UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
April 3, 2013
Date of Report (Date of earliest event reported)
GTJ REIT, INC.
(Exact name of registrant as specified in its Charter)
Maryland |
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0001368757 |
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20-5188065 |
(State or other jurisdiction
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(Commission File Number) |
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(IRS Employer
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444 Merrick Road
Lynbrook, NY 11563
(Address of principal executive offices) (Zip Code)
(516) 881-3535
Registrants telephone number, including area code
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On April 3, 2013, four indirect subsidiaries of GTJ REIT, Inc. (the Company), Wu/LH 103 Fairview Park LLC (Fairview), Wu/LH 404 Fieldcrest LLC (Fieldcrest), Wu/LH 300 American LLC (300 American) and Wu/LH 500 American LLC (500 American, and together with Fairview, Fieldcrest and 300 American, hereinafter collectively referred to as the Borrowers) entered into certain mortgage and security agreements (the Loan Agreements) with Genworth Life Insurance Company (the Lender), pursuant to which the Lender made term loans to the Borrowers in the aggregate principal amount of $29.5 million (the Loans). Each of the Borrowers is a wholly-owned subsidiary of GTJ Realty, L.P. (the UPREIT). The Loans bear interest at a rate of 3.20% and mature on April 30, 2018. The Loans were evidenced by (i) a promissory note, executed simultaneously therewith, by Fairview and Fieldcrest payable to the order of Genworth Life Insurance Company in the amount of $14,400,000 (the New York Note) and (ii) a promissory note, executed simultaneously therewith, by 300 American and 500 American in the amount of $15,100,000 (the New Jersey Note and together with the New York Note, hereinafter referred to as the Notes).
Pursuant to the New York Note, Fairview and Fieldcrest will make monthly payments of interest only in the amount of $38,400.00 from June 1, 2013 to and including May 1, 2014. On June 1, 2014, Fairview and Fieldcrest will make monthly payments of principal and interest in the amount of $69,793.77 until such New York Note becomes due and payable, if not sooner paid.
Pursuant to the New Jersey Note, 500 American and 300 American will make monthly payments of interest only in the amount of $40,266.67 from June 1, 2013 to and including May 1, 2014. On June 1, 2014, 500 American and 300 American will make monthly payments of principal and interest in the amount of $73,186.53 until such New Jersey Note becomes due and payable, if not sooner paid.
The obligations represented by the New York Note are secured by, among other things, a first priority mortgage lien and security interest on certain (a) improved real estate located at 103 Fairfield Park Drive, Elmsford, New York and 404 Fieldcrest Drive, Elmsford, New York (collectively, the New York Properties) and (b) other property and rights of the Borrowers, all as more specifically described in the Loan Agreements and other ancillary documents.
The obligations represented by the New Jersey Note are secured by, among other things, a first priority mortgage lien and security interest on certain (a) improved real estate located at 300 American Road, Morris Plains, New Jersey and 500 American Road, Morris Plains, New Jersey, respectively (collectively, the New Jersey Properties and together with the New York Properties, hereinafter referred to as the Properties), and (b) other property and rights of the Borrowers, all as more specifically described in the Loan Agreements and other ancillary documents.
The proceeds from the Loans were used to satisfy in full the Borrowers obligations to John Hancock Life Insurance Company under a prior mortgage and security agreement relating to the Properties.
The Loan Agreements contain customary representations and warranties, covenants and events of default.
Certain obligations under the Loan Agreements are guaranteed by the UPREIT, pursuant to the terms of certain Guaranties entered into by the UPREIT and Lender.
As a condition to Lender entering into the Loan Agreements, the Borrowers and the UPREIT agreed to indemnify the Lender against certain claims and guaranty certain obligations of Borrower pursuant to certain Environmental Indemnity Agreements (the Environmental Indemnities).
The summary of the Loan Agreements and the related transaction described above are qualified in their entirety by reference to the Exhibits attached hereto.
Item 2.03 Creation Of A Direct Financial Obligation Or An Obligation Under An Off-Balance Sheet Arrangement Of A Registrant
The information set forth in Item 1.01 of this report on Form 8-K is hereby incorporated by reference into this Item 2.03 in its entirety.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits .
10.1 Amended and Restated Mortgage, Assignment of Rents and Leases, and Security Agreement dated April 3, 2013, by and between Wu/LH 103 Fairview Park LLC, and Wu/LH 404 Fieldcrest LLC and Genworth Life Insurance Company.
10.2 Amended and Restated Promissory Note dated April 3, 2013, payable to the order of Genworth Life Insurance Company in the stated principal amount of $14,400,000.
10.3 Unconditional Guaranty dated April 3, 2013, by GTJ Realty, L.P. to and for the benefit of Genworth Life Insurance Company.
10.4 Environmental Indemnity dated April 3, 2013, by and between Wu/LH 103 Fairview Park LLC, Wu/LH 404 Fieldcrest LLC, GTJ Realty L.P. and Genworth Life Insurance Company.
10.5 Mortgage, Assignment of Rents and Leases, and Security Agreement dated April 3, 2013, by and between Wu/LH 300 American LLC and Wu/LH 500 American LLC and Genworth Life Insurance Company.
10.6 Promissory Note dated April 3, 2013, payable to the order of Genworth Life Insurance Company in the stated principal amount of $15,100,000.
10.7 Unconditional Guaranty dated April 3, 2013, by GTJ Realty, L.P. to and for the benefit of Genworth Life Insurance Company.
10.8 Environmental Indemnity dated April 3, 2013, by and between Wu/LH 300 American LLC, Wu/LH 500 American LLC, GTJ Realty L.P. and Genworth Life Insurance Company.
Exhibit 10.1
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Recording Requested By and When Recorded Mail To: Genworth Life Insurance Company c/o Bank of America RESF -Servicing 900 West Trade Street, Suite 650 NCl-026-06-01 Charlotte, North Carolina 28255 Loan No. 901000543 AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, AND SECURITY AGREEMENT (ALSO CONSTITUTING A FIXTURE FILING) THIS AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, AND SECURITY AGREEMENT (this Mortgage) is made this, 3rd day of April, 2013, between WU/LH 103 FAIRVIEW PARK L.L.C., a Delaware limited liability company, and WU/LH 404 FIELDCREST L.L.C., a Delaware limited liability company, as Mortgagor (collectively, Borrower), whose address is 60 Hempstead Avenue, Suite 718, West Hempstead, New York 11552; and GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation, as Mortgagee (Lender), whose address is c/o Bank of America, RESF- Servicing, 900 West Trade Street, Suite 650, NCl-026-06-01, Charlotte, North Carolina 28255. For purposes of Article 9 of the Uniform Commercial Code, this Mortgage constitutes a security agreement and financing statement with Borrower being the Debtor and Lender being the Secured Party. This Mortgage also constitutes a financing statement filed as a fixture filing pursuant to Article 9 of the Uniform Commercial Code. A. Borrower is the owner of the fee estate of the premises described in Exhibit A attached hereto and made a part hereof (the Realty). B. Lender is the holder of that certain mortgage described on Exhibit B attached hereto and made a part hereof (Original Mortgage), which Original Mortgage was assigned to Lender by an Assignment of Mortgage dated of even date herewith. C. Borrower confirms that (a) the full principal amount has been advanced under the note secured by the Origina1 Mortgage, (b) the principal amount outstanding under the note secured by the Original Mortgage as of the date hereof is FOURTEEN MILLION FOUR HUNDRED THOUSAND DOLLARS ($14,400,000.00), and (c) there are no offsets, advances, setoffs, defenses or counterclaims against payment of said amount. D. Lender and Borrower have agreed to modify and restate the terms and provisions of the Original Mortgage and in connection therewith, to amend and restate the Original Mortgage upon the terms and conditions set forth herein. The Original Mortgage, as amended and restated hereby, and as the same may be amended, modified or extended from time to time, is herein referred to as this Mortgage. E. The loan evidenced by the note secured by the Original Mortgage, in the outstanding principal amount of FOURTEEN MILLION FOUR HUNDRED THOUSAND DOLLARS ($14,400,000.00), is hereafter referred to as the Loan and is to be secured, in part, by Borrowers interest in the Realty. The Loan, if not sooner paid, is due and payable in full on April30, 2018. In consideration of the foregoing, the terms of the Original Mortgage are hereby amended and restated in their entirety, and Borrower hereby irrevocably MORTGAGES to Lender, WITH POWER OF SALE, all of Borrowers estate, rights, title, claim, interest and demand, either in law or in equity, of, in and to the following property, whether the same be now owned or hereafter acquired (the Property): |
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(a) The Realty and all rights to the land lying in alleys, streets and roads adjoining or abutting the Realty; (b) All buildings, improvements and tenements now or hereafter located on the Realty; (c) All fixtures and articles of property now or hereafter attached to, or used or adapted for use in the ownership, development, operation or maintenance of, the buildings, improvements and Realty (whether such items are leased, owned or subject to any title retaining or security instrument, or otherwise used or possessed), including without limitation all heating, cooling, air-conditioning, ventilating, refrigerating, plumbing, generating, power, lighting, laundry, maintenance, incinerating, lifting, cleaning, fire prevention and extinguishing, security and access control, cooking, gas, electric and communication fixtures, equipment and apparatus, all engines, motors, conduits, pipes, pumps, tanks, ducts, compressors, boilers, water heaters and furnaces, all ranges, stoves, disposers, refrigerators and other appliances, all escalators and elevators, all baths and sinks, all cabinets, partitions, mantels, built-in mirrors, window shades, blinds, screens, awnings, storm doors, windows and sash, all carpeting, underpadding, floor covering, panelling and draperies, all furnishings of public spaces, halls and lobbies, and all shrubbery and plants; all of which items shall be deemed part of the real property and not severable wholly or in part without material injury to the freehold; provided, however, that personal property and trade fixtures owned or supplied by tenants of the Property with the right of removal at the termination of their tenancies shall not be included within the scope of this paragraph; (d) All easements, access, air and development rights, minerals and oil, gas and other hydrocarbon substances, royalties, water, water rights and water stock, and all other rights, hereditaments, privileges, permits, licenses, franchises and appurtenances now or hereafter belonging or in any way appertaining to the Realty; (e) All of the rents, revenues, issues, profits and income of the Property, and all present and future leases and other agreements for the occupancy or use of all or any part of the Realty, including without limitation all cash or security deposits, advance rentals and deposits or payments of similar nature, and all guaranties of tenants or occupants performances under such leases and agreements; SUBJECT, HOWEVER, to the assignment of rents and other property to Lender herein contained; (f) All general intangibles relating to the development or use of the Property, including without limitation all permits, licenses and franchises, all names under or by which the Property may at any time be operated or known, and all rights to carry on business under any such names or any variant thereof, and all trademarks, trade names, logos and good will in any way relating to the Property; (g) All water stock relating to the Property, all shares of stock or other evidence of ownership of any part of the Property that is owned by Borrower in common with others, and all documents of membership in any owners or members association or similar group having responsibility for managing or operating any part of the Property; and (h) All products and proceeds of all of the foregoing; TO SECURE THE FOLLOWING (collectively the Secured Obligations): (1) Payment of the sum of FOURTEEN MILLION FOUR HUNDRED THOUSAND DOLLARS ($14,400,000.00), with interest thereon, according to the terms and provisions of a promissory note of even date herewith, payable to Lender, or order, and made by Borrower, and all modifications, extensions, renewals and replacements thereof(collectively the Note); (2) Payment of all sums advanced to protect the security of this Mortgage, together with interest thereon as herein provided; (3) Payment of all other sums which are or which may become owing under the Loan Documents; -2- |
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(4) Performance of all of Borrowers other obligations under the Loan Documents; and (5) Payment of the principal and interest on all other future loans or advances made by Lender to Borrower when the promissory note evidencing the loan or advance specifically states that it is secured by this Mortgage, including all modifications, extensions, renewals, and replacements of any such future loan or advance. As used herein, the term Loan Documents means the Note, this Mortgage, any loan agreement and Uniform Commercial Code Financing Statement executed in connection herewith, and any other instrument or document evidencing or securing the Loan or otherwise executed in connection therewith (except the Environmental Indemnity), together with all modifications, extensions, renewals and replacements thereof. BORROWER HEREBY REPRESENTS, WARRANTS, COVENANTS AND AGREES AS FOLLOWS: ARTICLE I TITLE AND USE 1.1 Warranty of Title. Borrower represents and warrants to Lender that: (a) Except as may otherwise be expressly stated in this Mortgage, Borrower has good and marketable title in fee simple to such of the Property as is real property and is the sole and absolute owner of all other Property; (b) the Property is free from liens, encumbrances, exceptions or other charges of any kind whatsoever other than non-delinquent installments of property taxes and assessments, general and special, those items, if any, listed as exceptions on the title insurance policy issued to and approved by Lender in connection with the Loan, and any other liens, encumbrances, exceptions or charges expressly permitted by the terms of this Mortgage (collectively, Permitted Exceptions), and no others, whether superior or inferior to this Mortgage, will be created or suffered to be created by Borrower during the life of this Mortgage without the prior written consent of Lender; (c) no default on the part of Borrower or, to Borrowers actual knowledge, any other person exists under any of the Permitted Exceptions and all Permitted Exceptions are in full force and effect and in good standing, without modification except as disclosed on Exhibit A attached; (d) none of the Permitted Exceptions will be modified by Borrower without Lenders prior written consent; (e) Borrower will fully comply with all the terms of the Permitted Exceptions; and (f) that Borrower has the right to grant, transfer, convey and assign the Property as herein provided and will forever warrant and defend the Property unto Lender against all claims and demands of any other person whomsoever, subject only to non-delinquent installments of taxes:(i and assessments and the Permitted Exceptions. 1.2 Hazardous Substances. (a) Representations and Warranties. Borrower represents and warrants to Lender that except as set forth in the environmental reports obtained or delivered to Lender in connection with the Loan: (i) To the Borrowers actual knowledge, no asbestos has ever been used in the construction, repair or maintenance of any building, structure or other improvement now or heretofore located on the Property; (ii) no Hazardous Substance is currently being generated, manufactured, refined, transported, treated, stored, handled or disposed of, transferred, produced or processed on, under or about the Property, except in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws; (iii) neither Borrower nor, to Borrowers actual knowledge, any other person or entity has ever caused or permitted any Hazardous Substance to be generated, manufactured, refined, transported, treated, stored, handled or disposed of, transferred, produced or processed on, under or about the Property, except in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws; (iv) Borrower has not received any notice of, nor is Borrower aware of, any actual or alleged violation with respect to the Property of any federal, state or local statute, ordinance, rule, regulation or other law pertaining to Hazardous Substances; and (v) neither Borrower nor the Property is subject to any governmental or judicial claim, order, judgment or lien with respect to the clean-up of Hazardous Substances at or with respect to the Property. Borrower further represents and warrants to Lender that the foregoing representations and warranties contained in this paragraph 1.2(a) are made after and are based upon inspection of the Property by Borrower and due inquiry by Borrower as to the prior uses of the Property. -3- |
