of any Hazardous Substance
at, upon, over, under or emanating from the
Mortgaged Property.
(ii) The term "Environmental Laws" shall mean,
whether judicial or administrative, all
federal, state, and local laws, statutes,
rules, regulations, ordinances, permits,
guides, orders, consent decrees, including
with respect to the forgoing, any judicial
and administrative actions and decrees,
relating to health, safety and environmental
matters as now exist and as may be enacted
or amended after the date hereof. Such laws
and regulations include, but are not limited
to, the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq., as
amended; the Comprehensive Environmental
Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., as amended
("CERCLA"); the Toxic Substance Control Act,
15 U.S.C. Section 2601 et seq., as amended;
the Clean Water Act 33 U.S.C. Section 1251
et seq., as amended; the Clean Air Act, 42
20
U.S.C. Section 7401 et seq., as amended; the
Spill Compensation and Control Act, N.J.S.A.
58:10-23.11 et seq., as amended; the
Industrial Site Recovery Act, N.J.S.A.
13:1k-6 et seq., as amended; the Underground
Storage of Hazardous Substances Act,
N.J.S.A. 58:10A-21 et seq., as amended; the
Toxic Catastrophe Prevention Act, N.J.S.A.
13:1K-19, et seq., as amended; the Worker
and Community Right to Know Act, N.J.S.A.
34:5A-1, et seq., as amended; the Pollution
Prevention Act, N.J.S.A. 13:D-35, et seq.,
as amended; the Solid Waste Management Act,
N.J.S.A. 13:1E-1, et seq., as amended; the
Solid Waste Utility Control Act, N.J.S.A.
48:13A-1, et seq., as amended; the Air
Pollution Control Act, N.J.S.A. 26:2C-1, et
seq., as amended; the Water Pollution
Control Act, N.J.S.A. 58:10A-1, et seq., as
amended; the Flood Hazard Control Act,
N.J.S.A. 58:16A-50, et seq., as amended; the
Freshwater Wetlands Protection Act, N.J.S.A.
12:3-1, et seq., as amended; the Noise
Control Act, N.J.S.A. 13:IG-1, et seq., as
amended; the Pesticide Control Act, N.J.S.A.
13:1F-1, et seq., as amended; federal, state
and local environmental cleanup programs;
federal, state and local environmental lien
programs; Occupational Safety and Health Act
of 1970, 29 U.S.C. Section 651 et seq., as
amended ("OSHA"); and U.S. Department of
Transportation regulations applicable to the
transportation of Hazardous Substances.
(iii) The term "Environmental Liability" shall
mean any and all liabilities, whether fixed,
absolute, or contingent, arising under any
applicable Environmental Law or arising
under or in connection with any
Environmental Permit or Environmental
Condition; any and all claims of any nature
whatsoever by a third party (including but
not limited to governmental agencies)
arising in any way under any applicable
Environmental Law or arising under or in
connection with any Environmental Permit or
Environmental Condition, including but not
limited to demands for environmental
cleanup, investigation or corrective action;
any and all Losses incurred or sustained as
a result of alleged or actual violations of
applicable Environmental Laws or
Environmental Permits, any and all alleged
or actual Environmental Conditions, any and
all Releases, any and all Management, or any
and all Responses.
(iv) The term "Environmental Permit" shall mean
authorization by any governmental entity to
conduct activities governed in whole or in
part by one or more Environmental Laws.
(v) The term "Hazardous Substance" shall mean
hazardous substances, hazardous wastes,
hazardous waste constituents, hazardous
by-products, hazardous materials, hazardous
chemicals, extremely hazardous substances,
pesticides, oil and other petroleum products
and toxic substances, including, without
limitation, asbestos and PCBs, as those
21
terms are defined pursuant to or encompassed
by any Environmental Law or by trade custom
and usage.
(vi) The term "Lender" shall mean and include
Lender and Lender's successors, assigns,
parents, subsidiaries and affiliated
companies, and legal representatives,
including all other holders, from time to
time, of the Note or any participation
therein.
(vii) The terms "Loss" or "Losses" shall mean any
and all costs, expenses and expenditures,
including, without limitation, court costs
and reasonable attorneys', experts' and
consultants' fees and costs of litigation or
any other losses whatsoever, including,
without limitation, costs and expenses of
investigation, cleanup, prevention of
migration, monitoring, evaluating,
assessment, removal or remediation of
Hazardous Substances whether or not such
costs or expenses are incurred in response
to any governmental or third party action,
claim or directive; damages; punitive
damages actually awarded; obligations;
deficiencies; liabilities, whether fixed,
absolute, accrued, contingent or otherwise
and whether direct, primary or secondary,
known or unknown; claims; encumbrances;
penalties; demands; assessments; and
judgments.
(viii) The terms "Manage", "Managed" or
"Management" shall mean the generation,
handling, manufacturing, processing,
treatment, storing, use, reuse, refinement,
recycling, reclaiming, blending, burning,
recovery, incineration, accumulation,
transportation, transfer, disposal, release
or abandonment of any Hazardous Substances,
by any person at any property (including but
not limited to facilities or properties
other than the Mortgaged Property, as
applicable).
(ix) The terms "Release", "Released" or
"Releases" shall mean any actual or
threatened spilling, leaking, pumping,
pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or
disposing of Hazardous Substances into the
environment.
(x) The terms "Respond" or "Response" shall mean
any action taken by any person, whether or
not in response to a governmental or third
party action, claim or directive, to
correct, remove, remediate, clean up,
prevent migration of, monitor, evaluate,
investigate or assess, as appropriate, any
Release of a Hazardous Substance,
Environmental Condition, Management or
actual or alleged violation of an
Environmental Law or Environmental Permit.
(i) Any provisions of this Mortgage to the contrary
notwithstanding, the representations, warranties, covenants,
agreements and indemnification obligations contained in this
Paragraph 3.23 shall survive the foreclosure of the lien of this
Mortgage by Lender or a third party or the conveyance thereof by
deed in lieu of foreclosure (and shall not be limited to the amount
of any deficiency in any foreclosure
22
sale of the Mortgaged Property), and all indicia of the termination
of the relationship between Borrower and Lender, including, but not
limited to, the repayment of all amounts due under the Loan
Documents, the cancellation of the Note, and the release,
cancellation or discharge of this Mortgage.
(j) Notwithstanding any other provisions hereof, the
Borrower shall have no personal liability to the Lender in respect
of Paragraph 3.23 of this Mortgage and the Lender's remedies
hereunder shall be limited to the Security (as that term is defined
in the Loan Agreement), except in the case of any claim arising out
of fraud or intentional misrepresentation by the Borrower or either
of its immediate predecessors in title to the Premises in connection
with the execution and delivery of this Mortgage or any of the other
Loan Documents.
(k) In the event that Lender or any of the other
Indemnitees incurs any costs (including reasonable attorneys' fees,
and expenses and court costs) or Losses to collect or enforce
Borrower's obligations under this Paragraph 3.23, Borrower shall,
upon demand by Lender or the other Indemnitees, immediately
reimburse Lender or the other Indemnitees therefor, plus interest
from the date so incurred until paid at the Default Interest Rate
(as that term is defined in the Note), including, but not limited
to, reasonable attorneys' fees and expenses and court costs incurred
in any litigation, and bankruptcy and administrative proceedings,
and appeals therefrom.
3.24 ASSIGNMENT OF LEASES AND RENTS. Borrower hereby assigns to
Lender directly and absolutely, and not merely collaterally, the interest of
Borrower as landlord under the Ground Lease of the Premises, the Borrower's
right, title and interest in and to the Guaranty, any and all subleases of the
Premises, or any part thereof, and the rents payable under the Ground Lease and
any and all other leases and subleases of the Premises, or any portion thereof,
or any installments of money payable pursuant to any agreement or any sale of
the Premises or any part thereof, including but not limited to proceeds of the
purchase option granted under the Ground Lease, subject only to a license, if
any, granted by Lender to Borrower with respect thereto prior to the occurrence
of a Default. Borrower has executed and delivered an Assignment of Leases and
Rents which grants to Lender specific rights and remedies in respect of the
Ground Lease and such other leases and governs the collection of rents
thereunder and from the use of the Premises, and such rights and remedies so
granted shall be cumulative of those granted herein.
The collection of such rents and the application thereof as
aforesaid shall not cure or waive any Default or notice of default hereunder or
invalidate any act done pursuant to such notice, except to the extent any such
Default is fully cured. Failure or discontinuance of Lender at any time, or from
time to time, to collect any such moneys shall not impair in any manner the
subsequent enforcement by Lender of the right, power and authority herein
conferred on Lender. Nothing contained herein, including the exercise of any
right, power or authority herein granted to Lender, shall be, or be construed to
be, an affirmation by Lender of any tenancy, lease or option, or an assumption
of liability under, or the subordination of the lien or charge of this Mortgage
to any such tenancy, lease or option. Borrower hereby agrees that, in the event
Lender exercises its rights as provided for in this Paragraph 3.24 or in the
Assignment of Leases and Rents, Borrower waives any right to compensation for
the use of
23
Borrower's furniture, furnishings or equipment in the Premises for the period
such assignment of rents or receivership is in effect, it being understood that
the rents derived from the use of any such items shall be applied to Borrower's
obligations hereunder as provided herein.