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(b) Definition. As used herein, the term Hazardous Substance means any hazardous, toxic or dangerous substance, waste or material which is or becomes regulated under any federal, state or local statute, ordinance, rule, regulation or other law now or hereafter in effect pertaining to environmental protection, contamination or clean up, including without limitation any substance, waste or material which now or hereafter is (A) designated as a hazardous substance under or pursuant to the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), (B) defined as a hazardous waste under or pursuant to the Resource Conservation and Recovery Act (42 U.S.C. §6901 ,et seq.), (C) defined as a hazardous substance in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq.), or (D) defined or listed as industrial-commercial waste or waste under N.Y. ENVTL. CONSERV. §27-303, solid waste under N.Y. ENVTL. CONSERV. §27-501 and §27-0701, hazardous waste and waste under N.Y. ENVTL. CONSERV. §27-0900, industrial hazardous waste under N.Y. ENVTL. CONSERV. §27-1101, and hazardous waste or waste under N.Y. ENVTL. CONSERV. §27-1301. 1.3 Location of Borrower. Borrower represents and warrants to Lender that each Borrower is a limited liability company organized under the laws of the State of Delaware, qualified to transact business in the State of New York, and each Borrowers exact legal name is as set forth in the first paragraph on page 1 of this Mortgage. Borrower covenants that it will give Lender thirty (30) days prior written notice of any act, event or occurrence which will cause the representations and/or warranties in this paragraph to become untrue in any respect. ARTICLE II BORROWERS COVENANTS 2.1 Payment and Performance of Secured Obligations. Borrower will pay when due all sums which are now or which may become owing on the Note, and will pay and perform all other Secured Obligations, in accordance with their terms. 2.2 Payment of Taxes. Utilities. Liens and Charges. (a) Taxes and Assessments. Except as the same may otherwise be paid under Article III, Borrower will pay prior to delinquency directly to the payee thereof all taxes and assessments (including without limitation non-governmental levies or assessments such as maintenance charges, owner association dues or charges, or fees, levies or charges resulting from covenants, conditions or restrictions) levied, assessed or charged against or with respect to the Property or this Mortgage. Upon request, Borrower shall promptly furnish to Lender all notices of amounts due under this subparagraph and all receipts evidencing such payments. However, Borrower may contest any such taxes or assessments by appropriate proceedings duly Instituted and diligently prosecuted at Borrowers expense. Borrower shall not be obligated to pay such taxes or assessments while such contest is pending if the Property is not thereby subjected to imminent loss or forfeiture and, if Borrower has not provided evidence that it has deposited the entire amount assessed with the applicable governmental authority, it deposits the entire arnount together with projected penalties and interest with Lender or provides other security satisfactory to Lender in its sole discretion. (b) Utilities. Borrower will pay when due all utility charges and assessments for services furnished the Property. (c) Liens and Charges. Borrower will pay when due the claims of all persons supplying labor or materials to or in connection with the Property. without waiving the restrictions of paragraph 4.1, Borrower will promptly discharge any lien or other charge, whether superior or inferior to this Mortgage, which may be claimed against the Property. 2.3 Insurance. (a) Coverages Required. Borrower will keep the following insurance coverages in effect with respect to the Property: -4- |
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(i) Insurance against loss by fire, vandalism, malicious mischief and such other hazards as may now or hereafter be embraced by the standard all risk or special form policy of insurance, in an amount equal at all times to the lesser of one hundred percent (100%) of the current replacement value of the improvements then located on the Property or the amount of the Loan. All such insurance coverage shall contain a replacement cost endorsement, without deduction for depreciation. (ii) Flood risk insurance in the maximum amount of insurance coverage available or the full replacement cost of the buildings on the Realty, whichever is less, if the Realty is now or hereafter designated as being located within a special flood hazard area under the Flood Disaster Protection Act of 1973 and if flood insurance is available. (iii) Loss of rental value insurance and/or business interruption insurance, as follows: If all or any portion of the Property is rented or leased, loss of rental value insurance in an amount equal to twelve (12) months aggregate gross rents from the Property as is so occupied. If all or any portion of the Property is occupied by Borrower, business interruption insurance in an amount equal to twelve (12) months net income from such portion of the Property as is so occupied. The amount(s) of such coverage(s) shall be subject to adjustment, from time to time at Lenders request, to reflect changes in the rental and/or income levels during the term of the Loan. (iv) Commercial general public liability insurance against claims for bodily injury, death or property damage occurring on, in or about the Property (including coverage for elevators and escalators, if any, on the Property), with the coverage being in an amount of not less than One Million Dollars ($1,000,000) combined single-limit liability coverage, or in such greater amount(s) as Lender may reasonably require. (v) Insurance covering the perils of terrorism and acts of terrorism. (vi) Boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, air conditioning and elevator and escalator equipment, provided the improvements contain equipment of such nature, and insurance against loss of occupancy or use arising from breakdovm of any of such items, in such amounts as Lender may reasonably require. (vii) Demolition, increased cost of construction and contingent building laws liability insurance, if and at any time the Property constitutes a legal, non-conforming use under applicable zoning or other governmental laws. (viii) Sinkhole insurance if the Property is located in a sinkhole zone. (ix) Wind storm insurance. (x) Insurance (excluding, however, earthquake insurance) against such similar or other hazards, casualties, liabilities and contingencies, in such forms and amounts, as Lender may from time to time reasonably require. (b) Policies. Each insurance policy will be in form and content acceptable to Lender, with a deductible of no greater than Twenty-Five Thousand Dollars ($25,000.00), and will be issued by a company acceptable to Lender, which company shall, arnong other things, be (i) duly authorized to provide such insurance in the state in which the Property is located, and (ii) rated A- or better with a size rating of V or larger by A.M. Best Company in its most recent publication of ratings (provided, however, that if A.M. Best Company changes its designations, the basis for its ratings or ceases to provide ratings, Lender shall be entitled to select replacement ratings in the exercise of its reasonable business judgment). Each hazard insurance policy will include a Form 438BFU or equivalent mortgagee endorsement in favor of and in form acceptable to Lender, naming Lender as first mortgagee and loss payee, and which endorsement provides that the policy to which it relates will survive foreclosure of this Mortgage. Each liability insurance policy will name Lender as an additional assured. An agreed amount endorsement will be included in any policy containing a co-insurance clause, and Borrower agrees that any -5- |
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and all co-insurance clauses and agreed amount endorsements must be satisfactory to Lender. If any required property insurance coverage is furnished as part of a blanket policy, either the blanket policy will include an agreed value endorsement or agreed amount endorsement, or Borrower will furnish to Lender a copy of the insurers statement of value for the Property. All required policies will provide for at least thirty (30) days written notice to Lender prior to the effective date of any cance1lation or material amendment, which term shall include any reduction in the scope or limits of coverage, and shall include a waiver of subrogation for any policy on which Borrower is a co-insured or additional insured. Borrower shall furnish to Lender (x) the complete original of each required insurance policy, or (y) a certified copy thereof (including all declaration pages, policy forms and endorsements), which shall include an original signature of an authorized officer or agent of the insurer, or (z) an uncertified memorandum copy thereof (including all declaration pages, policy forms and endorsements), together with an original evidence of insurance or certificate of insurance setting forth the coverage, the limits of liability, the carrier, the policy number and the expiration date. As security for the Secured Obligations, Borrower hereby assigns to Lender all required insurance policies, together with all monies and proceeds thereof, rights thereto and all unearned premiums returnable upon cancellation (all such assigned items constituting Property for purposes of this Mortgage). (c) Payment: Renewals. Borrower shall promptly furnish to Lender all renewal notices relating to insurance policies. Except as the same may otherwise be paid under Article III, Borrower will pay all premiums on insurance policies directly to the carrier. At least thirty (30) days prior to the expiration date of each such policy, Borrower shall furnish to Lender a renewal policy in a form acceptable to Lender, together with evidence that the renewal premium has been paid. (d) Insurance Proceeds. (i) In the event of any loss, Borrower will give prompt written notice thereof to the insurance carrier and Lender. Borrower hereby grants Lender a power of attorney, which power of attorney is coupled with an interest and is irrevocable, to make proof of loss, to adjust and compromise any claim, to commence, appear in and prosecute, in Lenders or Borrowers name, any action relating to any claim, and to collect and receive insurance proceeds; provided, however, that Lender shall have no obligation to do so. If no Event of Default (as that term is hereafter defined) has occurred and is continuing, the immediately preceding sentence shall apply except that Lender shall not be entitled to act as Borrowers attorney-in-fact and Borrower shall be entitled to participate jointly with Lender in adjusting and compromising any claim, and appearing in any proceeding. (ii) Except as may otherwise be required by applicable law, Lender shall apply any insurance proceeds received hereunder first to the payment of the costs and expenses incurred in the collection of the proceeds and shall then apply the balance (the Net Proceeds), in its absolute discretion and without regard to the adequacy of its security, to: (A) The payment of indebtedness secured hereby,whether then due and payable or not. Any such application of proceeds to principal on the Note shall be without the imposition of any prepayment fee otherwise payable under the Note, but shall not extend or postpone the due dates of the installment payments under the Note, or change the amounts thereof; or (B) The reimbursement of Borrower, under Lenders prescribed disbursement control procedures, for the cost of restoration or repair of the Property. Lender may, at its option, condition the reimbursement on Lenders approval of the plans and specifications of the reconstruction, contractors cost estimates, construction budget and schedule, architects certificates, waivers of liens, sworn statements of mechanics and materialmen, and such other evidence of costs, percentage completion of construction, application of payments and satisfaction of liens as Lender may reasonably require. (iii) Notwithstanding the provisions of paragraph 2.3(d)(ii) above, Lender agrees that the Net Proceeds from a loss described in this paragraph 2.3(d) will be made available under clause (ii)(B) above to reimburse Borrower for the cost of restoration or repair of the Property, provided that each of the following conditions is satisfied: -6- |
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(A) At the time the proceeds are received, and at all times during the restoration or repair of the Property, no event or circumstance exists which is or which with the passage of time, the giving of notice, or both will constitute an Event of Default; (B) The Net Proceeds are less than the indebtedness then secured by this Mortgage; (C) The proceeds are received more than one (1) year prior to the maturity date of the Note, including any acceleration of the maturity date by Lender if the Note gives Lender a right of acceleration; (D) Borrower gives Lender written notice within thirty (30) days after the proceeds are received that it intends to restore or repair the Property and requests that the Net Proceeds be made available therefor, and Borrower thereafter promptly commences the restoration or repair and completes the same with reasonable diligence in accordance with plans and specifications approved by Lender, which approval shall not be unreasonably withheld; (E) The Net Proceeds are sufficient, in Lenders reasonable business judgment, to restore or repair the Property substantially to its condition prior to the damage or destruction or, if in Lenders reasonable business judgment they are not, Borrower deposits with Lender funds in an amount equal to the deficiency, which funds Lender may, at its option, require be expended prior to use of the Net Proceeds; and (F) Lender receives evidence reasonably satisfactory to Lender that the Property can lawfully be restored or repaired to its condition prior to the damage and destruction and that, upon completion of the restoration or repair, the Property can be operated substantially as it was before and will produce substantially as much income from tenant leases as it did before the damage or destruction. (iv) Except to the extent, if any, that insurance proceeds are applied to payment of the Secured Obligations, nothing herein contained shall be deemed to excuse Borrower from restoring, repairing or maintaining the Property as provided in paragraph 2.4, regardless of whether there are insurance proceeds available or whether any such proceeds are sufficient in amount. (e) Transfer of Title. If the Property is sold pursuant to Article VIII or if Lender otherwise acquires title to the Property, Lender shall have all of the right, title and interest of Borrower in and to any insurance policies and unearned premiums thereon and in and to the proceeds resulting from any damage to the Property prior to such sale or acquisition. 2.4 Preservation and Maintenance of Property: Right of Entry. (a) Preservation and Maintenance. Borrower (i) will not commit or suffer any waste or permit any impairment or deterioration of the Property, (ii) will not abandon the Property, (iii) will restore or repair promptly and in a good and workmanlike manner all or any part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, in the event of any damage, injury or loss thereto, whether or not insurance proceeds are available to cover in whole or in par-t the costs of such restoration or repair, (iv) will keep the Property, including improvements, fixtures, equipment, machinery and appliances thereon, in good condition and repair and shall replace fixtures, equipment, machinery and appliances of the Property when necessary to keep such items in good condition and repair, and (v) will generally operate and maintain the Property in a commercially reasonable manner. (b) Alterations. No building or other improvement on the Realty will be structurally altered, removed or demolished, in whole or in part, without Lenders prior written consent, nor will any fixture or chattel covered by this Mortgage and adapted to the use and enjoyment of the Property be removed at any time without like consent unless actually replaced by an article of equal suitability, owned by Borrower, free and clear of any lien or security interest except such as may be approved in writing by Lender. -7- |
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(c) Right of Entry. Lender is hereby authorized to enter the Property, including the interior of any structures, at reasonable times and after reasonable notice, for the purpose of inspecting the Property and for the purpose of performing any of the acts it is authorized to perform hereunder. 2.5 Hazardous Substances. (a) No Future Hazardous Substances. Borrower will not cause or permit the Property to be used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or process any Hazardous Substance (as defined in this Mortgage), except in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws, nor shall Borrower cause or permit, as a result of any intentional or unintentional act or omission on the part of Borrower or any tenant, subtenant or other user or occupier of the Property, a releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of any Hazardous Substance onto the Property or any other property or into any waters, except in compliance with all such laws. (b) Notification: Clean Up. Borrower will immediately notify Lender if Borrower becomes aware of (i) any Hazardous Substance problem or liability with respect to the Property, (ii) any actual or alleged violation with respect to the Property of any federal, state or local statute, ordinance, rule, regulation or other law pertaining to Hazardous Substances, or (iii) any lien or action with respect to any of the foregoing. Borrower will, at its sole expense, take all actions as may be necessary or advisable for the clean-up of Hazardous Substances on or with respect to the Property, including without limitation all removal, containment and remedial actions in accordance with all applicable laws and in all events in a manner satisfactory to Lender, and shall further pay or cause to be paid all clean-up, administrative and enforcement costs of governmental agencies with respect to Hazardous Substances on or with respect to the Property if obligated to do so by contract or by law. (c) Verification. For the purposes of inspecting the Property to ascertain the accuracy of all representations and warranties in this Mortgage relating to Hazardous Substances, and the observance of all covenants contained in this paragraph 2.5, (i) Lender is hereby authorized to enter and. inspect the Property, including the interior of any structures, at reasonable times and after reasonable notice; and (ii) if and at any time Hazardous Substances are being handled on the Property, Borrower shall furnish Lender with such information and documents as may be reasonably requested by Lender to confirm that such Hazardous Substances are being handled in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws. Borrower shall reimburse Lender upon demand for all costs and expenses, including without limitation attorneys fees, incurred by Lender in connection with any such entry and inspection and the obtaining of such information and documents. 2.6 Parking. If any part of the automobile parking areas included within the Property is taken by condemnation, and before the parking areas are reduced for any other reason, Borrower will take all actions as are necessary to provide parking facilities in kind, size and location to comply with all governmental zoning and other regulations and all leases. Before making any contract for substitute parking facilities, Borrower will furnish to Lender satisfactory assurance of completion thereof free of liens and in conformity with all government zoning and other regulations. 2.7 Use of Property. Borrower will comply with all laws, ordinances, regulations and requirements of any governmental body, and all other covenants, conditions and restrictions, applicable to the Property, and pay all fees and charges in connection therewith. Borrower shall not cause or permit the installation, operation or presence on the Realty of any underground storage tank or system used or to be used for the storage, handling or dispensing of petroleum or any other substance regulated under the Resource Conservation and Recovery Act (42 USC § 6901 et seq.), as now or hereafter amended, or any state or local statute, ordinance, rule, regulation or other law now or hereafter in effect regulating underground storage tanks or systems. Borrower shall not cause or permit all or any of the Realty to be used for a gasoline station, service station or other fueling facility which in whole or in part handles, sells or distributes gasoline, diesel fuel, gasohol or any other substance used in self-propelled motor vehicles. Unless required by applicable law or unless Lender has otherwise agreed in writing, Borrower will not allow changes in the use for which all or any part of the Property was intended at the time this Mortgage was executed. Borrower will not initiate or acquiesce in a change in the zoning classification of the Property without Lenders prior written consent. -8- |
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2.8 Condemnation. (a) Proceedings. Borrower will promptly notify Lender of any action or proceeding relating to any condemnation or other taking (including without limitation change of grade), whether direct or indirect, of the Property or part thereof or interest therein, and Borrower will appear in and prosecute any such action or proceeding unless otherwise directed by Lender in writing. Borrower grants Lender a power of attorney, which power of attorney is coupled with an interest and is irrevocable, to commence, appear in and prosecute, in Lenders or Borrowers name, any action or proceeding relating to any such condemnation or other taking, and to settle or compromise any claim in connection with such condemnation or other taking; provided, however, that Lender shall have no obligation to do so. All awards, payments, damages, direct, consequential and otherwise, claims, and proceeds thereof, in connection with any such condemnation or other taking, or for conveyances in lieu of condemnation, are hereby assigned to Lender (all such assigned items constituting Property for purposes of this Mortgage); all proceeds of any such awards, payments, damages or claims shall be paid to Lender. (b) Application of Proceeds. Lender shall apply any such proceeds in the manner and upon the terms and conditions set forth in paragraph 2.3(d)(ii) relating to the application of insurance proceeds, without regard to the provisions of paragraph 2.3(d)(iii). 2.9 Protection of Lenders Security. Borrower will give notice to Lender of and will, at its expense, appear in and defend any action or proceeding that might affect the Property or title thereto or the interests of Lender therein or the rights or remedies of Lender. If any such action or proceeding is commenced or if Lender is made a party to any such action or proceeding by reason of this Mortgage, or if Borrower fails to perform any obligation on its part to be performed hereunder, then Lender, in its discretion, may make any appearances, disburse any sums, make any entries upon the Property and take any actions as may be necessary or desirable to protect or enforce the security of this Mortgage, to remedy Borrowers failure to perform its obligations (without, however, waiving any default by Borrower) or otherwise to protect Lenders interests. Borrower will pay all losses, damages, fees, costs and expenses, including reasonable attorneys fees, of Lender thus incurred. This paragraph shall not be construed to require Lender to incur any expenses, make any appearances or take any actions. 2.10 Reimbursement of Lenders Expenses. All amounts disbursed by Lender pursuant to paragraph 2.9 or any other provision of this Mortgage, with interest thereon, shall be additional indebtedness of Borrower secured by this Mortgage. All such amounts shall be immediately due and payable and shall bear interest from the date of disbursement at the interest rate in effect on the Note from time to time, or at the maximum rate which may be collected from Borrower on such amounts by the payee thereof under applicable law if that is less. 2.11 Books and Records: Financial Statements. Borrower will keep and maintain at Borrowers address stated above, or such other place as Lender may approve in writing, books of accounts and records adequate to reflect correctly the results of the operation of the Property and copies of all written contracts, leases and other instruments which affect the Property. Such books, records, contracts, leases and other instruments shall be subject to examination, inspection and copying at any reasonable time by Lender. Borrower will furnish to Lender, within twenty (20) days after Lenders request therefor, the following documents, each certified to Lender by Borrower as being true, correct and complete: (a) a copy of all leases and other agreements for the occupancy or use of all or any part of the Property, (b) a rent ro11 for the Property, showing the name of each tenant, and for each tenan, the suite occupied, the number of square feet rented, the lease expiration date, the rent payable, the date through which rent has been paid, the amount of any security deposit and the number and term of any renewal options, (c) a copy of the most recent real and personal property tax statements for the Property, (d) a copy of the most recent statements for the insurance coverages maintained under paragraph 2.3(a) of this Mortgage, and (e) a statement of income and expenses of the Property for the most recently ended fiscal year of Borrower. In addition, Borrower and any general partner therein will furnish to Lender, within twenty (20) days after Lenders request therefor, a complete and current financial statement, in reasonable detail and certified as correct by Borrower or such partner. Borrower and any general partner therein hereby irrevocably authorize Lender to obtain credit reports on Borrower and any such general partner on one or more occasions during the term of the Loan. -9- |
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ARTICLE III RESERVES 3.l Deposits. If required by Lender, Borrower will, at the time of making each installment payment under the Note, deposit with Lender a sum, as estimated by Lender, equal to (a) the taxes and special assessments next due on the Property, and (b) the premiums that will next become due on insurance policies as may be required under this Mortgage, less all sums already deposited therefor, divided by the number of months to elapse before one (1) month prior to the date when such rents, taxes, special assessments and premiums will become delinquent. Lender may require Borrower to deposit with Lender, in advance, such other sums for other taxes, assessments, premiums, charges and impositions in connection with Borrower or the Property as Lender reasonably deems necessary to protect Lenders interests (herein Other Impositions). Such sums for Other Impositions shall be deposited in a lump sum or in periodic installments, at Lenders option. If required by Lender, Borrower will promptly deliver to Lender all bills and notices with respect to any rents, taxes, assessments, premiums and Other Impositions. All sums deposited with Lender under this paragraph 3.1 are hereby pledged as security for the Secured Obligations. 3.2 Application of Deposits. All such deposited sums shall be held by Lender and applied in such order as Lender elects to pay such rents, taxes, assessments, premiums and Other Impositions or, in the Event of Default hereunder, may be applied in whole or in part, to indebtedness secured hereby. The arrangement provided for in this Article III is solely for the added protection of Lender and, except as may otherwise be required by applicable law, entails no responsibility on Lenders part beyond the allowing of due credit, without interest, for the sums actually received by it. Upon any assignment of this Mortgage by Lender, any funds on hand shall be turned over to the assignee and any responsibility of Lender with respect thereto shall terminate. Each transfer of the Property shall automatically transfer to the transfer all rights of Borrower with respect to any funds accumulated hereunder. Upon payment in full of the Secured Obligations, Lender shall promptly refund to Borrower the remaining balance of any deposits then held by Lender. 3.3 Adjustments to Deposits. If the total deposits held by Lender exceed the amount deemed necessary by Lender to provide for the payment of such taxes, assessments, premiums and Other Impositions as the same fall due, then such excess shall, provided no Event of Default then exists hereunder, be credited by Lender on the next due installment or installments of such deposits. If at any time the total deposits held by Lender is less than the amount deemed necessary by Lender to provide for the payment thereof as the same fall due, then Borrower will deposit the deficiency with Lender within thirty (30) days after written notice to Borrower stating the amount of the deficiency. ARTICLE IV RESTRICTIONS ON TRANSFER OR ENCUMBRANCE 4.1 Restrictions on Transfer or Encumbrance of the Property. (a) A Transfer is: Any sale (by contract or otherwise), encumbrance, conveyance or other transfer of the Property or any part thereof or interest therein; or any change in the ownership of any stock interest in a corporate Borrower, in the ownership of any membership interest or in the manager of a lirnited liability company Borrower, in the ownership of any general partnership interest in any general or limited partnership Borrower, or in the ownership of any beneficial interest in any other Borrower which is not a natural person or persons (including without limitation a trust); or any change in the ownership of any such stock, membership, general partnership or other beneficial interest in any corporation, limited liability company, partnership, trust or other entity, organization or association directly or indirectly owning an interest in Borrower, or a change in the manager of a limited liability company. A change in the ownership of a limited partnership interest in a limited partnership shall not be deemed a Transfer. (b) Without the prior written consent of Lender, in the Lenders sole and absolute discretion, no Transfer shall occur, whether by voluntary or involuntary conveyance, transfer, grant or assignment, by operation of law, or in any other manner. The occurrence of any Transfer without Lenders prior written consent shall -10- |
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constitute an Event of Default under this Mortgage and shall entitle Lender, at its sole and absolute discretion, to exercise any remedy or remedies provided for in paragraph 8.1 hereof. In the event that Lender in its sole and absolute discretion elects to consent to any such Transfer, Lender may condition its consent upon the payment of a fee to Lender, or an increase in the rate of interest due under the Note, or the items in paragraph 4.l(d) below, or any combination of the foregoing. Notwithstanding the foregoing the occurrence of a Transfer under any will, trust or applicable law of descent arising because of the death of an individual shall not constitute an Event of Default, so long as Lender is given prompt notice of the Transfer and the transferee. Lenders consent to a Transfer or its waiver of an Event of Default by reason of a Transfer shall not constitute a consent or waiver of any right, remedy or power accruing to Lender by reason of any subsequent Transfer. (c) Lender will give its written consent to Transfers (i) of limited partnership interests in GTJ Realty LP (provided that any pledge is to an institutional quality lender such as a bank or insurance company), (ii) under any will, trust or applicable law of descent arising because of an individuals death, provided that Lender is given prompt notice of the transfer and transferee, (iii) of interests in the borrower or any sub-entity to the transferors spouse and/or lineal descendants or trusts established for the transferors spouse and/or lineal descendants whose beneficiaries are the transferor, the transferors spouse and/or lineal descendants, or (iv) of shares of GTJ REIT, Inc. With respect to Transfers under clauses (i), (ii) and (iii) above, Lender shall (a) receive prior notice (except in the case of the death of an individual), (b) have reviewed and approved the transfer and related documents, (c) receive assurances that the lien priority of this Mortgage will not be affected, (d) receive a $1,500.00 transfer review fee plus payments of Lenders costs and expenses. Under clauses (ii), (iii) and (iv) above, the managerial control of the Property must remain satisfactory to Lender following the Transfer. Notwithstanding the foregoing, Borrower shall provide Lender with written notice of any change in the Chief Executive Officer or the President of GTJ REIT, Inc. (d) For any Transfer permitted under this Mortgage or requested by Borrower, Lender may condition its consent upon: The Property having been and assurances that it shall continue to be well maintained and managed in a manner reasonably satisfactory to Lender; Lenders approval of the Transfer terms, documents and background materials; there being no uncured Event of Default under this Mortgage; Borrower furnishing an endorsement to Lenders title insurance policy insuring the continued validity and priority of the lien of this Mortgage following the Transfer and such subordination agreements and other documents as may be required by Lender or its title company to issue the endorsement. Unless Lender in its sole discretion otherwise agrees in writing at that time, no Transfer shall release the transferor from any liability under the Loan Documents or the Environmental Indemnity. By accepting a Transfer, the transferee assumes any and all liability of the transferor under the Loan Documents and the Environmental Indemnity to the extent the transferor has personal liability. At Lenders request, the parties shall execute agreements, guaranties and indemnities in form and substance acceptable to Lender. Regardless whether Lender consents to a Transfer request, Borrower agrees to pay all of Lenders out-of pocket expenses incurred in connection with any Transfer request, including without limitation title fees and attorneys fees and costs, and Lender may condition its willingness to consider a Transfer request upon a deposit to pay for Lenders expenses. 4.2 Loan Assumption Provision. Notwithstanding any provision of this Mortgage to the contrary, Lender will consent to one sale of the Property to, and the related and concurrent assumption of the Borrowers obligations under the Loan by, an unrelated third party (Buyer) (a Loan Assumption), provided that each of the following conditions is met in a manner acceptable to Lender, in its sole and absolute discretion, at the time of the Loan Assumption: (a) No event or circumstance has occurred which is or which with the passage of time, the giving of notice, or both will constitute an Event of Default; and (b) Borrower gives Lender at least thirty (30) days prior written notice of the proposed transfer and copies of all proposed transfer documents; and (c) Buyer evidences a history of property management satisfactory to Lender or contracts for management of the Property with a property management firm satisfactory to Lender; and 11 |
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(d) If the unpaid balance of the Loan at the time of the Loan Assumption exceeds sixty-five percent (65%) of the sale price of the Property, a prepayment of the Loan shall, if required by Lender, be made at the time of the Loan Assumption in the amount of the excess, together with the applicable prepayment fee; and (e) Lender is paid at the time Borrower requests approval of the Loan Assumption, an assumption fee equal to one percent (1%) of the then outstanding Loan balance or $7,500.00, whichever is greater, plus Lenders legal and administrative expenses incurred in connection with such sale and assumption; and (f) Buyer, the financial statements, financial strength, tax returns and credit history of Buyer, the sale agreement and related documents, and all aspects of the sale and assumption shall be satisfactory to Lender; and (g) Borrower provides a new guarantor or guarantors for the Loan who are acceptable to Lender in its sole discretion; and (h) Borrower, the original guarantor(s), Buyer and the new guarantor(s) enter into an assumption agreement and such other documents as are requested by Lender in order to confirm the Loan Assumption and protect the liens and other security for the Loan; and (i) Borrower furnishes Lender, at Borrowers expense, vvith the following: (i) An endorsement to Lenders title insurance policy, in form and content satisfactory to Lender, insuring the continued validity, enforceability and priority of this Mortgage following the sale and Loan Assumption; and (ii) Such subordination agreements and other documents, in form and content satisfactory to Lender and the title company, as may be required by the title company in order to issue the endorsement; and (j) At the time of the Loan Assumption, Lender may, in its sole discretion, require the continuation or the establishment, as the case may be, of a reserve account under Article III of this Mortgage; and (k) Lender reviews and approves both: (i) the new borrower ownership structure and (ii) the new guarantor, and is able to confirm that no person or entity associated with the new borrower or guarantor (A) is listed in the Annex to, or is otherwise subject to the provisions of, Executive Order 13224 issued on September 24, 2001 (EO 13244); (B) name appears on the United States Treasury Departments Office of Foreign Assets Control (OFAC) most current list of Specifically Designated National and Blocked Persons (which list may be published from time to time in various mediums, including, but not limited to, the OFAC website (http://www.treasurv.gov/ofac/downloads/tl lsdn.pdf); (C) is a person who commits, threatens io commit or supports terrorism, as that term is defined in EO 13224; or (D) is otherwise affiliated with any entity or person listed above; and (l) Assumption of the Loan shall be conditioned upon the simultaneous assumption of Genworth Loan No. 901000544 extended by Lender to WU/LH 300 American L.L.C. and WU/LH 500 American. L.L.C., in accordance with the terms of the assumption set forth in the loan documents for such loan; and (m) Lender shall, in connection with a Loan Assumption effected in accordance with the foregoing, release the transferring Borrower and the original guarantor(s) from liability under the non-recourse exceptions set forth in the Note and Unconditional Guaranty and from liability under the Environmental Indemnity to the extent that such liability arose from acts or omissions occurring after the closing of the Loan Assumption; provided, however, that where the time when any act or omission took place is in dispute, the transferring Borrower and/or released guarantor, as applicable, shall have the burden of proof that such act or occurrence took place after the closing of the Loan Assumption. Notwithstanding the foregoing sentence, Lender may specify in its approval of a proposed Loan Assumption that Borrower and/or any guarantor(s) remain liable under the non-recourse exceptions 12 |