Nothing herein contained shall be construed as making or
constituting Lender a "mortgagee in possession" in the absence of the taking of
actual possession of the Premises by Lender pursuant to the provisions set forth
herein or in the Assignment of Leases and Rents. In the exercise of the powers
herein granted Lender, no liability shall be asserted or enforced against
Lender, all such liability being expressly waived and released by Borrower.
3.25 SECURITY AGREEMENT. (a) This Mortgage shall be deemed a
"Security Agreement" as defined in the New Jersey Uniform Commercial Code (the
"NJUCC"), and creates a security interest in favor of Lender in all property now
or hereafter owned by Borrower including, without limitation, all personal
property, fixtures and goods affecting property either referred to or described
herein or in any way connected with the use or enjoyment of the Mortgaged
Property to the extent that under applicable law the same would be governed by
the NJUCC (collectively, the "UCC Collateral"). The remedies for any violation
of the covenants, terms and conditions of the agreements herein contained shall
be as prescribed herein or by general law or, as to such part of the security
which is also reflected in any Financing Statement filed to perfect the security
interest herein created, by the specific statutory consequences now or
hereinafter enacted and specified in the NJUCC, all at Lender's sole election.
Borrower and Lender agree that the filing of such a Financing Statement in the
records normally having to do with personal property shall not be construed as
in any way derogating from or impairing the intention of the parties hereto that
everything used in connection with the production of income from the Premises or
adapted for use therein or which is described or reflected in this Mortgage is,
and at all times and for all purposes and in all proceedings both legal or
equitable shall be, regarded as part of the real estate irrespective of whether
(i) any such item is physically attached to the improvements, (ii) serial
numbers are used for the better identification of certain equipment items
capable of being thus identified in a recital contained herein or in any list
filed with Lender, or (iii) any such item is referred to or reflected in any
such Financing Statement so filed at any time. Similarly, the mention in any
such Financing Statement of (A) the rights in or the proceeds of any fire or
hazard insurance policy, or (B) any award in eminent domain proceedings for a
taking or for loss of value, or (C) Borrower's interest as lessor in any present
or future lease or rights to income growing out of the use or occupancy of the
Mortgaged Property whether pursuant to lease or otherwise, shall never be
construed as in any way altering any of the rights of Lender under this Mortgage
or impugning the priority of the Lender's lien granted hereby or by any other
recorded document, but such mention in the Financing Statement is declared to be
for the protection of the Lender in the event any court or judge shall at any
time hold with respect to (A), (B) and (C) that notice of Lender's priority of
interest to be effective against a particular class of persons, including, but
not limited to, the Federal Government and any subdivisions or entity of the
Federal Government, must be filed in the NJUCC records or elsewhere
(b) Borrower hereby authorizes Lender to file one or more Financing
Statements
24
(and any continuations thereof) as Lender deems appropriate and at Buyer's cost
and expense in order to perfect the security interest created herein. Borrower
shall execute, acknowledge and deliver to Lender, within ten (10) days after
request by Lender, any and all security agreements, financing statements and any
other similar security instruments reasonably required by Lender, in form and of
content reasonably satisfactory to Lender, covering all property of any kind
whatsoever owned by Borrower that, in the reasonable opinion of Lender, is
essential to the operation of the Mortgaged Property and concerning which there
may be any doubt whether title thereto has been conveyed, or a security interest
therein perfected, by this Mortgage under the laws of the state in which the
Premises are located. Borrower shall further execute, acknowledge and deliver
any financing statement, affidavit, continuation statement, certificate or other
document as Lender may request in order to perfect, preserve, maintain, continue
and extend such security instruments. Borrower further agrees to pay to Lender
all fees, costs and expenses (including, without limitation, all reasonable
attorneys' fees and expenses and court costs) incurred by Lender in connection
with the preparation, execution, recording, filing and refiling of any such
document.
3.26 FIXTURE FINANCING STATEMENT. From the date of its recording,
this Mortgage shall be effective as a fixture financing statement with respect
to all goods constituting part of the Mortgaged Property which are or are to
become fixtures related to the real estate described herein. For this purpose,
the following information is set forth:
(a) Name and Address of Debtor:
ALX of Paramus LLC
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(b) Name and Address of Secured Party:
Svenska Handelsbanken AB (publ)
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(c) This document covers goods which are or are to
become fixtures.
3.27 INTEREST LAWS. It being the intention of Lender and Borrower,
for the purposes of this Paragraph 3.27 to comply with the laws of the State of
New Jersey, it is agreed that notwithstanding any provision to the contrary in
the Note, this Mortgage or any of the other Loan Documents, no such provision
shall require the payment or permit the collection of any amount ("Excess
Interest") in excess of the maximum amount of interest permitted by law to be
charged for the use or detention, or the forbearance in the collection, of all
or any portion of the indebtedness evidenced by the Note. If any Excess Interest
is provided for, or is adjudicated to be provided for, in the Note, this
Mortgage or any of the other Loan Documents, then in such event: (a) the
provisions of this Paragraph 3.27 shall govern and control; (b) neither Borrower
nor any other party obligated under the terms of the Note or any of the other
Loan Documents shall be obligated to pay any Excess Interest; (c) any Excess
Interest that Lender may have received hereunder shall, at the option of Lender,
be (i) applied
25
as a credit against the then unpaid principal balance under the Note, accrued
and unpaid interest thereon not to exceed the maximum amount permitted by law,
or both, (ii) refunded to the payor thereof, or (iii) any combination of the
foregoing; (d) the Interest Rate (as that term is defined in the Note) shall be
subject to automatic reduction to the maximum lawful contract rate allowed under
the applicable usury laws of the State of New Jersey, and the Note, this
Mortgage and the other Loan Documents shall be deemed to be automatically
reformed and modified to reflect such reduction in the Interest Rate; and (e)
neither Borrower nor any other party obligated under the terms of the Note or
any of the other Loan Documents shall have any action against Lender for any
damages whatsoever arising out of the payment or collection of any Excess
Interest.
IV
DEFAULTS AND REMEDIES
4.01 EVENTS CONSTITUTING DEFAULTS. Each of the following events
shall constitute a default (a "Default") under this Mortgage:
(a) Failure of Borrower to make payment (i) with respect
to interest or principal due under the Note within five (5) days of
the due date thereof, or (ii) with respect to any other amount
Borrower is obliged to pay under the Loan Agreement within ten (10)
days after a request for payment therefor by the Bank;
(b) Failure of Borrower to comply with any of the
requirements of Paragraph 3.09;
(c) Failure of Borrower to perform or observe any other
covenant, warranty or other provision contained in this Mortgage and
not otherwise covered in any of the other provisions of this
Paragraph 4.01; provided, if such default is capable of being cured,
Borrower shall have a period of thirty (30) days after the date on
which notice of the nature of such failure is given by Lender to
Borrower to cure such default; and, if such default is by its nature
capable of being cured but cannot be cured within said thirty (30)
day period and Borrower diligently commences and prosecutes such
cure during said thirty (30) day period no Default shall occur so
long as Borrower diligently and continuously prosecutes such cure to
completion;
(d) The occurrence of any Event of Default (as such term
is defined in the Loan Agreement), or any default or event of
default under the terms of any of the other Loan Documents after the
expiration of the applicable notice and grace period, if any; or
(e) Termination of the Ground Lease, the occurrence of
an Event of Default (as such term is defined in the Ground Lease) or
the assignment of the Ground Lease to any party not acceptable to
the Lender acting in its sole discretion, or if the Ground Lessee or
other entity related to the Ground Lessee acceptable to the Lender
is not the lessee in occupancy under the Ground Lease of the portion
of the Mortgaged Property identified on Exhibit H to the Loan
Agreement to be occupied by the Ground Lessee.
26
4.02 ACCELERATION OF MATURITY. Upon the occurrence of any Default,
at the election of Lender, the entire principal balance then outstanding under
the Note, together with all unpaid interest accrued thereon and all other sums
due from Borrower thereunder, under this Mortgage or any other Loan Document
shall become immediately due and payable with interest thereon at the Default
Interest Rate.
4.03 FORECLOSURE OF MORTGAGE; DEED IN LIEU OF FORECLOSURE. Upon the
occurrence of any Default, or at any time thereafter, Lender may, at its option,
proceed to foreclose the lien of this Mortgage by judicial proceedings in
accordance with the laws of the state in which the Premises are located and/or
to require Borrower to prepare, execute and deliver to Lender promptly after
Lender's written demand therefor, a deed in lieu of foreclosure in recordable
form in which Lender (or at Lender's option, Lender's designee) shall be the
grantee, conveying all of Borrower's right, title and interest in and to the
Mortgaged Property to Lender, and to exercise any other remedies of Lender
provided herein or in the other Loan Documents, or which Lender may have at law
or in equity. Any failure by Lender to exercise any such option shall not
constitute a waiver of its right to exercise the same at any other time.
Borrower shall not be entitled to the payment of any compensation or other
consideration from Lender for executing and delivering any such deed in lieu of
foreclosure. Borrower shall be solely liable for the payment of any realty
transfer fee due upon recording any such deed in lieu of foreclosure. The deed
in lieu of foreclosure required herein (i) shall be subject only to the
Permitted Encumbrances, any permitted subleases under the Ground Lease approved
by Lender and which have received a non-disturbance agreement from Lender, and
any permitted leasehold mortgages securing loans to any Sublessee under any such
subleases which have received a recognition agreement from Lender; and (ii)
shall contain at Lender's option a recital that the lien of this Mortgage is not
intended by the grantor or grantee to merge in the fee simple title to the
Mortgaged Property and that this Mortgage remains a valid and subsisting first
lien against the fee simple title thereto.