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set forth in the Note and Unconditional Guaranty and the Environmental Indemnity, in which case, Lender shall not be required to release Borrower and/or such guarantor(s) from any liability under the non-recourse exceptions set forth in the Note and Unconditional Guaranty and the Environmental Indemnity. ARTICLE V UNIFORM COMMERCIAL CODE SECURITY AGREEMENT 5.l Grant to Lender. This Mortgage constitutes a security agreement pursuant to the Uniform Commercial Code with respect to: (a) Any of the Property which, under applicable law, is not real property or effectively made part of the real property by the provisions of this Mortgage; and (b) Any and all other property now or hereafter described on any Uniform Commercial Code Financing Statement naming Borrower as Debtor and Lender as Secured Party and affecting property in any way connected with the use and enjoyment of the Property (any and all such other property constituting Property for purposes of this Mortgage); and Borrower hereby grants Lender a security interest in all property described in clauses (a) and (b) above as security for the Secured Obligations. Borrower and Lender agree, however, that neither the foregoing grant of a security interest nor the filing of any such financing statement shall ever be construed as in any way derogating from the parties stated intention that everything used in connection with the production of income from the Property or adapted for use therein or which is described or reflected in this Mortgage is and at all times shall be regarded for all purposes as part of the real property. 5.2 Lenders Rights and Remedies. With respect to Property subject to the foregoing security interest, Lender has all of the rights and remedies (i) of a secured party under the Uniform Commercial Code, (ii) provided herein, including without limitation the right to cause such Property to be sold by Lender under the power of sale granted by this Mortgage or in any other manner permitted by applicable law, and (iii) provided by law. In exercising its remedies, Lender may proceed against the items of real property and any items of personal property separately or together and in any order whatsoever, without in any way affecting the availability of Lenders remedies. Upon demand by Lender during the existence of an Event of Default hereunder, Borrower will assemble any items of personal property and make them available to Lender at the Property, a place which is hereby deemed to be reasonably convenient to both parties. Lender shall give Borrower at least five (5) days prior written notice of any time and place of any public sale or other disposition of such Property or of the time of or after which any private sale or any other intended disposition is to be made. Any person permitted by law to purchase at any such sale may do so. Such Property may be sold at any one or more public or private sales as permitted by applicable law. All expenses incurred in realizing on such Property shall be borne by Borrower. 5.3 Fixture Filing. This Mortgage covers goods which are or are to become fixtures on the Realty, and this Mortgage constitutes and is filed as a fixture filing (as that term is defined in the New York Uniform Commercial Code) upon such of the Property which is or may become fixtures. Borrower has an. interest of record in the Realty. 5.4 Lender Authorization to File Financing Statement: Borrower Cooperation. Borrower hereby authorizes Lender to file one or more Uniform Commercial Code Financing Statements with respect to the Property. Borrower covenants and agrees that it will promptly furnish to Lender, upon Lenders request, such information as may be required in order for Lender to do so. 13 |
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ARTICLE VI ASSIGNMENT OF RENTS AND LEASES; LEASES OF PROPERTY: APPOINTMENT OF RECEIVER; LENDER IN POSSESSION 6.1 Assignment of Rents and Leases. As security for the Secured Obligations, Borrower hereby assigns and transfers to Lender all right, title and interest of Borrower in and to (a) any and all present and future leases and other agreements for the occupancy or use of all or any part of the Property, and any and all extensions, renewals and replacements thereof (collectively Leases), including without limitation the leases, if any, described on Exhibit C attached, (b) all cash or security deposits, advance rentals and deposits or payments of similar nature under the Leases, (c) any and all guaranties of tenants or occupants performances under any and all Leases, and (d) all rents, issues, profits and revenues (collectively Rents) now due or which may become due or to which Borrower may now or shall hereafter become entitled or may demand or claim (including Rents coming due during any: redemption period), arising or issuing from or out of any and all Leases, including without limitation minimum, additional, percentage and deficiency rents and liquidated damages. 6.2. Collection of Rents. Prior to the occurrence of any event or circumstance which is or which with the passage of time, the giving of notice or both will constitute an Event of Default, Borrower shall collect and receive all Rents of the Property as trustee for the benefit of Lender and Borrower, and apply the Rents so collected first to the payment of taxes, assessments and other charges on the Property prior to delinquency, second to the cost of insurance, maintenance and repairs required by the terms of this Mortgage, third to the costs of discharging any obligation or liability of Borrower under the Leases, and fourth to the indebtedness secured hereby, with the balance, if any, so long as no such event or circumstance has occurred, to the account of Borrower. Upon notice from Lender to Borrower of the occurrence of any event or circumstance which is or which with the passage of time, the giving of notice or both will constitute an Event of Default hereunder and stating that Lender exercises its rights to the Rents, and without the necessity of Lender entering upon and taking and maintaining full contra1 of the Property in person, by agent or by a court-appointed receiver, Lender shall immediately be entitled to possession of all Rents from the Property as the same become due and payable, including without limitation Rents then due and unpaid, and all such Rents shall immediately be held by Borrower as trustee for the benefit of Lender only. Upon the occurrence of any Event of Default, Lender may make written demand upon all or some of the tenants and occupants of the Property to pay all Rents to Lender, and Borrower hereby agrees that each such tenant and occupant shall have no liability to inquire further as to the existence of a default by Borrower. Upon such written demand by Lender, Borrower hereby agrees to direct each tenant or occupant of the Property to pay all Rents to Lender. Payments made to Lender by tenants or occupants shall, as to such tenants and occupants, be in discharge of the payors obligations to Borrower. Lender may exercise, in Lenders or Borrowers name, all rights and remedies available to Borrower with respect to collection of Rents. Nothing herein contained shall be construed as obligating Lender to perform any of Borrowers obligations under any of the Leases. 6.3 Borrowers Representations and Warranties. Borrower represents and warrants to Lender that Borrower has not executed and will not execute any other assignment of said Leases or Rents, that Borrower has not performed and will not perform any acts and has not executed and will not execute any instrument which would prevent Lender from exercising its rights under this Article V1, and that at the time of execution of this Mortgage there has been no anticipation or prepayment of any of the Rents of the Property for more than two (2) months prior to the due dates thereof. Borrower further represents and warrants to Lender that all existing Leases are in good standing and there is no default thereunder, whether by Borrower or lessee, nor to Borrowers knowledge event or condition which, with notice or the passage of time or both, would be a default thereunder. 6.4 Leases of the Property. Borrower will comply with and observe Borrowers obligations as landlord under all Leases and will do all t.hat is necessary to preserve all Leases in force and free from any right of counterclaim, defense or setoff. Without Lenders written consent, Borrower will not collect or accept payment of any Rents of the Property more than two (2) months prior to the due dates thereof, will not enter into, execute, modify or extend any Lease now existing or hereafter made providing for a term (assuming that all renewal options, if any, are exercised) of more than five (5) years unless the area demised by the Lease is less than twenty-five percent (25%) of the net rentable area of the building(s) at the Property. Without Lenders written consent, Borrower will not surrender or terminate any Lease now existing or hereafter made providing a term (assuming that all renewal 14 |
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options, if any, are exercised) of more than five (5) years nor will Borrower surrender or terminate in any single twelve-month period Leases demising more than twenty-five percent (25%) of the aggregate total net rentable area. Each Lease of the Property will be subordinate to the lien of this Mortgage, unless Lender elects that the Lease shall be superior to this Mortgage, and each tenant shall execute an appropriate subordination or attornment agreement as may be required by Lender. To the extent required by Lender, each tenant shall execute an estoppel certificate and acknowledge receipt of a notice of the assignment to Lender of its Lease, all satisfactory in form and content to Lender. Without Lenders written consent, Borrower will not request or consent to the subordination of any Lease to. any lien subordinate to this Mortgage. 6.5 Lender in Possession: Appointment of Receiver. Upon the occurrence of any Event of Default hereunder, Lender may, in person, by agent or by a court-appointed receiver, regardless of the adequacy of Lenders security, enter upon and take and maintain full control of the Property in order to perform all acts necessary and appropriate for the operation and maintenance thereof in the same manner and to the same extent as Borrower could do the same, including without limitation the execution, enforcement, cancellation and modification of Leases, the collection of all Rents of the Property, the removal and eviction of tenants and other occupants, the making of alterations and repairs to the Property, and the execution and termination of contracts providing for management or maintenance of the Property, all on such terms as are deemed best by Lender to protect the security of this Mortgage. From and after the occurrence of any such Event of Default, if any owner of the Property shall occupy the :Property or part thereof such owner shall pay to Lender in advance on the first day of each month a reasonable rental for the space so occupied, and upon failure so to do Lender shall be entitled to remove such owner from the Property by any appropriate action or proceedings. Following the occurrence of an Event of Default, Lender shall be entitled (without notice and regardless of the adequacy of Lenders security) to the appointment of a receiver, Borrower hereby consenting to the appointment of such receiver, and the receiver shall have, in addition to all the rights and powers customarily given to and exercised by such receivers, all the rights and powers granted to Lender in this Article VI. Lender or the receiver shall be entitled to receive a reasonable fee for so managing the Property. 6.6 Application of Rents. All Rents collected subsequent to delivery of written notice by Lender to Borrower of an Event of Default hereunder shall be applied first to the costs, if any, of taking control of and managing the Property and collecting the Rents, including without limitation attorneys fees, receivers fees, premiums on receivers bonds, costs of maintenance and repairs to the Property, premiums on insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any obligation or liability of Borrower under the Leases, and then to the indebtedness secured hereby. Lender or the receiver shall be liable to account only for those Rents actually received. Lender shall not be liable to Borrower, anyone claiming under or through Borrower or anyone having an interest in the Property by reason of anything done or left undone by Lender under this Article VlI 6.7 Deficiencies. To the extent, if any, that the costs of taking control of and managing the Property, collecting the Rents, and discharging obligations and liabilities of Borrower under the Leases, exceed the Rents of the Property, the excess sums expended for such purposes shall be indebtedness secured by this Mortgage. Such excess sums shall be payable upon demand by Lender and shall bear interest from the date of disbursement at the default rate of interest stated in the Note, or the maximum rate which may be collected from Borrower therefor under applicable law if that is less. 6.8 Lender Not Mortgagee in Possession. Nothing herein shall constitute Lender a mortgagee in possession prior to its actual entry upon and taking possession of the Property. Entry upon and taking possession by a receiver shall not constitute possession by Lender. 6.9 Enforcement. Lender may enforce this assignment without first resorting to or exhausting any security or collateral for the indebtedness. As used in this Article VI, the word lease shall mean sublease if this Mortgage is on a leasehold. This assignment shall terminate at such time as this Mortgage ceases to secure payment of indebtedness held by Lender. 15 |
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6.10 New York Law Reference. This assignment shall be governed by and construed in accordance with the laws of the State of New York. Reference is hereby made for purposes of this Mortgage to Section 291-f of the New York Real Property Law, as amended. ARTICLE VII EVENTS OF DEFAULT 7.1 Events of Default. The occurrence of any one or more of the following shall constitute an Event of Default hereunder: (a) Borrowers failure to make any payment when due under the Note, this Mortgage or any of the other Loan Documents, followed by Borrowers failure to make such payment within ten (10) days after written notice thereof given to Borrower by Lender; provided, however, that Lender shall not be obligated to give Borrower written notice prior to exercising its remedies with respect to such default if Lender had previously given Borrower during the previous twelve (12) month period a notice of default for failure to make a payment of similar type. (b) Borrowers failure to perform any other covenant, agreement or obligation under the Note, this Mortgage or any of the other Loan Documents, followed by Borrowers failure to cure such default within thirty (30) days after written notice thereof given to Borrower by Lender (or if such cure cannot be completed within such thirty (30) day period through the exercise of diligence, the failure by Borrower to commence the required cure within such thirty (30) day period and thereafter to continue the cure with diligence and to complete the cure within ninety (90) days following Lenders notice of default). (c) Borrower or any trustee of Borrower files a petition in bankruptcy or for an arrangement, reorganization or any other form of debtor relief; or such a petition is filed against Borrower or any trustee of Borrower and the petition is not dismissed within forty-five (45) days after filing. (d) A decree or order is entered for the appointment of a trustee, receiver or liquidator for Borrower or Borrowers property, and such decree or order is not vacated within forty-five (45) days after the date of entry. (e) Borrower commences any proceeding for dissolution or liquidation; or any such proceeding is commenced against Borrower and the proceeding is not dismissed within forty-five (45) days after the date of commencement. (f) Borrower makes an assignment for the benefit of its creditors, or admits in writing its inability to pay its debts generally as they become due. (g) There is an attachment, execution or other judicial seizure of any portion of Borrowers assets and such seizure is not discharged within fifteen (15) days. (h) Any representation or disclosure made to Lender by Borrower or any guarantor in connection herewith proves to be materially false or misleading when made, whether or not that representation or disclosure is contained in the Loan Documents. (i) The existence of any event of default under any of the documents evidencing or securing the loan in the original principal amount of Fifteen Million One Hundred Thousand Dollars (S15,100,000.00) extended by Lender to WU/LH 300 American L.L.C. and WU/LH 500 &American L.L.C. 7.2 Form of Notice. At Lenders option, any written notice of default required to be given to Borrower under paragraph 7.1 may be given in the form of a statutory notice of default under the laws of the State of New York relating to foreclosures of mortgages. 16 |
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ARTICLE VIII REMEDIES 8.1 Acceleration Upon Default: Additional Remedies. Upon the occurrence of any Event of Default hereunder, Lender may, at its option and without notice to or demand upon Borrower, take any one or more of the following actions: (a) Declare any or all indebtedness secured by this Mortgage to be due and payable immediately. (b) Bring a court action to enforce the provisions of this Mortgage or any of the indebtedness or obligations secured by this Mortgage. (c) Lender shall have the right to foreclose this Mortgage in accordance with applicable law by judicial proceedings, or to the full extent permitted by applicable law from time to time, to foreclose this Mortgage under the power of sale herein granted pursuant to Sections 1401 through 1461 of the New York Real Property Law (Actions & Proceedings) or such other laws as may be in effect from time to time, after publishing posting, and serving notice as required by applicable law. Lender may bid and purchase at such sale. If at the time of the sale Lender shall deem it best for any reason to postpone or continue said sale for one or more days, Lender may do so, in which event notice of such postponement or continuance shall be made in such manner as the Lender may deem sufficient under applicable law. Lenders costs and expenses of sale shall be an additional indebtedness secured hereby. (d) In the event of any foreclosure to the extent permitted by applicable law, Lender will be entitled to a judgment which will provide that if the foreclosure sale proceeds are insufficient to satisfy the judgment, execution may issue for any amount by which the unpaid balance of the obligations secured by this Mortgage exceeds the net sale proceeds payable to Lender. (e) Cause any or all of the Property to be sold under the power of sale granted by this Mortgage in any manner permitted by applicable law. (f) Exercise any or all of the rights and remedies provided for under this Mortgage and the other Loan Documents. (g) Exercise any other right or remedy available under law or in equity. 8.2 Exercise of Power of Sale. For any sale under the power of sale gra.11ted by this Mortgage, to the extent permitted by applicable law, Lender shall record and give all notices required by law and then, upon the expiration of such time as is required by law, Lender may sell the Property upon any terms and conditions specified by Lender and permitted by applicable law. Lender may postpone any sale by public announcement at the time and place noticed for the sale. If the Property includes several lots or parcels, Lender in its discretion may designate their order of sale or may elect to sell all of them as an entirety. The Property, real, personal and mixed, may be sold in one parcel. To the extent any of the Property sold by Lender is personal property, Lender shall be acting as the agent of Lender in selling such Property. Any person permitted by law to do so may purchase at any sale. Upon any sale, Lender will execute and deliver to the purchaser or purchasers a deed or deeds conveying the Property sold, but without any covenant or warranty, express or implied, and the recitals in the Lenders deed showing that the sale was conducted in compliance with all the requirements of law shall be prima facie evidence of such compliance and conclusive evidence thereof in favor of bona fide purchasers and encumbrances for value. 8.3 Application of Sale Proceeds. Except as may otherwise be required by applicable law, the proceeds of any sale under this Mortgage will be applied in the following manner: FIRST: Payment of the costs and expenses of the sale, including without limitation Lenders fees, legal fees and disbursements, title charges and transfer taxes, and payment of all expenses, liabilities and advances of 17 |
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Lender, together with interest on all advances made by Lender from date of disbursement at the applicable interest rate under the Note from time to time or at the maximum rate permitted to be charged by Lender under the applicable law if that is less. SECOND: Payment of all sums expended by Lender under the terms of this Mortgage and not yet repaid, together with interest on such sums from date of disbursement at the applicable interest rate under the Note from time to time or the maximum rate permitted by applicable law if that is less. THIRD: Payment of all other indebtedness secured by this Mortgage in any order that Lender FOURTH: The remainder, if any, to the person or persons legally entitled to it. 8.4 Waiver of Order of Sale and Marshalling. Lender shall have the right to determine the order in which any and all portions of the Secured Obligations are satisfied from the proceeds realized upon the exercise of any remedies provided herein. Borrower, any person who consents to this Mortgage and any person who now or hereafter acquires a security interest in the Property hereby waives, to the extent permitted by law, any and all right to require marshalling of assets in connection with the exercise of any of the remedies provided herein or to direct the order in which any of the Property will be sold in the event of any sale under this Mortgage. 8.5 Non-Waiver of Defaults. The entering upon and talking possession of the Property, the collection of Rents or the proceeds of fire and other insurance policies or compensation or awards for any taking or damage of the Property, and the application or release thereof as herein provided, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 8.6 Expenses During Redemption Period. If this Mortgage is foreclosed through court action and the Property sold at a foreclosure sale, the purchaser may during any redemption period allowed, make such repairs or alterations on the Property as may be reasonably necessary for the proper operation, care, preservation, protection and insuring thereof. Any sums so paid together with interest thereon from the time of such expenditure at the default rate of interest stated in the Note or the highest lawful rate if that is less shall be added to and become a part of the amount required to be paid for redemption from such sale. 8.7 Foreclosure Subject to Tenancies. Lender shall have the right at its option to foreclose this Mortgage subject to the rights of any tenant or tenants of the Property. 8.8 Evasion of Prepayment Terms. If an Event of Default hereunder has occurred and is continuing, a tender of payment of the indebtedness secured hereby at any time prior to or at a judicial or nonjudicial foreclosure sale of the Property by Borrower or anyone on behalf of Borrower shall constitute an. evasion of the prepayment terms of the Note and shall constitute voluntary prepayment thereunder and any such tender shall to the extent permitted by law include the additional payment required under the prepayment privilege, if any, contained in the Note or, if at that time there is no prepayment privilege, then such payment shall to the extent permitted by law include an additional payment of five percent (5%) of the then principal Loan balance. 8.9 Remedies Cumulative. To the extent permitted by law, every right and remedy provided in this Mortgage is distinct and cumulative to all other rights or remedies under this Mortgage or afforded by law or equity or any other agreement between Lender and Borrower, and may be exercised concurrently, independently or successively, inany order whatsoever. Lender may exercise any of its rights and remedies at its option without regard to the adequacy of its security. 8.10 Lenders Expenses. Borrower will pay all of Lenders expenses incurred in any efforts to enforce any terms of this Mortgage, whether or not any suit is filed, including without limitation reasonable legal fees and disbursements, foreclosure costs and title charges. AU such sums, with interest thereon, shall be additional indebtedness of Borrower secured by this Mortgage. Such sums shall be immediately due and payable and shall bear 18 |
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interest from the date of disbursement at the default rate of interest stated in the Note, or the maximum rate which may be collected from Borrower under applicable law if that is less. ARTICLE IX GENERAL 9.1 Application of Payments. Except as applicable law or this Mortgage may otherwise provide, all payments received by Lender under the Note or this Mortgage shall be applied by Lender in the following order of priority: (a) Lenders expenses incurred in any efforts to enforce any terms of this Mortgage; (b) amounts payable to Lender by Borrower under Article III for reserves; (c) interest and late charges payable on the Note; (d) principal of the Note; (e) interest payable on advances made to protect the security of this Mortgage; (f) principal of such advances; and (g) any other sums secured by this Mortgage in such order as Lender, at its option, may determine; provided, however, that Lender may, at its option, apply any such payments received to interest on and principal of advances made to protect the security of this Mortgage prior to applying such payments to interest on or principal of the Note. 9.2 Reconveyance. Upon payment of all sums secured by this Mortgage, Lender shall reconvey the Property without warranty to the person or persons legally entitled thereto and shall surrender this Mortgage and all notes evidencing indebtedness secured by this Mortgage. The grantee in any reconveyance may be described as the person or persons legally entitled thereto, and the recitals therein of any matters or facts shall be conclusive proof of the truthfulness thereof. Such person or persons shall pay Lenders reasonable costs incurred in so reconveying the Property. 9.3 Lenders Powers. Without affecting the liability of any person for payment or performance of the Secured Obligations, or any of Lenders rights or remedies, or the priority of this Mortgage, Lender, at its option, may extend the time for payment of the indebtedness secured hereby or any part thereof, reduce payment thereon, release anyone liable on any of said indebtedness, accept a renewal note or notes-therefor, modify the terms and time of payment of the indebtedness, release the lien of this Mortgage on any part of the Property, take or release other or additional security, release or reconvey or cause to be released or reconveyed all or any part of the Property, or consent to the making of any map or plat of the Property, consent to the granting of any easement or creating any restriction on the Property, or join in any subordination or other agreement affecting this Mortgage or the lien or charge hereof. Borrower shall pay Lender a reasonable service charge, together with such title insurance premiums and attorneys fees as may be incurred at Lenders option, for any such action if taken at Borrowers request. 9.4 Subrogation. Lender shall be subrogated for further security to the lien, although released of record, of any and all encumbrances discharged, in whole or in part, by the proceeds of the Loan or any other indebtedness secured hereby. 9.5 Limitation on Interest and Charges. Interest, fees and charges collected or to be collected in connection with the indebtedness secured hereby shall not exceed the maximum, if any, permitted by an applicable law. If any such law is interpreted so that said interest, fees and/or charges would exceed any such maximum and Borrower is entitled to the benefit of such law, then: (a) such interest, fees and/or charges shall be reduced by the amount necessary to reduce the same to the permitted maximum; and (b) any sums already paid to Lender which exceeded the permitted maximum will be refunded. Lender may choose to make the refund either by treating the payments, to the extent of the excess, as prepayments of principal or by making a direct payment to the person(s) entitled thereto. No prepayment premium shall be assessed on prepayrnents under this paragraph. The provisions of this paragraph shall control over my inconsistent provision of this Mortgage or the Note or any other Loan Documents. 9.6 Additional Documents: Power of Attorney. Borrower, from time to time, will execute, acknowledge and deliver to Lender upon request, and hereby grants Lender a power of attorney, which power of attorney is coupled with an interest and is irrevocable, to execute, acknowledge, deliver and if appropriate file and record, such security agreements, assignments for security purposes, assignments absolute, financing statements, affidavits, certificates and other documents, in form and substance satisfactory to Lender, as Lender may request in 19 |
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order to perfect, preserve, continue, extend or maintain the assignments herein contained, the lien and security interest under this Mortgage, and the priority thereof. Borrower will pay to Lender upon request therefor all costs and expenses incurred in connection with the preparation, execution, recording and filing of any such document. 9.7 Waiver of Statute of Limitations. To the full extent Borrower may do so, Borrower hereby waives the right to assert any statute of limitations as a defense to the enforcement of the lien of this Mortgage or to any action brought to enforce the Note or any other obligation secured by this Mortgage. 9.8 Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any right or remedy, and no waiver by Lender of any particular default by Borrower shall constitute a waiver of any other default or of any similar default in the future. Without limiting the generality of the foregoing, the acceptance by Lender of payment of any sum secured by this Mortgage after the due date thereof shall not be a waiver of Lenders right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lenders right to accelerate the maturity of the indebtedness secured by this Mortgage, nor shall Lenders receipt of any awards, proceeds or damages under paragraphs 2.3 and 2.8 hereof operate to cure or waive Borrowers default in payment of sums secured by this Mortgage. 9.9 Modifications and Waivers. This Mortgage cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. 9.10 Notice. Except as applicable law may otherwise require, all notices and other communications shall be in writing and shall be deemed given when delivered by personal service, when sent by overnight courier, or when mailed, by certified or registered mail, postage prepaid, addressed to the address set forth at the beginning of this Mortgage. Any party may at any time change its address for such purposes by delivering or mailing to the other parties hereto as aforesaid a notice of such change. 9.11 Governing Law: Severability; Captions. This Mortgage shall be governed by the laws of the State of New York. If any provision or clause of this Mortgage conflicts with applicable law, such conflicts shall not affect other provisions or clauses hereof which can be given effect without the conflicting provision, and to this end the provisions hereof are declared to be severable. The captions and headings of the paragraphs and articles of this Mortgage are for convenience only and are not to be used to interpret or define the provisions hereof. 9.12 Definitions. As used herein: the term Borrower means the Borrower herein named, together with any subsequent owner of the Property or any part thereof or interest therein; and the term Lender means the Lender herein named, together with any subsequent owner or holder of the Note or any interest therein, including pledgees, assignees and participants. 9.13 Successors and Assigns: Joint and Several Liabilitv: Agents. This Mortgage shall bind and inure to the benefit of the parties hereto a.1d their respective heirs, devisees, legatees, administrators, executors, successors and assigns, subject to the provisions of Article IV hereof. Each person executing this Mortgage as Borrower shall be jointly and severally liable for all obligations of Borrower hereunder. In exercising any rights hereunder or taking actions provided for herein, Lender may act through their respective employees, agents or independent contractors as authorized by Lender. 9.14 Number: Gender. This Mortgage shall be construed so that wherever applicable the use of the singular number shall include the plural number, and vice versa, and the use of any gender shall be applicable to all genders. 9.15 Time. Time is of the essence in connection with all obligations of Borrower herein. 20 |
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9.16 Request for Notice. Borrower hereby requests that a copy of any notice of default and notice of sale hereunder be mailed to it at its address set forth at the beginning of this Mortgage. 9.17 New York Real Property Law 254. The clauses and covenants contained herein which are construed by Section 254 of the New York Real Property Law shall be construed as provided in that section, except as otherwise provided in this Mortgage. The additional clauses and covenants contained herein shall afford rights supplemental to and not exclusive of the rights conferred by the clauses and covenants construed by such Section 254 and shall not impair, modify, alter or defeat such rights notwithstanding that such additional clauses and covenants may relate to the same subject matter or provide for different or additional rights in the same or similar contingencies as the clauses and covenants construed by Section 254. The rights of Lender arising under the clauses and covenants contained in this Mortgage shall be separate, distinct and cumulative, and none of them shall be in exclusion of any other provision, anything herein or otherwise to the contrary notwithstanding. The provisions of subsection 4 of Section 254 of the New York Real Property Law covering the insurance of buildings against loss by fire shall not apply to this Mortgage. In the event of any conflict, inconsistency or ambiguity between the provisions of Section 2.3 hereof and the provisions of subsection 4 of Section 254 of the New York Real Property Law covering the insurance of buildings against loss by fire, the provisions of Section 2.3 hereof shall control. 9.18 Lien Law Covenant. Pursuant to Section 13 of the Lien Law of New York, Borrower shall receive the advances secured hereby and shall hold the right to receive such advances as a trust fund to be applied first for the purpose of paying the cost of any improvement and shall apply such advances first to the payment of the cost of any such improvement on the Property before using any part of the same for any other purpose. 9.18 State Specific Provisions. (a) THIS MORTGAGE DOES NOT COVER REAL PROPERTY PRINCIPALLY IMPROVED OR TO BE IMPROVED BY ONE OR MORE STRUCTURES CONTAINING IN THE AGGREGATE NOT MORE THAN SIX (6) RESIDENTIAL DWELLING UNITS, EACH HAVING ITS OWN SEPARATE COOKING FACILITIES. (b) Notwithstanding anything contained herein to the contrary, the maximum amount of indebtedness secured by this Mortgage at execution or which under any contingency may become secured hereby at any time hereafter is Fourteen Million Four Hundred Thousand Dollars ($14,400,000.00) plus interest thereon, plus amounts expended by Lender after a declaration of default hereunder to maintain the lien of this Mortgage or to protect the property secured by this Mortgage, including, without limitation, amounts in respect of insurance premiums, real estate taxes and litigation expenses to prosecute or defend the rights, remedies and lien of this Mortgage or title to the property secured hereby. BY EXECUTION OF THIS MORTGAGE, BORROWER EXPRESSLY ACKNOWLEDGES: (A) THE RIGHT TO ACCELERATE THE OBLIGATION EVIDENCED BY THE NOTE AND THE POWER GIVEN HEREIN TO LENDER TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE NOTE OR THE PROVISIONS OF THIS MORTGAGE OR BY LAW; (B) THAT THE UNDERSIGNED HAVE READ THIS MORTGAGE AND THAT ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS MORTGAGE AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO BORROWER, AND BORROWER HAS CONSULTED WITH ITS COUNSEL PRIOR TO EXECUTING THIS MORTGAGE; AND (C) THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF BORROWER HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY THE UNDERSIGNED, ON BEHALF OF BORROWER, AS PART OF A BARGAINED-FOR LOAN TRANSACTION AND THAT THIS MORTGAGE IS VALID AND ENFORCEABLE BY LENDER AGAINST BORROWER IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF. 21 |
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IN WITNESS WHEREOF, Borrower and Lender have executed this Mortgage as of the day and year first above written. BORROWER: WU/LH 103 FAIRVIEW PARK L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland . limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President WU/LH 404 FIELDCREST L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland. corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President [Acknowledgements Begin On Following Page] 22 |
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Acknowledgements STATE OF NEW YORK COUNTRY OF NASSAU, SS: On the 1 day of April, 2013,before me personally appeared Louis Sheinker, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the person upon which the individual acted, executed the instrument. My Commission Expires: STATE OF NEW YORK COUNTY OF NASSAU, SS: On the 1 day of April, 2013,before me personally appeared Louis Sheinker, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the person upon which the individual acted, executed the instrument. IN WITNESS MY Hand and Notarial Seal. My Commission Expires: NOTARY PUBLIC (SEAL) Paul A. Cooper Notary Public, State of New York No. 01co4953428 Qualified in Nassau County Commission expires November 20, 2013 23 |
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LENDER: GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation By: Hilda Bryant Name: Hilda Bryant Title: Investment Officer STATE OF VIRGINIA, COUNTY OF HENRICE, SS: On the 1st day of April, 2013, before me personally appeared Hilda Bryant, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in hi capacity, and that by his signature on the instrument, the person upon which the individual acted, executed the instrument. IN WITNESS MY Hand and Notarial Seal. NOTARY PUBLIC My Commission Expires: August 31, 2015 24 |