4.04 LENDER'S CONTINUING OPTIONS. The failure of Lender to declare a
Default or exercise any one or more of its options to accelerate the maturity of
the indebtedness secured hereby and to foreclose the lien hereof following any
Default as aforesaid, or to exercise any other option granted to Lender
hereunder in any one or more instances, or the acceptance by Lender of partial
payments of such indebtedness, shall neither constitute a waiver of any such
Default or of Lender's options hereunder nor establish, extend or affect any
grace period for payments due under the Note, but such options shall remain
continuously in force. Acceleration of maturity, once claimed hereunder by
Lender, may, at Lender's option, be rescinded by written acknowledgment to that
effect by Lender and shall not affect Lender's right to accelerate maturity upon
or after any future Default.
4.05 LITIGATION EXPENSES. In any proceeding to foreclose the lien of
this Mortgage or to enforce or exercise any other remedy of Lender under the
Note, this Mortgage, the other Loan Documents or in any other proceeding
whatsoever in connection with the Mortgaged Property in which Lender is named as
a party, including but not limited to the enforcement or exercise of any
remedies after Lender accepts a deed in lieu of foreclosure or obtains a
judgment of foreclosure, there shall be allowed and included, as additional
indebtedness secured hereby in the judgment or decree resulting therefrom, all
out-of-pocket and reasonable expenses paid or incurred in connection with the
prosecution or defense of any
27
such proceeding by or on behalf of Lender, including, without limitation, all
reasonable attorneys' fees and expenses and court costs, appraiser's fees,
outlays for documentary evidence and expert advice, stenographers' charges,
publication costs, survey costs, and costs (which may be estimated as to items
to be expended after entry of such judgment or decree) of procuring all
abstracts of title, title searches and examinations, title insurance policies
and any similar data and assurances with respect to title to the Premises as
Lender may deem reasonably necessary, and any other reasonable expenses and
expenditures which may be paid or incurred by or on behalf of Lender either to
prosecute or defend in any such proceeding (without regard to whether any
defense is asserted by Borrower, Ground Lessee, Guarantor, or any sublessee of
the Premises and without regard to whether Lender is the prevailing party) or to
evidence to bidders at any sale pursuant to any such judgment or decree the true
condition of the title to or value of the Premises or the Mortgaged Property.
All expenses of the foregoing nature, and such expenses as may be incurred in
the protection of any of the Mortgaged Property and the maintenance of the lien
of this Mortgage thereon, including, without limitation, all costs, fees and
expenses of, and court costs incurred by, any attorney employed by Lender in any
litigation affecting the Note, this Mortgage or any of the other Loan Documents,
or any of the Mortgaged Property, or the Ground Lease or the Guaranty, or in
preparation for the commencement or defense of any proceeding or threatened suit
or proceeding in connection therewith, or any defense by Lender of any actions
or claims attacking any liens granted to Lender under this Mortgage or any of
the other Loan Documents, shall be immediately due and payable by Borrower,
together with interest thereon at the Default Interest Rate until paid.
4.06 PERFORMANCE BY LENDER. In the event of any Default, or in the
event any action or proceeding is instituted which materially affects, or
threatens to materially affect, Lender's interest in the Mortgaged Property,
Lender may, but need not, make any payment or perform any act on Borrower's
behalf in any form and manner deemed expedient by Lender, and Lender may, but
need not, make full or partial payments of principal or interest on prior
encumbrances, if any; purchase, discharge, compromise or settle any tax lien or
other prior or junior lien or title or claim thereof; redeem from any tax sale
or forfeiture affecting the Mortgaged Property; or contest any tax or assessment
thereon. All monies paid for any of the purposes authorized herein and all
out-of-pocket expenses paid or incurred in connection therewith, including,
without limitation, reasonable attorneys' fees and court costs, and any other
monies advanced by Lender to protect the Mortgaged Property and the lien of this
Mortgage, shall be so much additional indebtedness secured hereby, and shall
become immediately due and payable by Borrower to Lender without notice and with
interest thereon at the Default Interest Rate from the date an advance is made
to and including the date the same is paid. The action or inaction of Lender
shall never be construed to be a waiver of any right accruing to Lender by
reason of any default by Borrower. Lender shall not incur any personal liability
because of anything it may do or omit to do hereunder, nor shall any acts of
Lender act as a waiver of Lender's right to accelerate the maturity of the
indebtedness secured by this Mortgage or to proceed to foreclose this Mortgage.
4.07 RIGHT OF POSSESSION. In any case in which, under the provisions
of this Mortgage, Lender has a right to institute foreclosure proceedings,
whether or not the entire
28
principal sum secured hereby becomes immediately due and payable as aforesaid,
or whether before or after the institution of proceedings to foreclose the lien
hereof or before or after sale thereunder, Borrower shall, forthwith upon demand
of Lender, surrender to Lender, and Lender shall be entitled, subject to the
rights of the Ground Lessee and Qualified Sublessees (as such term is defined in
the Ground Lease) which have been recognized by Lender, to take actual
possession of, the Mortgaged Property or any part thereof, personally or by its
agent or attorneys, and Lender, in its discretion, may enter upon and take and
maintain possession of all or any part of the Mortgaged Property, together with
all documents, books, records, papers and accounts of Borrower or the then owner
of the Mortgaged Property relating thereto, and may exclude Borrower, such owner
and any agents and servants thereof wholly therefrom and may, as
attorney-in-fact or agent of Borrower or such owner, or in its own name as
Lender and under the powers herein granted:
(a) hold, operate, manage and control all or any part of
the Mortgaged Property and conduct the business, if any, thereof,
either personally or by its agents, with full power to use such
measures, whether legal or equitable, as in its discretion may be
deemed proper or necessary to enforce the payment or security of the
rents, issues, deposits, profits and avails of the Mortgaged
Property, including, without limitation, actions for recovery of
rent, and actions in forcible detainer, all without notice to
Borrower;
(b) cancel or terminate any lease or sublease of all or
any part of the Mortgaged Property for any cause or on any ground
that would entitle Borrower to cancel the same;
(c) elect to disaffirm any lease or sublease of all or
any part of the Mortgaged Property made subsequent to this Mortgage
or subordinated to the lien hereof;
(d) extend or modify any then existing leases and make
new leases of all or any part of the Mortgaged Property, which
extensions, modifications and new leases may provide for terms to
expire, or for options to lessees to extend or renew terms to
expire, beyond the maturity date of the Loan and the issuance of a
deed or deeds to a purchaser or purchasers at a foreclosure sale, it
being understood and agreed that any such leases, and the options or
other such provisions to be contained therein, shall be binding upon
Borrower, all persons whose interests in the Mortgaged Property are
subject to the lien hereof and the purchaser or purchasers at any
foreclosure sale, notwithstanding any redemption from sale,
discharge of the indebtedness secured hereby, satisfaction of any
foreclosure judgment or issuance of any certificate of sale or deed
to any such purchaser; and
(e) make all necessary or proper repairs, decorations,
renewals, replacements, alterations, additions, betterments and
improvements in connection with the Mortgaged Property as may seem
judicious to Lender, to insure and reinsure the Mortgaged Property
and all risks incidental to Lender's possession, operation and
management thereof, and to receive all rents, issues, deposits,
profits and avails therefrom.
29
Nothing herein contained shall be construed as constituting Lender as mortgagee
in possession in the absence of the actual taking of possession of the Premises.
4.08 PRIORITY OF PAYMENTS. Any rents, issues, deposits, profits and
avails of the Property received by Lender after taking possession of all or any
part of the Mortgaged Property, or pursuant to any assignment thereof to Lender
under the provisions of this Mortgage and prior to any foreclosure sale or the
execution and delivery to Lender of a deed in lieu of foreclosure for the
Mortgaged Property in accordance with Paragraph 4.03, shall be applied in
payment of or on account of the following, in such order as Lender or, in case
of a receivership, as the court, may in its sole and absolute discretion
determine:
(a) operating expenses of the Mortgaged Property
(including, without limitation, reasonable compensation to Lender,
any receiver of the Mortgaged Property, any agent or agents to whom
management of the Mortgaged Property has been delegated, and also
including lease commissions and other compensation for and expenses
of seeking and procuring tenants and entering into leases,
establishing claims for damages, if any, and paying premiums on
insurance hereinabove authorized);
(b) taxes, assessments for municipal improvements, water
and sewer charges now due or that may hereafter become due on the
Mortgaged Property, or that may become a lien thereon prior to the
lien of this Mortgage;
(c) any and all repairs, decorating, renewals,
replacements, alterations, additions, betterments and improvements
of the Mortgaged Property (including, without limitation, the cost,
from time to time, of installing or replacing any personal property
therein, and of placing the Mortgaged Property in such condition as
will, in the judgment of Lender or any receiver thereof, make it
readily rentable or saleable);
(d) any indebtedness secured by this Mortgage or any
deficiency that may result from any foreclosure sale pursuant
hereto; and
(e) any remaining funds to Borrower or its successors or
assigns, as their interests and rights may appear.
Any rents, issues, deposits, profits and avails of the Property received by
Lender after any foreclosure sale or the execution and delivery to Lender of a
deed in lieu of foreclosure for the Mortgaged Property in accordance with
Paragraph 4.03, shall belong to Lender (or the purchaser at such foreclosure
sale or the grantee in the deed in lieu of foreclosure, as the case may be) and
Borrower shall have no claim or interest thereto.
4.09 APPOINTMENT OF RECEIVER. Upon the occurrence of any Default, or
at any time thereafter, Lender may, at its option, apply to a court of competent
jurisdiction for the appointment of a receiver of the Mortgaged Property. Such
appointment may be made either before or after sale, without notice; without
regard to the solvency or insolvency, at the time of application for such
receiver, of the person or persons, if any, liable for the payment of the
indebtedness secured hereby; without regard to the value of the Mortgaged
Property at such time; without bond being required of the applicant; and Lender
hereunder or any employee
30
or agent thereof may be appointed as such receiver. Such receiver shall have all
powers and duties customarily granted to court-appointed receivers, including
the power to take possession, control and care of the Mortgaged Property and to
collect all rents, issues, deposits, profits and avails thereof and apply all
funds received toward the indebtedness secured by this Mortgage, and in the
event of a foreclosure sale and a deficiency where Borrower has not waived its
statutory rights of redemption, during the full statutory period of redemption,
as well as during any further times when Borrower or its devisees, legatees,
administrators, legal representatives, successors or assigns, except for the
intervention of such receiver, would be entitled to collect such rents, issues,
deposits, profits and avails, and shall have all other powers that may be
necessary or useful in such cases for the protection, possession, control,
management and operation of the Mortgaged Property during the whole of any such
period. To the extent permitted by law, such receiver may extend or modify any
then existing leases and make new leases of the Mortgaged Property or any part
thereof, which extensions, modifications and new leases may provide for terms to
expire, or for options to lessees to extend or renew terms to expire, beyond the
maturity date of the Loan, it being understood and agreed that any such leases,
and the options or other such provisions to be contained therein, shall be
binding upon Borrower and all persons whose interests in the Mortgaged Property
are subject to the lien hereof, and upon the purchaser or purchasers at any such
foreclosure sale, notwithstanding any redemption from sale, discharge of
indebtedness, satisfaction of foreclosure judgment or issuance of a deed to any
purchaser.
4.10 FORECLOSURE SALE. In the event of any foreclosure sale of the
Mortgaged Property, the same may be sold in one or more parcels. Lender may be
the purchaser at any foreclosure sale of the Mortgaged Property or any part
thereof.
4.11 APPLICATION OF PROCEEDS. The proceeds of any foreclosure sale
of the Mortgaged Property, or any part thereof, shall be distributed and applied
in the following order of priority: (a) on account of all costs and expenses
incident to the foreclosure proceedings, including all such items as are
mentioned in Paragraphs 4.05 and 4.06 hereof; (b) all other items that, under
the terms of this Mortgage, constitute secured indebtedness additional to that
evidenced by the Note, with interest thereon at the Default Interest Rate; (c)
all principal and interest, together with any prepayment charge, if any,
remaining unpaid under the Note, in the order of priority specified by Lender in
its sole and absolute discretion; and (d) the balance, if any, to Borrower or
its successors or assigns, as their interests and rights may appear.
4.12 APPLICATION OF DEPOSITS. In the event of any Default, Lender
may, at its option, without being required to do so, apply any monies or
securities that constitute deposits made to or held by Lender or any depositary
pursuant to any of the provisions of this Mortgage toward payment of any of
Borrower's obligations under the Note, this Mortgage or any of the other Loan
Documents in such order and manner as Lender may elect in its sole and absolute
discretion. When the indebtedness secured hereby has been fully paid, any
remaining deposits shall be paid to Borrower or to the then owner or owners of
the Mortgaged Property. Such deposits are hereby pledged as additional security
for the prompt payment of the indebtedness evidenced by the Note and any other
indebtedness secured hereby and shall be held to be applied irrevocably by such
depositary for the purposes for which made hereunder and shall not be subject to
the direction or control of Borrower.
31
4.13 INDEMNIFICATION. Borrower shall indemnify and hold harmless
Lender and any and all current, future or former officers, directors, employees,
representatives and agents of Lender, and each of their respective successors
and assigns, from and against any and all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without
limitation, reasonable attorneys' fees, expenses and court costs, but not
including internal costs of staffing or administration of Lender) incurred by or
asserted against Lender by reason of (a) the ownership of the Mortgaged Property
or any interest therein or receipt of any rents, issues, proceeds or profits
therefrom; (b) any accident, injury to or death of persons, or loss of or damage
to property occurring in, on or about the Premises or any part thereof or on the
adjoining sidewalks, curbs, adjacent parking areas or streets; (c) any use,
nonuse or condition in, on or about the Premises or any part thereof or on the
adjoining sidewalks, curbs, adjacent parking areas or streets; (d) any failure
on the part of Borrower to perform or comply with any of the terms of this
Mortgage; (e) performance of any labor or services or the furnishing of any
materials or other property in respect of the Premises or any part thereof; or
(f) any defense by Lender of any actions or claims (i) attacking any lien rights
of Lender, or (ii) challenging foreclosure of the lien of this Mortgage or any
security interests granted herein, by Borrower, Ground Lessee, Guarantor, or any
other party (without regard to whether Lender is the prevailing party); (g) the
exercise of any remedies by Lender under any of the Loan Documents, including
but not limited to the exercise of any remedies after Lender accepts a deed in
lieu of foreclosure or obtains a judgment of foreclosure; and (h) any realty
transfer fee due upon the recording of any deed in lieu of foreclosure or any
Sheriff's deed delivered in connection with any foreclosure of this Mortgage.
Any amounts owed to Lender by reason of this Paragraph 4.13 shall constitute
additional indebtedness which is secured by this Mortgage and shall become
immediately due and payable upon demand therefor, and shall bear interest at the
Default Interest Rate from the date such loss or damage is sustained by Lender
until paid. The obligations of Borrower under this Paragraph 4.13 shall survive
any termination, discharge, cancellation or satisfaction of this Mortgage, the
delivery to Lender of any deed in lieu of foreclosure and the entry of any
judgment of foreclosure.
4.14 WAIVER OF RIGHT OF REDEMPTION AND OTHER RIGHTS. To the full
extent permitted by law, Borrower agrees that it will not at any time or in any
manner whatsoever take any advantage of any stay, exemption or extension law or
any so-called "Moratorium Law" now or at any time hereafter in force, nor take
any advantage of any law now or hereafter in force providing for the valuation
or appraisement of the Mortgaged Property, or any part thereof, prior to any
sale thereof to be made pursuant to any provisions herein contained, or to any
decree, judgment or order of any court of competent jurisdiction; or after such
sale claim or exercise any rights under any statute now or hereafter in force to
redeem the property so sold, or any part thereof, or relating to the marshalling
thereof, upon foreclosure sale or other enforcement hereof. To the full extent
permitted by law, Borrower hereby expressly waives any and all rights it may
have to require that the Premises be sold as separate tracts or units in the
event of foreclosure. To the full extent permitted by law, Borrower hereby
expressly waives any and all rights of redemption on its own behalf, on behalf
of all persons claiming or having an interest (direct or indirect) by, through
or under Borrower and on behalf of each and every person acquiring any interest
in or title to the Premises subsequent to the date
32
hereof, it being the intent hereof that any and all such rights of redemption of
Borrower and such other persons, are and shall be deemed to be hereby waived to
the full extent permitted by applicable law. To the full extent permitted by
law, Borrower agrees that it will not, by invoking or utilizing any applicable
law or laws or otherwise, hinder, delay or impede the exercise of any right,
power or remedy herein or otherwise granted or delegated to Lender, but will
permit the exercise of every such right, power and remedy as though no such law
or laws have been or will have been made or enacted. To the full extent
permitted by law, Borrower hereby agrees that no action for the enforcement of
the lien or any provision hereof shall be subject to any defense which would not
be good and valid in an action at law upon the Note.
V
MISCELLANEOUS
5.01 NOTICES. Any notice that Lender or Borrower may desire or be
required to give to the other hereunder shall be in writing and shall be
personally delivered, transmitted by postage prepaid registered or certified
mail, or by facsimile, to the parties as follows:
To Borrower: ALX of Paramus LLC
c/o Alexander's Inc.
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇
ALX of Paramus, LLC
c/o Alexander's Inc.
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Real Estate
Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇
with a copy (for
information
purposes only) to: Winston & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: 212-294-4700
To Lender: Svenska Handelsbanken AB (publ)
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Banking Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
& Wood, LLP
33
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copies of such notices, for informational purposes only, shall be transmitted by
mail to counsel to the parties, as the parties may from time to time designate.
All notices and other communications shall be deemed to have been duly given on
the date of receipt if delivered personally, on the date five (5) days after
posting if transmitted by mail, or in the case of facsimile at the time sent,
provided that any notice to be given to the Lender shall be effective only when
actually received by the Lender. Either party may change its address for
purposes hereof by notice to the other. Except as otherwise specifically
required herein, notice of the exercise of any right or option granted to Lender
by this Mortgage is not required to be given.
5.02 TIME OF ESSENCE. It is specifically agreed that time is of the
essence of this Mortgage with respect to payments required hereunder.
5.03 COVENANTS RUN WITH LAND. All of the covenants of this Mortgage
shall run with the land constituting the Premises.