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EXHIBIT A TO MORTGAGE PROPERTY SCHEDULE LEGAL DESCRIPTION: The property which is the subject of this Mortgage is situated in the County of Westchester, State of New York, and is legally described as follows: ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of Greenburgh, County of Westchester and State of New York being known as Lot 1 on a certain map entitled Illustrative Site Plan of Fairview Corporate Park dated September 15, 1986 and filed in the Office of the County Clerk (Division of Land Records) on September 23, 1986 as Map NO. 22454, being more particularly bounded and described as follows: BEGINNING at a point on the southwesterly side of Fairview Park Drive where the same is intersected by the division line between Lot 1 and property formerly of AT&T Information Systems as shown on the aforesaid Map No. 22454; THENCE along the southwesterly side of Fairview Park Drive and continuing along its southeasterly prolongation, South 55 degrees 24 minutes 00 seconds East 415.070 feet to a point of curve; THENCE along a curve to the right having a radius of 200.00 feet, a central angle of 9 degrees 32 minutes 07 seconds, a distance of 33.284 feet a chord a bearing of, South 50 degrees 37 minutes 56 seconds East, a chord distance of 33.246 feet to a point of tangency; THENCE South 45 degrees 51 minutes 53 seconds East 335.403 feet to the northerly line of land formerly of 835 6th Avenue Realty Corp., now or formerly of Robert Martin Company; THENCE along said land, South 72 degrees 33 minutes 20 seconds West 607.012 feet to the northeasterly line of land formerly of the New York Central Railroad; THENCE northwesterly along said land formerly of the New York Central Railroad along a curve to the left having a radius of 1177.560 feet, a central angle of 20 degrees 46 minutes 49 seconds, a distance of 427.082 feet a chord bearing of, North 38 degrees 08 minutes 44 seconds west; a chord distance of 424.74 feet to the northwesterly corner of Lot l as shown on the aforesaid Filed Map No. 22454. THENCE along the southeasterly line Lot 1, North 34 degrees 36 minutes 00 seconds East 410.950 feet to the southwesterly side of Fairview Park Drive, the point and place of BEGINNING. TOGETHER WITH AND SUBJECT TO the terms, conditions, covenants, restrictions and easements contained in Declaration record in Liber 6784 cp 206 as amended in Liber 6978 cp 260, Liber 7623 cp 350 and Liber 7953 cp 760. TOGETHER with a 60-foot wide Right of Way as per County Clerk Map No. 22454. 25 |
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FOR INFORMATION ONLY: SECTION 7.180 BLOCK 52 LOT 29 103 FAlRVIEW PARK DRlVE ELMSFORD, NY Parcel II ALL that certain plot, piece or parcel of land, situate, lying and being located in the Town of Greenburgh, County of Westchester and State of New York, being Lot 6 as shown on a map entitled lllustrative Site Plan of Fairview Corporate Park dated September 15, 1986 and filed in the Westchester County Clerks Office (Division of Land Records) on September 23, 1986 as Map No. 22454 more particularly bounded and described as follows: BEGINNING from the point of origin formed by the intersection of the northerly side of the existing 50-ft right-of way (Liber 7486 page 267) and the westerly right-of-way of Saw Mill River Road, proceed the following courses and distances: Southerly along a curve to the right of radius 30.00 feet and a central angle of 80°5214, a distance of 42.34 feet and a chord bearing of, South 23° 0640 West, a chord distance of38.91 feet; THENCE to a point of tangency; THENCE South 63°3234 West a distance of 393.37 feet; THENCE to a point of curvature; THENCE Westerly along a curve to the right of radius 450.00 feet and a central angle of 11°4734, a distance of 92.62 feet and a chord bearing of, South 69°2 622 West for 92.45 feet to a Rebar set and being the point of BEGINNING. From said point of beginning, proceeding the following courses and distances: Southwesterly along a curve to the left of radius 50.00 feet and a central angle of 73°0534, a distance of 63.78 feet and a chord bearing of, South 38°4707 West 59.54 feet; THENCE to a point of non-tangent line; THENCE South 79° 5300 West, a distance of 658.07 feet; THENCE North 38° 0000 west a distance of 340.00 feet; THENCE North 52°2043 West a distance of 384.98 THENCE South 89°2340 East, a distance of 194.38 feet; THENCE North 80°1120 East a distance of 304.59 feet; THENCE South 89°0040 East a distance of 100.09 feet; THENCE South 85° 0140 East a distance of 86.83 feet; 26 |
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THENCE North 79°53 00 East a distance of 182.00 feet; THENCE North 80°37 40 East a distance of 69.03 feet; THENCE South 17°1940 East a distance of 460.00 feet; THENCE to a non-tangent point of curvature; THENCE easterly on a curve to the left having a radial bearing of, North 02°3234 East a radius of 450.00 feet and a central angle of 17°1226, a distance of 135.15 feet and a chord bearing of, North 83°5621 East a chord distance of 34.64 feet to the place or point of BEGINNING. FOR INFORMATION ONLY: SECTION 7.60 BLOCK 3 LOT 2 404 FIELDCREST DRIVE ELMSFORD, NY 27 |
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EXHIBIT B TO MORTGAGE Mortgage Schedule Severed Mortgage and Security Agreement in the amount of $16,100,000.00 dated as of the date hereof (Severed Mortgage) by and between WU/LH 103 FAIRVIEW PARK L.L.C., WU/LH 412 FAIRVIEW PARK L.L.C., WU/LH 401 FIELDCREST L.L.C., WU/LH 404 FIELDCREST L.L.C., WU/LH 199 RIDGEWOOD L.L.C., WU/LH 203 RIDGEWOOD L.L.C., WU/LH 36 MIDLAND L.L.C., WU/LH 100-110 MIDLAND L.L.C., and WU/LH 112 MIDLAND L.L.C. and GTJ Management, LLC, each a Delaware limited liability company, having an office c/o 444 Merrick Road, Suite 370, Lynbrook, New York 11563 (Original Mortgagors) and JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.), a Michigan corporation, doing its mortgage business in New York as Manulife Financial, successor by merger to JOHN HANCOCK LIFE INSURANCE COMPANY, a Massachusetts corporation, having its principal place of business at 197 Clarendon Street, Boston, Massachusetyd 02116 (Original Mortgagee), which Severed Mortgage is to be recorded in the Clerks Office immediately prior hereto. Said Severed Mortgage was modified by a certain Partial Release of Mortgage dated of even date herewith by Original Mortgagee (Severed Partial Release) and is intended to be recorded in the Clerks Office immediately after the recording of the Severed Mortgage. Said Severed Mortgage was assigned by a certain Assignment of Mortgage dated of even date herewith from Original Mortgagee to Genworth Life Insurance Company (Severed Mortgage Assignment) and is intended to be recorded in the Clerks Office immediately after the recording of the Severed Partial Release. The recording history of the mortgage from which such Severed Mortgage was derived is set forth below for information purposes oniy: Mortgage, Assignment of Leases and Rents and Security Agreement dated as of February 25, 2008 made by Original Mortgagors and Wu/LH 8 Slater L.L.C. in favor of Mortgagee and recorded in the Clerks Office on April 23, 2008 as Control No. 480860266, as modified and severed by that certain Mortgage Modification and Severance Agreement dated March 8, 2011 by and among Mortgagor, Wu/LH 9 Slater L.L.C. and Mortgagee and recorded in the Clerks Office on March 29, 2011 as Control No. 51074316, and as affected by that certain Partial Release of Mortgage dated of March 8, 2011 and recorded in the Clerks Office on ,2011 as Control No. made by Mortgagee (collectively, the Original Mortgage). Mortgage Tax Paid: $658,450.00 Said Original Mortgage was further modified and severed into two separate and coordinate liens pursuant to that certain Second Mortgage Modification and Severance Agreement dated as of the date hereof between Mortgagor and Mortgagee as follows: (i) one lien in the amount of $30,650,000.00 which continues to be evidenced by such Original Mortgage, as affected by that certain Partial Reiease of Mortgage dated as of the date hereof from mortgagee, and (ii) one lien in the amount of $16,100,000.00 which is evidenced by the Severed :Mortgage, as affected by the Severed Partial Release and the Severed Mortgage Assignment. 28 |
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EXHIBIT C TO MORTGAGE Lessee Date of Lease Federal Express Corporation March 1, 1996 Magnetic Analysis Corporation November 1, 2010 The Reliable Automatic Sprinkler Co., Inc. October 24, 1988 29 |
Exhibit 10.2
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AMENDED AND RESTATED PROMISSORY NOTE $14,400,000.00 April 3, 2013 Elmsford, New York Loan No. 901000543 THIS AMENDED AND RESTATED PROMISSORY NOTE is made by WU/LH 103 FAIRVIEW PARK L.L.C., a Delaware limited liability company, and WU/LH 404 FIELDCREST L.L.C., a Delaware limited liability company (collectively, Borrower), to and for the benefit of GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation (Lender). RECITALS A. Lender is the holder of that certain Mortgage Note more particularly described in Exhibit A hereto (the Original Note), which Original Note was assigned to Lender. B. Borrower confirms that (a) the outstanding aggregate principal balance under the Original Note as of the date hereof is Fourteen Million Four Hundred Thousand Dollars ($14,400,000.00), (b) the full principal amount has been advanced under the Original Note, and (c) there are no offsets, advances, setoffs, defenses or counterclaims against payment of said amount. C. Lender and Borrower have agreed to modify and consolidate the terms of the Original Note, and in connection therewith, to amend, restate and consolidate the Original Note upon the terms and conditions set forth herein. NOW, THEREFORE, the Lender and Borrower each hereby amend and restate in their entirety the Original Note (the Original Note, as amended and restated hereby, and as the same may be amended, restated, modified or extended from time to time, is hereinafter referred to as this Note) as follows: l. Promise to Pay. FOR VALUE RECEIVED, Borrower jointly and severally, promise to pay in lawful money of the United States of America to the order of GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation (Lender), at c/o Bank of America, RESF - Servicing, 900 West Trade Street, Suite 650, NCl-026-06-01, Charlotte, North Carolina 28255, or such other place either within or without the State of North Carolina as Lender may designate in writing from time to time, the principal sum of FOURTEEN MILLION FOUR HUNDRED THOUSAND DOLLARS ($14,400,000.00), with interest from the date hereof on the unpaid principal balance at the rate set forth below. 2. Interest. From the date hereof, interest shall accrue on the unpaid principal balance at the rate of THREE AND TWO-TENTHS PERCENT (3.2%) per annum. 3. Payments and Term. (a) Principal and interest shall be due and payable as follows: (i) A payment of all interest to accrue hereon from the Disbursement Date to and including the last day of the month during which the Disbursement Date occurs shall be due and payable on the Disbursement |
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Date. For purposes of this Note, the Disbursement Date shall be the date on which disbursement of loan proceeds occurs. (ii) Monthly payments of interest only in the sum of THIRTY-EIGHT THOUSAND FOUR HUNDRED DOLLARS ($38,400.00) each shall be due and payable on the first day of each calendar month, commencing on June 1, 2013 and continuing on the first day of each calendar month thereafter to and including May 1, 2014. (iii) Monthly payments of principal and interest in the sum of SIXTY-NINE THOUSAND SEVEN HUNDRED NINETY-THREE DOLLARS AND SEVENTY-SEVEN CENTS ($69,793.77) each shall be due and payable on the first day of each calendar month, commencing on June 1, 2014 and continuing on the first day of each calendar month thereafter to and including the Maturity Date (hereinafter defined), such payments being based upon a twenty-five (25) year amortization period beginning on May 1, 2014. (iv) The entire indebtedness evidenced by this Note, if not sooner paid, shall be due and payable on April 30, 2018 (the Maturity Date). (b) All payments on account of the indebtedness evidenced by this Note shall be first applied to interest, costs and prepayment fees (if any) and then to principal. Interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. 4. Prepayment. This Note may be prepaid in full on a scheduled payment date, upon giving the holder of this Note (Holder) thirty (30) days prior written notice (which notice may be revoked by the Borrower without penalty), by paying, in addition to the outstanding principal balance at the date of prepayment (plus all accrued interest and other sums due under the terms of the Loan Documents, as that term is defined below), a Prepayment Fee. The Prepayment Fee is equal to the greater of: (i) 1% of the principal prepaid (principal outstanding after application of payment due on date of prepayment) at the date of prepayment or (ii) the present value computed on a monthly basis as of the date of prepayment of all future principal and interest payments due under this Note (starting with the first monthly payment due after the prepayment date and including any balloon payments) using the Discount Rate (as defined below) less the principal prepaid. No Prepayment Fee shall be due if this Note is prepaid (a) during the 90 days prior to the Maturity Date or (b) in connection with the application of insurance proceeds or any condemnation award. Except as specifically provided above, Borrower hereby expressly agrees that if, for any reason, a prepayment of any or all of this note is made, whether voluntary or upon or following any acceleration of the maturity date by Lender on account of any Event of Default (as hereinafter defined), including but not limited to any transfer or disposition as prohibited or restricted by the Mortgage (as hereafter defined), then Borrower shall be obligated to pay concurrently therewith, as a prepayment premium, the applicable Prepayment Fee specified above. The prepayment fee shall be due and payable in connection with all such payments, including but not limited to payments made by Borrower or any guarantor after the occurrence of any Event of Default, or payments made from the application of proceeds obtained in connection with any foreclosure or other sale of all or any collateral securing the loan evidenced hereby. Borrower agrees that Lenders agreement to make the loan on the terms and conditions set forth in this Note constitutes adequate consideration, given individual weight by Borrower, for this agreement and acknowledges that, in making the loan on the terms and conditions set forth herein, Lender has given individual weight to the consideration afforded by this agreement. -2- |
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Discount Rate (defined) The Discount Rate (DR) is the rate which when compounded monthly, is equivalent to the Reinvestment Rate (RR) when compounded semi-annually. The DR shall be rounded to the nearest one hundredth of one percent. For example, if the RR equaled 2.335%, then the DR would equal 2.34%. This is further defined as: DR= ((((1+RR/2)^2)^(1/12))-1)*12 Reinvestment Rate (defined) The Reinvestment Rate (RR) is the yield in percent per annum of the Treasury Constant Maturity Nominal 10 (TCM) that equals the remaining Weighted Average Life (WAL) of the Note as published 5 business days prior to the date of prepayment in the Federal Reserve Statistical Release H.15 Selected Interest Rates. If the remaining WAL of this Note does not equal any of the published TCMs then the Reinvestment Rate will be determined by interpolating linearly between two TCMs, one having a maturity as close as possible to, but greater than the remaining WAL of this Note and one having a maturity as close as possible to, but less than the remaining WAL of this Note. The RR shall be rounded to the nearest one hundredth of one percent. For example, if the remaining WAL of the Note on June 24, 2004 was 1.38 years then the RR would equal 2.335%. In this example the RR is arrived at by interpolating the 1-year and 2-year TCMs. On June 24, 2004 the 1-year TCM equaled 2.11% and the 2-year TCM equaled 2.74%. In the event the Federal Reserve Statistical Release H.15 Selected Interest Rates is discontinued or no longer published, the Holder of this Note shall, in its sole discretion, designate some other daily financial or governmental publication of national circulation to determine the Reinvestment Rate which most nearly corresponds to the yield of the TCM. Weighted Average Life (defined) The Weighted Average Life (WAL) of the Note is the average number of years that each dollar of unpaid principal due on the Note remains outstanding. WAL is computed as the weighted-average time to the receipt of all future cash flows, using as the weights the dollar amounts of the principal paydowns. The WAL shall be rounded to the second decimal place (for example: 1.38). For example, for a loan with 17 months remaining and principal payments as detailed in Column B in the chart below, the WAL would equall. 38 years. A B C Month X Principal Payment = Weighted Principal Payment 1 X $4,495 = $4,495 2 X $4,521 = $9,042 3 X $4,547 = $13,641 4 X $4,574 = $18,295 5 X $4,600 = $23,002 6 X $4,627 = $27,763 7 X $4,654 = $32,579 8 X $4,681 = $37,451 9 X $4,709 = $42,378 10 X $4,736 = $47,361 11 X $4,764 = $52,401 12 X $4,792 = $57,498 13 X $4,819 = $62,653 14 X $4,848 = $67,866 15 X $4,876 = $73,138 -3- |