5.04 GOVERNING LAW; LITIGATION. Except as otherwise specifically
provided herein, the place of the location of the Mortgaged Property being the
State of New Jersey, this Mortgage shall be construed and enforced according to
the laws of that State. To the extent that this Mortgage may operate as a
security agreement under the Uniform Commercial Code, Lender shall have all
rights and remedies conferred therein for the benefit of a secured party, as
such term is defined therein. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER
HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
MORTGAGE SHALL BE TRIED AND DETERMINED EITHER IN THE STATE OR FEDERAL COURT
LOCATED IN THE COUNTY OF BERGEN, STATE OF NEW JERSEY, OR, AT THE SOLE OPTION OF
LENDER, IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK OR IN ANY OTHER COURT IN
WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT
MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS PARAGRAPH 5.04. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES PERSONAL SERVICE OF PROCESS UPON
BORROWER, AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED
MAIL DIRECTED TO BORROWER AT THE ADDRESS STATED IN THIS MORTGAGE AND SERVICE SO
MADE WILL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.
5.05 RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies set
forth in this
34
Mortgage are cumulative, and the holder of the Note and of every other
obligation secured hereby may recover judgment hereon, issue execution therefor,
and resort to every other right or remedy available at law or in equity, without
first exhausting and without affecting or impairing the security of any right or
remedy afforded hereby.
5.06 SEVERABILITY. If any provision of this Mortgage or any
paragraph, sentence, clause, phrase or word, or the application thereof, is held
invalid in any circumstance, the validity of the remainder of this Mortgage
shall be construed as if such invalid part were never included herein.
5.07 NON-WAIVER. Unless expressly provided in this Mortgage to the
contrary, no consent or waiver, whether express or implied, by any interested
party referred to herein to or of any breach or default by any other interested
party referred to herein regarding the performance by such party of any
obligations contained herein shall be deemed a consent to or waiver of the party
of any obligations contained herein or shall be deemed a consent to or waiver of
the performance by such party of any other obligations hereunder or the
performance by any other interested party referred to herein of the same, or of
any other, obligations hereunder.
5.08 HEADINGS. The headings of sections and paragraphs in this
Mortgage are for convenience or reference only and shall not be construed in any
way to limit or define the content, scope or intent of the provisions hereof.
5.09 GRAMMAR. As used in this Mortgage, the singular shall include
the plural, and masculine, feminine and neuter pronouns shall be fully
interchangeable, where the context so requires. Whenever the words "including",
"include" or includes" are used in this Mortgage, they should be interpreted in
a non-exclusive manner as though the words ", without limitation," immediately
followed the same.
5.10 SUCCESSORS AND ASSIGNS. This Mortgage and all provisions hereof
shall inure to the benefit of Lender and shall be binding upon Borrower, its
permitted successors, permitted assigns, and all other persons or entities
claiming under or through Borrower. The word "Borrower," when used herein, shall
include all such persons and entities and any others liable for the payment of
the indebtedness secured hereby or any part thereof, whether or not they have
executed the Note or this Mortgage. The word "Lender," when used herein, shall
include Lender's successors, assigns and legal representatives, including all
other holders, from time to time, of the Note.
5.11 NO JOINT VENTURE. Borrower and Lender acknowledge and agree
that under no circumstances shall Lender be deemed to be a partner or joint
venturer with Borrower or any beneficiary of Borrower, including, without
limitation, by virtue of its becoming a mortgagee in possession or exercising
any of its rights pursuant to this Mortgage or pursuant to any of the other Loan
Documents, or otherwise.
5.12 ADDITIONAL FEES.
(a) Borrower agrees to pay on demand all of the
out-of-pocket costs and
35
expenses of Lender (including, without limitation, the reasonable
fees and out-of-pocket expenses of Lender's counsel) in connection
with the preparation, negotiation, execution and delivery of the
Note, this Mortgage, any of the other Loan Documents and all other
instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith (including, without
limitation, all amendments, supplements and waivers executed and
delivered pursuant hereto or in connection herewith).
(b) The reasonable costs and expenses which Lender
incurs in any manner or way with respect to the following shall be
part of the indebtedness secured hereby, payable by Borrower on
demand, if at any time after the date of this Mortgage, Lender: (i)
employs counsel for advice or other representation (A) with respect
to the amendment or enforcement of the Note, this Mortgage or any of
the other Loan Documents, (B) to represent Lender in any work-out or
any type of restructuring of the Loan, or any litigation, contest,
dispute, suit or proceeding or to commence, defend or intervene or
to take any other action in or with respect to any litigation,
contest, dispute, suit or proceeding (whether instituted by the
Lender, Borrower or any other person or entity) in any way or
respect relating to the Note, this Mortgage, any of the other Loan
Documents, Borrower's affairs or the realization on any collateral
securing the indebtedness secured hereby (whether prior to or after
entry of a judgment of foreclosure), or (C) to enforce any of the
rights of Lender with respect to Borrower; and/or (ii) seeks to
enforce or enforces any of the rights and remedies of Lender with
respect to Borrower. Without limiting the generality of the
foregoing, such expenses, costs, charges and fees include:
reasonable fees, costs and expenses of attorneys, outside
accountants and consultants; court costs and expenses; court
reporter fees, costs and expenses; long distance telephone charges
of counsel or such professionals; telegram and telecopier charges;
and expenses for travel, lodging and food as to such counsel or
professionals.
5.13 LOAN PROCEEDS. The proceeds of the Loan are to be disbursed by
Lender to Borrower in accordance with the provisions contained in the Note. All
advances and indebtedness arising and accruing under the Note from time to time
shall be secured hereby to the same extent as though the Note were fully
incorporated in this Mortgage, and the occurrence of any event of default under
the Note shall constitute a default under this Mortgage entitling Lender to all
of the rights and remedies conferred upon Lender by the terms of this Mortgage
or by law, as in the case of any other default.
5.14 RECAPTURE. To the extent Lender receives any payment by or on
behalf of Borrower, which payment or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to Borrower or its respective estate, trustee, receiver, custodian or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the obligation
or part thereof which has been paid, reduced or satisfied by the amount so
repaid shall be reinstated by the amount so repaid and shall be included within
the indebtedness hereby secured as of the date such initial payment, reduction
or satisfaction
36
occurred.
5.15 NO LIEN MANAGEMENT AGREEMENTS To the full extent permitted by
law, Borrower shall include a "no lien" provision in any property management
agreement hereafter entered into by Borrower with a property manager for the
Mortgaged Property, whereby the property manager waives and releases any and all
lien rights that the property manager, or anyone claiming through or under the
property manager, may have pursuant to the Construction Lien Law, N.J.S.A.
2A:44A-1 et seq. or otherwise. Such property management agreement containing
such "no lien" provision or a short form thereof shall, at Lender's request, be
recorded with the Recorder of Deeds of Bergen County, New Jersey, as
appropriate.
5.16 DEED IN TRUST. If title to the Mortgaged Property or any part
thereof is now or hereafter becomes vested in a trustee, any prohibition or
restriction contained herein against the creation of any lien on the Mortgaged
Property shall be construed as a similar prohibition or restriction against the
creation of any lien on or security interest in the beneficial interest of such
trust.
5.17 COLLATERAL PROTECTION ACT. Unless Borrower provides Lender with
evidence of the insurance required by this Mortgage or any other Loan Document,
Lender may purchase insurance at Borrower's expense to protect Lender's interest
in the Mortgaged Property or any other collateral for the indebtedness secured
hereby. This insurance may, but need not, protect Borrower's interests. The
coverage Lender purchases may not pay any claim that Borrower makes or any claim
that is made against Borrower in connection with the Mortgaged Property or any
other collateral for the indebtedness secured hereby. Borrower may later cancel
any insurance purchased by Lender, but only after providing Lender with evidence
that Borrower has obtained insurance as required under by this Mortgage or any
other Loan Document. If Lender purchases insurance for the Mortgaged Property or
any other collateral for the indebtedness secured hereby, Borrower shall be
responsible for the costs of that insurance, including interest in any other
charges that Lender may lawfully impose in connection with the placement of the
insurance, until the effective date of the cancellation or expiration of the
insurance. The costs of the insurance may be added to the indebtedness secured
hereby. The costs of the insurance may be more than the cost of insurance that
Borrower may be able to obtain on its own.
5.18 OFFSETS, COUNTERCLAIMS AND DEFENSES. Any assignee of this
Mortgage and the Note shall take the same free and clear of all offsets,
counterclaims or defenses of any nature whatsoever which the Borrower may have
against any assignor of this Mortgage and the Note, and no such offset,
counterclaim or defense shall be interposed or asserted by the Borrower in any
action or proceeding brought by any such assignee upon this Mortgage or the Note
and any such right to interpose or assert any such offset, counterclaim or
defense in any such action or proceeding is hereby expressly waived by the
Borrower.
5.19 PERFORMANCE OF OTHER AGREEMENTS. The Borrower shall observe and
perform each and every term to be observed or performed by the Borrower pursuant
to the terms of any agreement or recorded instrument affecting or pertaining to
the Mortgaged Property.
5.20 NO CREDITS. Borrower will not claim or demand or be entitled to
receive any
37
credit or credits on the principal indebtedness to secure payment thereon, for
so much of the taxes assessed against the Mortgaged Property as is equal to the
tax rate applied to the principal indebtedness due on this Mortgage or any part
thereof and no deduction shall be claimed from the taxable value of the
Mortgaged Property by reason of this Mortgage.
5.21 EXCULPATION. Notwithstanding anything to the contrary contained
in the Loan Documents (as hereinafter defined), the liability and obligation of
the Borrower to perform and observe and make good the obligations contained in
the Loan Documents and to pay the Loan in accordance with the provisions of the
Note and this Mortgage shall not be enforced by any action or proceeding wherein
damages or any money judgment or any deficiency judgment or any judgment
establishing any personal obligation or liability shall be sought, collected or
otherwise obtained against the Borrower or against any past, present or future
member, partner, officer, director or shareholder of the Borrower, as
applicable, and the Lender for itself and its successors and assigns irrevocably
waives any and all right to ▇▇▇ for, seek or demand any such damages, money
judgment, deficiency judgment or personal judgment against the Borrower or
against any past, present or future member, partner, officer, director or
shareholder of the Borrower, as applicable, under or by reason of or in
connection with the Loan Documents and agrees to look solely to the security and
collateral held under or in connection with the Loan Documents for the
enforcement of such liability and obligation of the Borrower. Nothing contained
in this Paragraph 5.21 shall be construed (i) as preventing the Lender from
naming the Borrower or any past, present or future member, partner, officer,
director or shareholder of the Borrower, as applicable, in any action or
proceeding brought by the Lender to enforce and to realize upon the security and
collateral provided under or in connection with the Loan Documents so long as no
judgment, order, decree or other relief in the nature of a personal or
deficiency judgment or otherwise establishing any personal obligation shall be
asked for, taken, entered or enforced against the Borrower or against any past,
present or future member, partner, officer, director or shareholder of the
Borrower, as applicable, in any such action or proceeding, or (ii) as modifying,
qualifying or affecting in any manner whatsoever the lien and security interests
created by this Mortgage and the other Loan Documents or the enforcement thereof
by the Lender, or (iii) as modifying, qualifying or affecting in any manner
whatsoever the personal recourse undertakings, obligations and liabilities of
the Borrower under Paragraph 3.23 of this Mortgage entitled "Hazardous Waste,"
or (iv) as modifying, qualifying or affecting in any manner whatsoever the
personal recourse undertakings, obligations and liabilities of Borrower under
the Environmental Indemnity Agreement of even date herewith made by Borrower for
the benefit of Lender, or (v) as modifying, qualifying or affecting in any
manner whatsoever the personal recourse liability of the Borrower for any claim
arising out of any of the following actions of the Borrower: (a) fraud or
intentional misrepresentation by the Borrower or any of its Affiliates (as such
term is defined in the Loan Agreement) in connection with the execution and
delivery of the Note or other Loan Documents, (b) misapplication of security
deposits under the Ground Lease, (c) collection of Rents (as such term is
defined in the Assignment of Leases and Rents) under the Ground Lease more than
one month in advance, (d) misapplication of casualty insurance proceeds or
condemnation awards or Purchase Option sale proceeds under the Ground Lease, or
(e) for any breach of Sections 5.10 or 6.11 of the Loan Agreement.
38
5.22 GROUND LEASE. This Mortgage is prior and superior to the Ground
Lease, and, in respect thereof, the Borrower hereby warrants, represents and
covenants with the Lender that:
(a) the Ground Lease is valid, enforceable against Borrower in
accordance with its terms and is in full force and effect on the date hereof; no
Event of Default (as such term is defined in the Ground Lease) has occurred and
no event has occurred which with the giving of notice or passage of time or both
would constitute such an Event of Default;
(b) the Borrower shall not (i) enter into any agreement with the
Ground Lessee to amend, modify, renew, or in any manner change the terms of the
Ground Lease or the rent thereunder, either orally or in writing and whether or
not permitted to do so by the terms of the Ground Lease, without the prior
written consent of the Lender which consent may be withheld in the Lender's sole
and absolute discretion; or (ii) enter into any agreement with the Guarantor to
amend, modify, renew, or in any manner change the terms of the Guaranty either
orally or in writing and whether or not permitted to do so by the terms of the
Guaranty, without the prior written consent of the Lender which consent may be
withheld in the Lender's sole and absolute discretion;
(c) the occurrence of any Event of Default (as defined in the Ground
Lease) under the Ground Lease shall ipso facto constitute a Default under this
Mortgage;
(d) the Borrower shall (i) promptly notify the Lender in writing of
the occurrence of any default or Event of Default known to the Borrower under
the Ground Lease or any instrument or agreement related thereto including but
not limited to the Guaranty, (ii) promptly notify the Lender of receipt by the
Borrower of any notice noting or claiming the occurrence of any default or Event
of Default under the Ground Lease or any instrument or agreement relating
thereto including but not limited to the Guaranty, and (iii) promptly cause a
copy of each such notice received by the Borrower to be delivered to the Lender;
(e) the Borrower shall furnish to the Lender ten (10) days after the
mailing by the Lender of a written request therefor, but not more than four (4)
times per year, proof reasonably satisfactory to the Lender of payment of all
items which are required to be paid by the Ground Lessee or the Borrower under
the Ground Lease or any instrument or agreement related thereto;
(f) the Lender shall have the right, at its option, to perform the
obligations of the Borrower under the Ground Lease without the Lender waiving
any other of its rights under this Mortgage. Should the Lender exercise its
right hereunder to cure a default under the Ground Lease, the Borrower shall
reimburse the Lender for any expenses the Lender shall have incurred pursuant to
the provisions of this Paragraph 5.22, and any such expenditures shall become a
lien upon the Mortgaged Property and shall together with interest at the Default
Interest Rate be secured by this Mortgage. The Borrower shall take all
reasonable steps to insure the Lender will have a reasonable opportunity at
Lender's option, in its sole and absolute discretion, to cure any or all
defaults under the Ground Lease;
39
(g) the Borrower shall not agree, or consent, to any assignment of
the Ground Lease by the Ground Lessee whether or not permitted to do so by the
terms of the Ground Lease, without the prior written consent of the Lender,
including but not limited to agreeing or consenting to any leasehold mortgage
made by Ground Lessee of its right, title and interest in and to the Premises
under the Ground Lease and the leasehold estate created thereby. Lender will
grant its consent to a leasehold mortgage given to secure a loan to Ground
Lessee the proceeds of which are used by Ground Lessee to construct the initial
improvements on the Premises provided, however, (i) no Default has occurred and
is continuing; (ii) no Event of Default has occurred under the Ground Lease and
is continuing; (iii) no event has occurred which with the giving of notice or
passage of time or both would constitute a Default under this Mortgage or an
Event of Default under the Ground Lease; (iv) such leasehold mortgage is fully
subordinate to this Mortgage; (v) the holder of such leasehold mortgage is and
remains an entity which is a member of the IKEA Group of companies; (vi) such
leasehold mortgage provides expressly that neither such leasehold mortgage nor
any participation in such leasehold mortgage may be sold, assigned,
collateralized or securitized; and (vii) such leasehold mortgage may not be
recorded until all improvements, the cost which are funded by the proceeds of
such loan, have been fully completed and the Ground Lessee shall have taken
possession and commenced operation of such improvements pursuant to the Ground
Lease;
(h) Except for this Mortgage, the Ground Lease and the Assignment of
Leases and Rents, the Borrower shall not permit the Mortgaged Property,
including but not limited to the Ground Lease or the rents payable thereunder,
to be subject to any liens, charges, encumbrances or other security interests,
without the prior written consent of the Bank; provided, however, that the
foregoing restrictions shall not apply to (i) liens for taxes, assessments or
other governmental charges or levies if the same shall not at the time be
delinquent; (ii) liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions, or social security
or retirement benefits or similar legislation; (iii) liens of contractors,
mechanics, materialmen, carriers, landlords and other similar common law or
statutory liens arising in the ordinary course of business;(iv) a mortgage to
finance Ground Lessee's construction of improvements as described in Paragraph
5.22(g); and (v) sublease financing consented to by the Lender;
(i) The Borrower shall not agree or consent to any sublease of the
Ground Lease, or to any amendment, modification, renewal or any other change in
any sublease or the rent thereunder, either orally or in writing, and whether or
not permitted to do so by the terms of the Ground Lease, without the prior
written consent of the Lender. The Lender will not unreasonably withhold its
consent to subleases of the Mortgaged Property at fair market rents which meet
the criteria for subleases set forth in the Ground Lease, and, if such consent
is given, will grant sublessees recognition and non-disturbance and permit
sublessee leasehold financing and recording of a mortgage securing such
subleasehold financing; provided, however, that the Ground Lessee shall have
furnished the Lender with (i) reasonably detailed information regarding the
proposed sublessee, (ii) a term sheet which details the principal terms for the
proposed sublease, (iii) financial statements for the proposed sublessee, (iv)
the location of any sublease improvements on the Property to the extent the same
differs from the proposed sublessee location plan attached to the Loan Agreement
as Exhibit H (the "Location Plan"), and (v) the form of the proposed sublease,
and provided, further, that if the subleases meet the requirements in this
Paragraph 5.22(i) subparagraphs (i) through (v), then the only grounds for
withholding consent by the Lender to any such sublease shall
40
be a lack of long-term financial viability of the proposed sublessee or a
proposed use of the Mortgaged Property by the sublessee which is environmentally
sensitive. The Lender's prior written consent shall also be required as to the
location of any improvements on the Mortgaged Property by a sublessee to the
extent the same differs from the Location Plan and the Lender shall not be
required to consent to more than the number of subleases of the Mortgaged
Property shown on the Location Plan in effect at any one time. This provision is
a material inducement for the Lender extending the Loan to the Borrower;
(j) The Borrower shall not agree or consent to any cancellation,
termination or surrender by Ground Lessee of the Ground Lease, without the
Lender's prior written consent, which consent may be withheld in Lender's sole
and absolute discretion; and
(k) The Ground Lease and the Guaranty shall provide that the Ground
Lessee and the Guarantor shall be liable to Borrower and Lender for all costs,
fees and expenses of, and court costs incurred by, any attorney employed by
Lender in any litigation affecting the Note, this Mortgage or any of the other
Loan Documents, or any of the Mortgaged Property, or the Ground Lease or the
Guaranty, or in preparation for the commencement or defense of any proceeding or
threatened suit or proceeding in connection therewith, or any defense by Lender
of any actions or claims attacking any liens granted to Lender under this
Mortgage or any of the other Loan Documents (without regard to whether Lender is
the prevailing party), and arising or resulting from any claim or defense
asserted by Ground Lessee and/or Guarantor.