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16 X $4,904 = $78,469 17 X $1,577,601 = $26,819,214 Totals: $1,652,747 $27,467,245 Column C = Column A X Column B WAL =(Total Column C / Total Column B) / 12 Lender shall notify Borrower of the amount and the basis of determination for the Prepayment Fee, which absent manifest error, shall be conclusive and binding upon Lender and Borrower. Borrower expressly understands, acknowledges and agrees that (i) the Prepayment Fee is fair and reasonable and represents a reasonable estimate of the fair compensation for the loss that Lender shall sustain due to the early prepayment of the outstanding principal under the Note, (ii) its agreement to pay the Prepayment Fee is a material inducement to Lender to make the loan, without which inducement Lender would not make the loan and (iii) the Prepayment Fee shall be paid without prejudice to the right of Lender to collect and retain any and all other amounts or charges provided to be paid hereunder or under the other Loan Documents. 5. Events of Default. (a) The occurrence of any one or more of the following shall constitute an Event of Default under this Note: (i) Borrowers failure to make any payment of principal or interest when due hereon, followed by Borrowers failure to make such payment within ten (10) days after written notice thereof given to Borrower by Lender; provided, however, that Lender shall not be obligated to give Borrower written notice prior to exercising its remedies with respect to such default if Lender had previously given Borrower during the previous twelve (12) month period a notice of default for failure to make a payment of principal or interest hereon. (ii) The occurrence of any other Event of Default, as that term is defined in the Mortgage referred to in the Security; Loan Documents section below. (b) Time is of the essence. Upon the occurrence of any Event of Default under this Note, (i) the entire principal balance hereof and all accrued interest shall, at the option of Lender, without notice, bear interest at a rate from time to time equal to five (5) percentage points over what would otherwise be the Note rate (or the maximum rate permitted by applicable law if that is less) from the date of occurrence of the event or circumstance giving rise to the Event of Default until the Event of Default is cured and (ii) the entire principal balance hereof and all accrued interest shall immediately become due and payable at the option of Lender, without notice. Lenders failure to exercise any option hereunder shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. Borrower acknowledges that, during the period of time that any payment of principal, interest or other amount due under this Note is delinquent, Lender will incur costs, expenses and losses attributable to such things as its loss of use of the moneys due and to the adverse impact on its ability to meet its other obligations and to avail itself of other opportunities. Borrower further acknowledges that the exact amount of the costs, expenses and losses would be extremely difficult or impractical to ascertain. Borrower and Lender agree that the increased rate of interest provided for in clause (b)(i) above represents a fair and reasonable estimate of the costs, expenses and losses Lender will incur by reason of any such delinquency in payment. (c) At Lenders option, any written notice of default required to be given to Borrower hereunder may be given in the form of a statutory notice of default under the laws of the State of New York relating to foreclosures of mortgages. -4- |
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6. Late Charges. Borrower acknowledges that, if any monthly installment payment under this Note is not made when due (other than a balloon payment due upon maturity), Lender will as a result thereof incur costs not contemplated by this Note, the exact amount of which would be extremely difficult or impracticable to ascertain. Such costs include without limitation processing and accounting charges. Accordingly, except as may otherwise be mandated by applicable law, Borrower hereby agrees to pay to Lender with respect to each monthly installment payment which is not received by Lender within five (5) days of (and including) the date when due (four (4) days after the due date) a late charge equal to FIVE PERCENT (5%) of the amount of the payment. Borrower and Lender agree that such late charge represents a fair and reasonable estimate of the costs Lender will incur by reason of such late payment. Acceptance of such late charge by Lender shall in no event constitute a waiver of the default with respect to the overdue amount, and shall not prevent Lender from exercising any of the other rights and remedies available to Lender. 7. Security; Loan Documents. This Note is secured, among other documents, by an Amended and Restated Mortgage, Assignment of Rents and Leases, and Security Agreement (the Mortgage) encumbering property (the Property) located in Westchester County, New York. This Note, the Mortgage and all other related instruments and documents are collectively referred to herein as the Loan Documents. 8. Collection Expenses. If there occurs any event or circumstance which is or which with the passage of time, the giving of notice, or both, will constitute an Event of Default, and in connection therewith Lender consults an attorney regarding the enforcement of any of its rights or remedies under this Note or any of the other Loan Documents, or if this Note is placed in the hands of an attorney for collection, or if suit is brought to enforce this Note or any of the other Loan Documents, Borrower promises to pay Lender on demand for all fees, costs and expenses, including reasonable attorneys fees, incurred in connection therewith. Such fees, costs and expenses shall include those incurred with or without suit and those incurred at or in preparation for any trial, appeal or review or in any proceedings under any present or future federal bankruptcy act or state receivership law, and any post-judgment collection proceedings. 9. Waivers. Except as expressly provided in this Note to the contrary, Borrower hereby waives presentment, protest and demand for payment, notice of protest, demand, dishonor and nonpayment of this Note. 10. Joint and Several Liability. The liability of each of the undersigned is joint and several with respect to all obligations hereunder. 11. Limitation of Liability. (a) Borrower is hereby released from all personal liability under the Loan Documents to the extent such release does not operate to invalidate the lien of the Mortgage. In the event of foreclosure of the Mortgage or other enforcement of the collection of the indebtedness evidenced by this Note, Lender agrees, and any holder hereof shall be deemed by acceptance hereof to have agreed, not to take a deficiency judgment against Borrower with respect to said indebtedness. (b) Notwithstanding the provisions of paragraph (a) of this Limitation of Liability section, however, Borrower shall be fully and personally liable to the holder of this Note for all claims, demands, damages, losses, liabilities, fines, penalties, fees, liens, costs and expenses, including attorneys fees, suffered or incurred by Lender on account of or in connection with: -5- |
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(i) Waste committed or knowingly permitted to the Property, or fraud or willful misrepresentation committed by Borrower; (ii) The retention of any rental income or other income arising with respect to the Property collected by Borrower after the occurrence of any event or circumstance which is or which with the passage of time, the giving of notice, or both will constitute an Event of Default and prior to the cure (if any) of such event or circumstance, to the extent that any such retained income is not used to pay capital or operating expenses of the Property; (iii) The retention of security deposits or other deposits made by tenants of the Property which are not paid to tenants when due or transferred to Lender or any other party acquiring the Property at a foreclosure sale or any transfer in lieu of foreclosure; (iv) The removal or disposition by Borrower of any personal property or fixtures encumbered by the Mortgage which are not replaced as required by the Mortgage; (v) The misapplication of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage or destruction to any portion of the Property or any building or buildings located thereon; (vi) Any property taxes or assessments which accrued prior to the earlier of (i) Lender, its nominee or any bidder at a foreclosure sale taking title to the Property or (ii) Borrowers tender to Lender of a deed to the Property in recordable and insurable form; (vii) Borrowers failure to maintain in full force and effect hazard, liability and other insurance coverages as required by the Mortgage; (viii) Borrowers failure to perform any obligations under the Environmental Indemnity executed in connection with this Note, and any other breach of covenant, breach of warranty or misrepresentation by Borrower under the Mortgage, the Environmental Indemnity or any of the other Loan Documents with respect to hazardous, toxic and dangerous wastes, substances and materials. There will be no liability to the Borrower for such wastes, substances and materials which are introduced to the Property subsequent to a permitted transfer of the Property by Borrower or to the Lenders acquisition of title as a result of foreclosure or deed in lieu of foreclosure (the date of such transfer or acquisition being referred to as the Transfer Date); provided, however, the Borrower shall bear the burden of proof that the introduction and initial release of such wastes, substances and materials (i) occurred subsequent to the Transfer Date, (ii) did not occur as a result of any action of Borrower, and (iii) did not occur as a result of continuing migration or release of any such waste, substance or material introduced prior to the Transfer Date in, on, under or near the Property; and (ix) The acceptance by Lender of an assignment of the Original Note, rather than making the loan evidenced hereby without such assignment, including without limitation any loss or cost as a result of a failure to pay any applicable fees or taxes. Nor shall Borrower be entitled to the benefits of the provisions of paragraph (a) of this Limitation of Liability section upon the occurrence of any one or more of the events described in clauses (A), (B) or (C) below (the events described in clauses (A), (B) and (C) below being hereinafter collectively referred to as Full Recourse Events): (A) Without Lenders prior written consent, the Property or any part thereof or interest therein is encumbered by any consensual lien or encumbrance other than that of the Mortgage; provided, however, that, for purposes of this clause (A), the lien or encumbrance of general property taxes or special assessments or of persons supplying labor or materials to or in connection with the Property shall not be deemed to be consensual in nature; or (B) Without Lenders prior written consent, the Property or any part thereof or interest therein is sold (by contract or otherwise), conveyed or otherwise transferred; or -6- |
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(C) The filing of any bankruptcy or insolvency proceeding by Borrower. Upon the occurrence of any one or more Full Recourse Events, the provisions of paragraph (a) of this Limitation of Liability section shall immediately and automatically be of no further force or effect, and Borrower shall thereupon and thereafter have personal liability on this Note without regard to the provisions of paragraph (a) of this Limitation of Liability section. (c) The limitations on personal liability contained in paragraph (a) of this Limitation of Liability section are not intended and shall not be deemed to constitute a forgiveness of the indebtedness evidenced by this Note or a release of the obligation to repay said indebtedness according to the terms and provisions hereof, but shall operate solely to limit the remedies otherwise available to the holder hereof for the enforcement and collection of such indebtedness. (d) As used in this Limitation of Liability section, the term Borrower includes (i) Borrower (and each of them, if more than one) and (ii) all general partners of any Borrower which is a general or limited partnership. The personal liability hereunder of all persons included within the term Borrower shall be joint and several. (e) The provisions of this Limitation of Liability section shall control over any conflicting provisions of this Note, the Mortgage or any other instrument or document executed in connection with the indebtedness evidenced hereby. 12. Limitation on Interest and Loan Charges. Interest, fees and charges collected or to be collected in connection with the indebtedness evidenced hereby shall not exceed the maximum, if any, permitted by any applicable law. If any such law is interpreted so that said interest, fees and/or charges would exceed any such maximum and Borrower is entitled to the benefit of such law, then: (A) such interest, fees and/or charges shall be reduced by the amount necessary to reduce the same to the permitted maximum; and (B) any sums already collected from Borrower which exceeded the permitted maximum will be refunded. Lender may choose to make the refund either by treating the payments, to the extent of the excess, as prepayments of principal or by making a direct payment to Borrower. No prepayment premium shall be assessed on prepayments under this paragraph. The provisions of this paragraph shall control over any inconsistent provision of this Note or the Mortgage or any other document executed in connection with the indebtedness evidenced hereby. 13. Governing Law. This Note shall be construed, enforced and otherwise governed by the laws of the State of New York. 14. Lender. As used herein, the term Lender includes any subsequent holder of or participant in this Note. 15. Seal and Effective Date. This Promissory Note is an instrument executed under seal and is to be considered effective and enforceable as of the date set forth on the first page hereof, independent of the date of actual execution and delivery. 16. Amended and Restated Note. This Note amends and restates, in their entirety, the terms and provisions of the Original Note. This Note does not constitute a novation of the Borrowers obligations under the Original Note, but a consolidation, amendment and restatement of such obligations. -7- |
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17. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, LENDER AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAlVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR OTHERWISE, IN ANY WAY RELATED TO THIS NOTE. BORROWER ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDERS EXTENDING CREDIT TO MAKER THAT THE LENDER WOULD NOT HAVE EXTENDED CREDIT WITHOUT THIS JURY TRIAL WAIVER, THAT BORROWER HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL WAIVER TO UNDERSTAND THE LEGAL EFFECT OF THIS WAIVER, AND NO WAIVER OR LIMITATION OF LENDERS RIGHTS UNDER THIS PARAGRAPH SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON LENDERS BEHALF. Borrower acknowledges that the above paragraph has been expressly bargained for by Lender as part of the loan evidenced hereby and that, but for Borrowers agreement and the agreement of any other person liable for payment hereof thereto, Lender would not have extended the loan for the term and with the interest rate provided herein. [Signatures Begin On Following Page] -8- |
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WU/LH 103 FAIRVIEW PARK L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: Name : Louis Sheinker Title: President WU/LH 404 FIELDCREST L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: Name : Louis Sheinker Title: President |
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EXHIBIT A TO NOTE Note Schedule Mortgage Note dated as of February 25, 2008 made by WU/LH 470 BRIDGEPORT L.L.C., WU/LH 950 BRIDGEPORT L.L.C., WU/LH 12 CASCADE L.L.C., WU/LH 15 EXECUTIVE L.L.C., WU/LH 22 MARSH HILL L.L.C., WU/LH 25 EXECUTIVE L.L.C., WU/LH 269 LAMBERT L.L.C., WU/LH 401 FIELDCREST L.L.C., WU/LH 404 FIELDCREST L.L.C., WU/LH 36 MIDLAND L.L.C., WU/LH 100-110 MIDLAND L.L.C., WU/LH 112 MIDLAND L.L.C., WU/LH 199 RIDGEWOOD L.L.C., WU/LH 203 RIDGEWOOD L.L.C., WU/LH 8 SLATER L.L.C., WU/LH 100 AMERICAN L.L.C., WU/LH 200 AMERICAN L.L.C., WU/LH 300 AMERICAN L.L.C., WU/LH 400 AMERICAN L.L.C. and WU/LH 500 AMERICAN L.L.C., each a Delaware limited liability company in favor of JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.), a Michigan corporation, doing its mortgage business in New York as Manulife Financial, successor by merger to JOHN HANCOCK LIFE INSURANCE COMPANY, a Massachusetts corporation, as (i) modified by Partial Release of Mortgage dated April 3 2013 from JOHN HANCOCK LIFE INSURANCE COMPANY, and (ii) assigned by Allonge to Mortgage Note dated April 3, 2013 from JOHN HANCOCK LIFE INSURANCE COMPANY to GENWORTH LIFE INSURANCE COMPANY. -2- |
Exhibit 10.3
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Loan No. 901000543 UNCONDITIONAL GUARANTY THIS UNCONDITIONAL GUARANTY (this Guaranty) is made this 3rd day of April, 2013, by GTJ REALTY, LP, a Delaware limited partnership (Guarantor) to and for the benefit of GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation (Lender). BACKGROUND WU/LH 103 FAIRVIEW PARK L.L.C., a Delaware limited liability company, and WU/LH 404 FIELDCREST L.L.C., a Delaware limited liability company (collectively, Borrower) have applied to Lender for a loan (the Loan) in the principal amount of FOURTEEN MILLION FOUR HUNDRED THOUSAND DOLLARS ($14,400,000.00). The Loan will be evidenced by an Amended and Restated Promissory Note (the Note) in the Loan amount and will be secured by an Amended and Restated Mortgage, Assignment of Rents and Leases, and Security Agreement (the Mortgage) on real property located in Westchester County, New York, commonly described as 103 Fairview Park Drive and 404 Fieldcrest Drive, Elmsford, New York 10523. An Environmental Indemnity (the Environmental Indemnity) has also been executed by Borrower and Guarantor in connection with the Loan. The Note, the Mortgage and all other documents (other than the Environmental Indemnity) executed in connection with the Loan are hereinafter collectively referred to as the Loan Documents. All moneys due or which may become due under the Loan Documents, or any of them, and the due and punctual performance and observance of all the other terms, covenants and conditions of the Loan Documents, whether according to the present terms of the Loan Documents or at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time, or to any change or changes in the terms, covenants and conditions of the Loan Documents, are hereinafter collectively referred to as the Indebtedness. The Loan is conditioned upon Guarantors execution and delivery to Lender of this Guaranty. NOW, THEREFORE, in consideration of benefits to Guarantor from Borrower, the receipt and sufficiency of which are hereby acknowledged by Guarantor, and to induce Lender to make the Loan to Borrower, Guarantor agrees as follows: 1. Unconditional Guaranty of Payment. (a) Guarantor unconditionally, absolutely and irrevocably guarantees the due and punctual payment of all moneys due or which may become due to Lender by Borrower in connection with the Loan for any and all claims, demands, damages, losses, liabilities, fines, penalties, fees, liens, costs and expenses, including attorneys fees, suffered or itincurred by Lender on account of or in connection with: (i) Waste committed or knowingly permitted to the property encumbered by the Mortgage, or fraud or willful misrepresentation committed by Borrower; (ii) The retention by Borrower of any rental income or other income arising with respect to the property encumbered by the Mortgage collected by Borrower after the occurrence of all Event of Default, as that term is defined in the Note and prior to the cure (if any) of such default, to the extent that any such retained income is not used to pay capital or operating expenses of said property; (iii) The retention of security deposits or other deposits made by tenants of the property encumbered by the Mortgage which are not paid to tenants when due or transferred to Lender or any other party acquiring the property at a foreclosure sale or any transfer in lieu of foreclosure; |