5.23 NO CHANGE ETC. Neither this Mortgage nor any provision hereof
may be changed, waived, discharged or terminated, except by an instrument in
writing, signed by Lender and Borrower.
5.24 MODIFICATIONS; PRIORITY. Borrower and Lender may agree to
change the interest rate, Maturity Date, or other term or terms of this
Mortgage, or any of the documents referred to therein, or of the indebtedness
secured hereby. Any such agreement shall be in writing and duly executed by both
Borrower and Lender. In the event that any such agreement shall occur, it shall,
to the extent permitted by law, be deemed a "modification" as defined in
N.J.S.A. 46:9-8.1 ET SEQ., and this Mortgage shall be subject to, and Lender
shall be the beneficiary of, the mortgage lien priority provisions of N.J.S.A.
46:9-8.2. Further, all advances made under the Loan Documents, whether or not
entitled to priority under N.J.S.A. 46:9-8.2, shall be deemed to be obligatory
advances when made, shall be secured hereby, and shall, to the maximum extent
possible under the law, relate back as to lien priority to the date when this
Mortgage was left for recording with the Bergen County Recorder of Deeds. By
placing or accepting any lien or encumbrance against any or all of the Premises,
the holder thereof shall be deemed to have agreed to the maximum extent possible
under the law that its lien or encumbrance shall be subject and subordinate in
lien priority to this Mortgage and to any subsequent advances made under the
Loan Documents, to all accrued and unpaid interest and to all other sums secured
hereby.
5.25 NO RELEASE. No extension or indulgence granted to Borrower, and
no alteration, change or modification of the Loan Documents consented or agreed
to by Lender and no other act or omission of Lender, including the taking of
additional security or the release of any security shall constitute a release of
the lien and obligation of the Mortgage or be interposed
41
as a defense against the enforcement of this Mortgage, except an act of Lender
which constitutes an express, effective release and satisfaction of the Note,
and all other obligations secured hereby.
5.26 FURTHER ASSURANCES. If at any time Lender shall reasonably deem
that any further instruments, documents, acts or things are necessary or
desirable to vest or confirm any right or remedy herein granted, Borrower shall
execute, acknowledge when appropriate and deliver any instrument or document and
do or cause to be done any act or thing deemed necessary or desirable by Lender
for any such purposes.
5.27 SPECIAL NOTICES. Notwithstanding any other notice requirements
set forth herein, Borrower shall give Lender prompt written notice of the
occurrence of any of the following:
(i) receipt from any governmental authority of any notice of
a material violation relating to the construction, use
or occupancy of the Premises or any part thereof;
(ii) commencement of any litigation or proceeding materially
affecting the Premises or title thereto or any part
thereof; and
(iii) receipt of any notice of the imposition of, or of
threatened or actual execution on, any lien on, or
security interest in, the Premises.
5.28 NO THIRD PARTY BENEFICIARY. This Mortgage is made solely for
the benefit of Lender and its successors and its assigns. No purchaser of the
Premises or any tenant under any lease thereof, nor any other person, shall have
standing to bring any action against Lender as a result of this Mortgage, or to
assume that Lender will exercise any remedies provided therein, and no person
other than Lender shall under any circumstances be deemed to be a beneficiary of
any provision of this Mortgage.
5.29 INCONSISTENT PROVISIONS. In the event of any inconsistency
between the terms of the Note, this Mortgage or any of the other Loan Documents,
the terms of the document selected by Lender shall prevail.
5.30 NOTICE OF CHANGE IN NAME. Borrower shall give advance notice in
writing to Lender of any proposed change in Borrower's name or identity and
shall execute and deliver to Lender, prior to or concurrently with the
occurrence of any such change, all additional financing statements that Lender
may require to establish and maintain the validity and priority of Lender's
security interest with respect to any of the Mortgaged Property described or
referred to herein.
5.31 ACCEPTANCE OF PERFORMANCE. If Borrower causes any of Borrower's
obligations in this Mortgage to be performed by Ground Lessee pursuant to the
Ground Lease provisions, Lender agrees to accept such performance as if such
obligation had been performed by
42
Borrower, provided, however, Ground Lessee's failure to perform any such
obligation shall not excuse the performance by Borrower of all of Borrower's
obligations hereunder. However, if any such obligations are to be in the first
instance performed by Borrower and a Default has occurred, Lender need not
accept any such performance by Ground Lessee.
BORROWER ACKNOWLEDGES THAT IT HAS RECEIVED, FREE OF CHARGE, A TRUE
AND CORRECT COPY OF THIS MORTGAGE.
[The rest of this page left intentionally blank.]
43
5.31 JURY WAIVER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH OF
BORROWER AND LENDER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
ACTION, CAUSE OF ACTION, CLAIM, DEMAND OR PROCEEDING ARISING UNDER OR WITH
RESPECT TO THIS MORTGAGE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL
TO THE DEALINGS OF BORROWER AND LENDER WITH RESPECT TO THIS MORTGAGE, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, EACH OF BORROWER AND LENDER HEREBY AGREES THAT ANY SUCH
ACTION, CAUSE OF ACTION, CLAIM, DEMAND OR PROCEEDING SHALL BE DECIDED BY A COURT
TRIAL WITHOUT A JURY AND THAT BORROWER OR LENDER MAY FILE A COPY OF THIS
MORTGAGE WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF
EACH OF BORROWER AND LENDER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
BORROWER AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST LENDER ON THE THEORY
OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES.
IN WITNESS WHEREOF, Borrower has executed this Mortgage as of the
date and year first above written.
Witness: ALX OF PARAMUS LLC
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
As to ▇▇▇▇▇▇ ▇▇▇▇▇▇ of Finance and Administration
/S/ ▇▇▇▇▇ ▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant Secretary
As to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
44
STATE OF ____________ )
) SS.
COUNTY OF ___________ )
I CERTIFY that on _______________, 2001, ▇▇▇▇▇▇ ▇▇▇▇▇▇, personally
appeared before me and this person acknowledged under oath, to my satisfaction,
that this person:
(a) signed the attached instrument as duly authorized executive Vice
President of Finance and Administration of ALX of Paramus, LLC, a limited
liability company of the State of Delaware, named in this instrument, and
(b) is authorized to execute the attached instrument on behalf of
such limited liability company; and
(c) executed the attached instrument as the act of such limited
liability company.
---------------------------------
Notary Public
STATE OF ____________ )
) SS.
COUNTY OF ___________ )
I CERTIFY that on _______________, 2001, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, personally
appeared before me and this person acknowledged under oath, to my satisfaction,
that this person:
(a) signed the attached instrument as the duly authorized Assistant
Secretary of ALX of Paramus, LLC, a limited liability company of the State of
Delaware, named in this instrument, and
(b) is authorized to execute the attached instrument on behalf of
such limited liability company; and
(c) executed the attached instrument as the act of such limited
liability company.
---------------------------------
Notary Public
EXHIBIT A
LEGAL DESCRIPTION
PARCEL I:
BEING ALL that tract or parcel of land and premises, situated, lying and being
in the Borough of Paramus, County of Bergen State of New Jersey and being more
particularly described as follows:
Beginning at the point of intersection of the Northerly line of New Jersey State
Highway Route 4 (being 65.00 feet measured at right angles from the center line)
with the Easterly line of the Garden State Parkway all as shown on a certain map
entitled "Major Subdivision for Paramus/Alexander's/▇▇▇▇/▇▇▇▇▇-▇▇▇▇▇▇▇▇,
N.J.S.H. Route 4 West and J.J.S.H. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇", prepared by ▇▇▇▇▇▇▇ Associates, Inc., dated 12-24-87 and bearing
1-16-89 as its latest revision date, filed in the Bergen County Clerk's Office
on 10-4-89 as Map No. 8695 and running; thence,
1) Along the Easterly line of the Garden State Parkway, North 60
Degrees and 27 minutes and 15 seconds East, 428.16 feet to a point;
thence,
2) Along the same, North 59 degrees and 19 minutes and 52 seconds East,
199.97 feet to a point; thence,
3) Along the same, North 57 degrees and 31 minutes and 44 seconds East,
195.58 feet to a point; thence,
4) Along the same, North 53 degrees and 35 minutes and 28 seconds East,
198.81 feet to a point; thence,
5) Along the same, North 49 degrees and 42 minutes and 46 seconds East,
197.95 feet to a point; thence,
6) Along the same, North 46 degrees and 32 minutes and 53 seconds East,
287.90 feet to a point; thence,
7) Along the same, North 41 degrees and 09 minutes and 46 seconds East,
232.45 feet to a point; thence,
8) Continuing along the Easterly line of the Garden State Parkway,
North 37 degrees and 42 minutes and 15 seconds East, 88.66 feet to a
point; thence,
9) Along the Southerly line of Lot 1 in Block 1201 as shown on the
referenced subdivision, South 51 degrees and 53 minutes and 42
seconds East, 205.30 feet to a point; thence,
10) Along the Easterly line of ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 38 degrees and
06 minutes and 18
seconds East, 85.00 feet to a point; thence,
11) Along the Southerly line of Lot 2 in Block 1201 as shown on the
referenced subdivision, South 51 degrees and 53 minutes and 42
seconds East, 400.00 feet to a point; thence
12) Along the Easterly line of ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 38 degrees and
06 minutes and 18 seconds East, 15.00 feet to a point; thence,
13) Along the Southerly line of Lot 12 in Block 1201 as shown on the
referenced subdivision, South 51 degrees and 53 minutes and 42
seconds East, 140.72 feet to a point; thence
14) Along the Westerly line of N.J.S.H Route 17 (120.00 feet wide),
South 07 degrees and 53 minutes and 26 seconds West, 385.88 feet to
a point; thence,
15) Along the Easterly line of Lot 7 in Block 1202 as shown on the
referenced subdivision, North 02 degrees and 31 minutes and 19
seconds West, 42.63 feet to a point on a curve; thence,
16) Westerly, along the Northerly line of Lot 7 in Block 1202 on a curve
to the right having a radius of 25.00 feet, central angle of 73
degrees and 42 minutes and 40 seconds (chord bearing North 89
degrees and 01 minutes and 40 seconds West), an arc distance of
32.16 feet to a point of tangency; thence,
17) Along the same, North 52 degrees and 10 minutes and 20 seconds West,
97.92 feet to a point; thence,
18) Along a Westerly line of ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 39 degrees and
35 minutes and 56 seconds West, 111.89 feet to a point; thence,
19) Along the same, South 37 degrees and 39 minutes and 55 seconds West,
93.00 feet to a point; thence,
20) Along a Southerly line of ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 52 degrees and
20 minutes and 05 seconds East, 100.00 feet to a point; thence,
21) Along a Westerly line of ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 37 degrees and
39 minutes and 55 seconds West, 25.00 feet to a point; thence,
22) Along a Southerly line of ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 52 degrees and
20 minutes and 05 seconds West, 176.20 feet to a point; thence,
23) Along the Westerly line of N.J.S.H. Route 17, South 07 degrees and
53 minutes and 26 seconds West, 1.49 feet to a point; thence,
24) Along the same, South 07 degrees and 37 minutes and 51 seconds West,
44.71 feet to a point; thence,
25) Along the Northerly line of existing Lot 2 in Block 1203 being
lands, now or formerly, of the
New Jersey Department of Transportation, North 52 degrees and 20
minutes and 05 seconds West, 9.32 feet to a point; thence,
26) Along the Westerly line of existing lot 2 in Block 1203, South 37
degrees and 39 minutes and 55 seconds West, 100.00 feet to a point;
thence,
27) Along the Southerly line of the same and existing Lot 3 in Block
1203 being lands, now or formerly, of ▇▇▇▇▇▇▇ Associates, South 52
degrees and 20 minutes and 05 seconds East, 67.13 feet to a point;
thence,
28) Along the Westerly line of N.J.S.H. Route 17, South 07 degrees and
37 minutes and 51 seconds West, 4.46 feet to a point of curvature;
thence,
29) Southwesterly, along the Westerly line of the ramp from N.J.S.H.
Route 17 (Southbound) to N.J.S.H. Route 4 (Westbound) on a curve to
the right having a radius of 290.00 feet, an arc distance of 254.39
feet to a point of tangency; thence,
30) Along the same, South 57 degrees and 53 minutes and 26 seconds West,
281.78 feet to a point; thence,
31) Along the same, South 70 degrees and 18 minutes and 16 seconds West,
111.35 feet to a point; thence,
32) Along the same, North 87 degrees and 45 minutes and 06 seconds West,
81.43 feet to a point; thence,
Along the Northerly line of N.J.S.H. Route 4, North 72 degrees and 06 minutes
and 34 seconds West, 1,490.31 feet to the point or place of beginning.
Subject to easements and restrictions of record.
Being Lot 1 in Block 1202 as appearing on the referenced Subdivision Map No.
8695 containing 1,712,916 square feet or 39.3231 acres more or less.
Excepting therefrom lands acquired by the State of New Jersey by the
Commissioner of Transportation pursuant to Declaration of Taking for Road
Widening, recorded November 25, 1997, in Book 8023, Page 304, as instrument
#144855.
Including specifically that part of ▇▇▇ ▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ to Deed Book
8042, Page 097, (Exchange Deed, between The State of New Jersey, Department of
Transportation and Alexander's Department Stores of New Jersey, Inc.), recorded
February 6, 1998, as instrument #018103.
PARCEL II:
----------
BEING ALL that tract or parcel of land and premises, situated, lying and being
in the Borough of
Paramus, County of Bergen State of New Jersey and being more particularly
described as follows:
Beginning at the intersection of the Westerly right of way line of the Garden
State Parkway and the new Southerly line of Tax Map ▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ having a New Jersey State Plane Grid Coordinate of North 763,178.759
and East 2,163,678.175, all as laid down on a certain map entitled "Location
Survey, ▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇", dated 10-26-93
and bearing 2-8-94 as its latest revision date, prepared by ▇▇▇▇▇▇▇ Associates,
Inc., Paramus, New Jersey. Said point also being measured Southwesterly along
the Westerly right of way line of the Garden State Parkway from its intersection
with the Southerly R.O.W. Line of Century Road, all as laid down on a certain
map entitled "Garden State Parkway, Section 1, Survey of Westerly right of way
line, South of Century Road, Paramus, N.J.", dated November 23, 1966, Sheet No.
32 of 33, prepared by ▇▇▇▇▇▇▇ Engineering Company, Ridgefield Park, New Jersey,
along the following bearings and distances:
A) South 10 degrees and 11 minutes and 03 seconds West, along the
Westerly right of way line of the Garden State Parkway as described
above, for a distance of 136.71 feet to a bend in the same; thence,
B) South 05 degrees and 33 minutes and 26 seconds West, along the same,
for a distance of 185.87 feet to a bend in the same; thence,
C) South 09 degrees and 55 minutes and 07 seconds West, along the same,
for a distance of 185.78 feet to a bend in the same; thence,
D) South 14 degrees and 54 minutes and 37 seconds West, along the same,
for a distance of 174.89 feet to a bend in the same; thence,
E) South 20 degrees and 48 minutes and 46 seconds West, along the same,
for a distance of 182.94 feet to a bend in the same; thence,
F) South 25 degrees and 46 minutes and 10 seconds West, along the same,
for a distance of 161.01 feet to a bend in the same; thence,
G) South 28 degrees and 52 minutes and 02 seconds West, along the same,
for a distance of 82.49 feet to the new Southerly line of Tax Map
▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, being the point and place of beginning
and running from the beginning point hereindescribed; thence,
1) South 28 degrees and 52 minutes and 02 seconds West,
along the Westerly right of way line of the Garden State
Parkway as described above, for a distance of 95.64 feet
to a bend in the same; thence,
2) South 34 degrees and 53 minutes and 01 seconds West,
along the same, for a distance of 173.10 feet to a bend
in the same; thence,
3) South 37 degrees and 55 minutes and 47 seconds West,
along the same, for a distance of 183.83 feet to a bend
in the same; thence,
45
4) South 41 degrees and 07 minutes and 31 seconds West,
along the same, for a distance of 177.89 feet to a bend
in the same; thence,
5) South 43 degrees and 34 minutes and 47 seconds West,
along the same, for a distance of 171.17 feet to a bend
in the same; thence,
6) South 47 degrees and 27 minutes and 33 seconds West,
along the same, for a distance of 30.73 feet to its
intersection with the Northerly right of way line of
Summit Avenue extended, as laid down on a certain map
entitled "Map Showing ▇.▇. ▇▇▇▇ - Summit Avenue
Subdivision, West Hackensack, Midland Township, Bergen
County, New Jersey", filed in the Bergen County Clerk's
Office on June 16, 1997 as Map No. 773; thence,
7) North 52 degrees and 20 minutes and 05 seconds West,
along the Northerly right of way line of Summit Avenue
extended, for a distance of 20.00 feet more or less to
the centerline of Sprout Brook as it previously existed;
thence,
8) Northerly, along the various courses of the "centerline
of Sprout Brook as located in the field" as it formerly
existed and laid down on a certain map entitled "New
Jersey Highway Authority, Garden State Parkway, Section
I, General Property Map", Sheets No. 29 and 30 of 33,
prepared by ▇▇▇, ▇▇▇▇▇▇▇▇ & Thorndike, Consulting
Engineers, Boston, Massachusetts and Clifton, New
Jersey, for a distance of approximately 960 feet to its
intersection with the aforementioned new Southerly line
of Tax Map ▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇; thence,
9) South 52 degrees and 36 minutes and 40 seconds East,
along the new Southerly line of Tax Map ▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, for a distance of approximately 370 feet to
the point and place of beginning.
TOGETHER with all right, title and interest in and to that certain limited
Easement for Right of way as set forth in Deed Book ▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.