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(iv) The removal or disposition by Borrower of any personal property or fixtures encumbered by the Mortgage which are not replaced as required by the Mortgage; (v) The misapplication by Borrower of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage or destruction to any portion of the property encumbered by the Mortgage or any building or buildings located thereon; (vi) Any property taxes or assessments which accrue prior to the earlier of (i) Lender, its nominee or any bidder at a foreclosure sale taking title to the property encumbered by the Mortgage or (ii) Borrowers tender to Lender of a deed to the property encumbered by the Mortgage in recordable and insurable form; (vii) Borrowers failure to maintain in full force and effect hazard, liability and other insurance coverages as required by the Mortgage; (viii) Any breach of covenant, breach of warranty or misrepresentation by Borrower under the Mortgage or any of the other Loan Documents with respect to hazardous, toxic and dangerous wastes, substances and materials; and (ix) The acceptance by Lender of an assignment of the Original Note (as that term is defined in the Note), rather than making the Loan without such assignment, including without limitation any loss or cost as a result of a failure to pay any applicable fees or taxes. (b) Upon and at all times following the occurrence of any Full Recourse Event (as defined below), Guarantor unconditionally, absolutely and irrevocably fully guarantees the due and punctual payment of the principal and interest of the Note and the due and punctual payment, performance and observance of all other Indebtedness. (c) As used herein, the term Full Recourse Event means: (i) The encumbrance of the property encumbered by the Mortgage or any part thereof or interest therein by any consensual lien or encumbrance other than that of the Mortgage, without Lenders prior written consent; provided, however, that, for purposes of this clause (i), the lien or encumbrance of general property taxes or special assessments or of persons supplying labor or materials to or in connection with said property shall not be deemed to be consensual in nature; or (ii) The sale (by contract or otherwise), conveyance or other transfer of the property encumbered by the Mortgage or any part thereof or interest therein, without Lenders prior written consent; or (iii) The filing of any bankruptcy or insolvency proceeding by Borrower. This is a guaranty of payment, not of collection. If the amount outstanding under the Loan or any other moneys due or which may become due under the Note or any of the other Loan Documents is determined by a court of competent jurisdiction, that determination shall be conclusive and binding on Guarantor, regardless of whether Guarantor was a party to the proceeding in which such determination was made or not. 2. Acknowledgements. Representations And Warranties. (a) Guarantor acknowledges and agrees that: (i) Guarantor either has reviewed, or has had an opportunity to review, the Loan Documents, and is otherwise fully familiar with the terms of the Loan; (ii) This Guaranty constitutes an obligation to Lender which is separate and distinct from the obligation of Borrower to Lender under the Loan Documents; -2- |
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(iii) Guarantor is signing this Guaranty as an inducement to Lender to make the Loan, and further acknowledges that Lender would not make the Loan without this Guaranty. (b) Guarantor represents and warrants to Lender as follows: (i) Guarantor is either financially interested in Borrower or will receive other benefits from Borrower as a result of this Guaranty; and (ii) If Guarantor is married, this Guaranty is made on behalf of and shall bind Guarantor and his or her marital community. 3. Waivers By Guarantor And Rights Of Lender. Guarantor agrees that Lender may deal exclusively with Borrower in all matters relating to the Loan without notice to or the approval of Guarantor. It is intended that, subject to the limitations of paragraph 1 above, Guarantor shall remain unconditionally, absolutely and irrevocably liable hereunder for payment and performance of the Indebtedness regardless of any act or omission which might otherwise directly or indirectly result, by operation of law or otherwise, in the discharge or release in whole or in part of Borrower, Guarantor or any other person, or the discharge, release or impairment of any collateral (the Collateral) now or hereafter held as security for any of the obligations under the Loan Documents or this Guaranty. Without limiting the generality of the foregoing, Guarantor hereby waives the following and agrees that Lender may do or fail to do any of the following one or more times, without notice to or the approval of Guarantor, all without diminishing, altering or otherwise affecting the unconditional, absolute and irrevocable liability of Guarantor hereunder: (a) Guarantor waives notice of Lenders acceptance of this Guaranty; (b) Guarantor waives notice of Lenders advances of Loan funds, extension of credit to Borrower and any payment of obligations of Borrower; (c) Guarantor waives notice of default under the Loan Documents; (d) Lender may extend, renew, accelerate or otherwise change the time for payment and performance of any of Borrowers obligations under the Loan Documents and may otherwise modify and change the terms, conditions and covenants of the Loan Documents, including without limitation increase or decrease of the rate of interest on the Loan, provided, however, that nothing in this clause (d) is intended to grant Lender the right to make any such modification or change without the approval of Borrower unless Lender has the right to do so without Borrowers approval under the Loan Documents or as a matter of law; (e) Lender may release Borrower, any Guarantor or any other person now or hereafter having any liability under the Loan Documents; (f) Lender may take and hold Collateral for payment and performance of the Indebtedness, and may release, surrender, substitute, take additional, or exchange, any such Collateral Lender now holds or may later acquire; (g) Lender does not have to marshal assets and may direct the order or manner of sale of the Collateral as Lender in its discretion may determine; (h) Lender may apply any money or Collateral to the repayment of any obligations due to Lender under the Loan Documents in any order Lender in its discretion may determine; (i) Lender may forbear from pursuing Borrower, any other guarantor or any other person, or forbear from foreclosing or otherwise realizing upon any Collateral or other guaranty; (j) Lender may impair or fail to perfect a security interest in any Collateral; -3- |
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(k) Lender may sell Collateral in any manner Lender in its discretion may determine, without notice to Guarantor and whether or not such sale is commercially reasonable; (l) Guarantor waives any defense arising out of the absence, impairment, or loss of any or all rights of recourse, reimbursement, contribution, subrogation or any other right or remedy of Guarantor against Borrower, any other guarantor, or any other person to recover amounts which Guarantor is obligated to pay under this Guaranty; (m) Guarantor waives any defense based upon election of remedies and any anti-deficiency statute, it being intended that this Guaranty shall survive any and all realization upon Collateral. Such waiver shall include without limitation any defense that a foreclosure of Collateral, whether judicial or nonjudicial, discharged Guarantors obligations under this Guaranty; (n) Guarantor waives any defense arising by reason of any invalidity, ineffectiveness or unenforceability of all or any portion of the Loan Documents or on the basis of any other defense (other than full payment in cash of any monetary obligation or full performance of any other obligation) available to Borrower, any other guarantor or any other person; (o) Guarantor waives any defense arising out of lack of diligence or out of delay in enforcement, collection or realization under the Loan Documents; (p) Guarantor waives demand for payment, demand for performance, notice of non-payment, notice of non-performance, presentment, protest, notice of dishonor, and indulgences and notices of every other kind; and (q) Guarantor hereby expressly waives: (i) any defense arising because of Lenders election, in any proceeding instituted under the Federal Bankruptcy Code, of any application of Section 1111(b)(2) of the Federal Bankruptcy Code; and (ii) any defense based on any borrowing or grant of a security interest under Section 364 of the Federal Bankruptcy Code. 4. Lenders Right Not To Proceed Against Borrower. Other Person Or Collateral; Lenders Remedies. This Guaranty may be enforced against Guarantor without attempting to collect (or without exhausting its efforts to collect) from Borrower, any other guarantor or any other person who may be liable for Borrowers obligations, and without attempting to enforce (or exhausting its efforts to enforce) Lenders rights in any Collateral. Lender may exercise its remedies available under this Guaranty and the Loan Documents and available at law and in equity in such order as Lender in its discretion may determine. Lender may join Guarantor in any suit in connection with the Loan Documents or may proceed against Guarantor in a separate action. If suit, sale, foreclosure or other remedy is availed of, only the net proceeds therefrom, after deducting all charges and expenses of any kind and nature whatsoever, shall be applied to the reduction of the Indebtedness, and Lender shall not be required to institute or prosecute proceedings to recover any deficiency as a condition of payment under or enforcement of this Guaranty. At any sale of Collateral, Lender may, at its discretion, purchase all or any part of such Collateral and apply against the amount bid therefor an equal amount of the Indebtedness. 5. Bankruptcy And Assignment Of Rights. Guarantors obligation to make payment under the terms of this Guaranty shall not be impaired, modified, changed, released or limited in any manner by any impairment, modification, change, release, defense or limitation of the liability of Borrower or of a receiver, trustee, debtor in possession or estate under any bankruptcy, receivership or insolvency proceeding. If any payment made by Borrower is reclaimed in a bankruptcy or receivership proceeding, Guarantor shall, subject to the limitations of paragraph 1 above, pay to Lender the dollar amount of the amount reclaimed. Guarantor hereby assigns to Lender all rights Guarantor may have in any proceeding involving Borrower under any federal bankruptcy act or state receivership proceedings, whether or not such rights relate to this Guaranty. Such assignment shall not diminish, alter or otherwise affect Guarantors liability under this Guaranty. -4- |
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6. Guarantors Duty To Keep Informed Of Borrowers And Others Financial Condition. Guarantor is now adequately informed of Borrowers financial condition. Guarantor has established adequate means of obtaining, and will obtain from Borrower in the future, all financial and other information regarding Borrower, any other guarantor, any other person and the Loan as is deemed appropriate by Guarantor. Lender shall have no obligation, now or in the future, to provide any such information to Guarantor. 7. Survival of Certain Indemnities and Obligations. Guarantor acknowledges that, to the extent permitted by law, certain obligations of Borrower under the Loan Documents, including without limitation indemnity obligations relating to hazardous substances, shall survive payment of the Indebtedness and foreclosure of Collateral. Guarantor covenants and agrees that, to the extent permitted by law and subject to the limitations of paragraph 1 above, Guarantors guaranty of such obligations of Borrower shall also survive payment of the Indebtedness and foreclosure of Collateral. 8. Waiver Of Right Of Subrogation. Until the Indebtedness shall have been paid and performed in full, Guarantor shall have no right of subrogation, and Guarantor waives any right to enforce any remedy which Lender now has or may hereafter have against Borrower, any other guarantor or any other person, and waives any benefit of, and any right to participate in, any of the Collateral. 9. Subordination Of Debt. Any debt of Borrower now or hereafter held by Guarantor is hereby subordinated to the Indebtedness, and such debt, if Lender so requests, shall be collected, enforced and received by Guarantor as trustee for Lender and be paid over to Lender on account of the Indebtedness, but without reduction or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty. 10. Collection Expenses. Guarantor agrees to reimburse Lender on demand for all reasonable legal fees and other costs and expenses incurred by Lender in collecting, enforcing or defending this Guaranty, together with interest thereon from date of disbursement at the default rate of interest stated in the Note. Such fees, costs and expenses shall include those incurred with or without suit and those incurred at or in preparation for any trial, appeal or review, or in any proceedings under any present or future federal bankruptcy act or state receivership law and any post-judgment collection proceedings. 11. Payment Of Loan: Effect Of Bankruptcy. Except as otherwise provided in paragraphs 3 and 7 above, this Guaranty shall terminate upon payment and performance in full of the Indebtedness; provided, however, that, subject to the limitations of paragraph 1 above, it shall be automatically reinstated if any payment is reclaimed in a bankruptcy or receivership proceeding, until Guarantor pays Lender the amount reclaimed or the amount is otherwise paid to Lender and is not subject to further reclamation. 12. Financial Statements: Credit Reports. Guarantor will furnish to Lender, within twenty (20) days after Lenders request therefor, a complete and current financial statement, in reasonable detail and certified as correct by Guarantor. Guarantor hereby irrevocably authorizes Lender to obtain credit reports on Guarantor on one or more occasions during the term of the Loan. 13. Binding Effect. This Guaranty shall be binding upon and enforceable against Guarantor, Guarantors legal representatives, successors and assigns, and shall inure to the benefit of and may be enforced by Lender and Lenders successors and assigns. 14. Assignment. Lender may assign the Loan Documents and this Guaranty, or any of them, in whole or in part, and may grant participations therein, without notice to Guarantor and without affecting Guarantors liability under this Guaranty. 15. Construction. Unless some other meaning and intent is apparent from the context, the plural shall include the singular and vice versa, and masculine, feminine and neuter words shall be used interchangeably. 16. Governing Law: Jurisdiction. This Guaranty shall be governed by and construed according to the laws of the State of New York. Guarantor consents to the jurisdiction of the courts of the State of New York. -5- |
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17. Joint And Several Liability; Independent Obligations. The obligations under this Guaranty of all persons included within the term Guarantor are joint and several. The obligations of each Guarantor are independent of those of Borrower, any other guarantor and any other person, and a separate action or actions may be brought and prosecuted against Guarantor, or any of them, whether action is brought against any other Guarantor, Borrower or any other person. 18. Entire Agreement: Modifications. This agreement constitutes the entire understanding between Lender and Guarantor and no course of prior dealing between the parties, no usage of trade, and no parol or extrinsic evidence of any nature shall be used to supplement or modify the terms of this Guaranty. This Guaranty may be changed, modified or supplemented only through a writing signed by Guarantor and Lender. 19. Invalid Provisions. If any provision of this Guaranty is invalid, illegal or unenforceable, such provision shall be considered severed from the rest of this Guaranty and the remaining provisions shall continue in full force and effect as if the invalid provision had not been included. 20. Seal And Effective Date. This Guaranty is an instrument executed under seal and is to be considered effective and enforceable as of the date set forth on the first page hereof, independent of the date of actual execution. IN WITNESS WHEREOF, Guarantor hereby executes this Guaranty as of the day and year first above written. GUARANTOR: GTJ REALTY, LP, a Delaware limited partnership By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President -6- |
Exhibit 10.4
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Loan No. 901000543 ENVIRONMENTAL INDEMNITY THIS ENVIRONMENTAL INDEMNITY (this Indemnity) is given this 3rd day of April, 2013, by WU/LH 103 FAIRV1EW PARK L.L.C., a Delaware limited liability company, an;d WUILH 404 FlELDCREST L.L.C., a Delaware limited liability company (collectively, Borrower), and GTJ REALTY, LP, a Delaware limited partnership (Guarantor), to and for the benefit of GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation (Lender). Borrower and Guarantor are individually and collectively referred to in this Indemnity as Indemnitor. RECITALS Borrower has applied to Lender for a loan (Loan) in the amount of FOURTEEN MILLION FOUR HUNDRED THOUSAND DOLLARS ($14,400,000.00). The Loan will be evidenced by an Amended and Restated Promissory Note (Note) and secured by an Amended and Restated Mortgage, Assignment of Rents and Leases, and Security Agreement (Mortgage) on real property (Property) located in Westchester County, New York, and legally described on Exhibit A. Lender would not be willing to make the Loan without this Indemnity. NOW, THEREFORE, in consideration of the financial benefits to Indemnitor from the Loan, the receipt and sufficiency of which are hereby acknowledged by Indemnitor, and to induce Lender to make the Loan, Indemnitor agrees as follows: 1. Indemnity. To the fullest extent permitted by applicable law, Indemnitor shall defend, protect, hold harmless, and indemnify Lender and its affiliates and their shareholders, directors, officers, employees, attorneys, and agents from and against any and all claims, demands, penalties, fees, liens, damages, losses, expenses, and liabilities arising out of or in any way connected with any alleged or actual past or future presence on, under or about the Property of any Hazardous Substance from any cause whatsoever (collectively Liabilities); it being intended that Indemnitor shall be strictly and absolutely liable without regard to any fault by Indemnitor other than Liabilities directly caused by the willful conduct or gross negligence of Lender or its agents or employees. Hazardous Substance shall mean any hazardous, toxic or dangerous substance, waste or material which is or becomes regulated under any federal, state or local statute, ordinance, rule, regulation or other law now or hereafter in effect pertaining to environmental protection, contamination or clean up, including without limitation any substance, waste or material which now or hereafter is (A) designated as a hazardous substance under or pursuant to the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), (B) defined as a hazardous waste under or pursuant to the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), (C) defined as a hazardous substance in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq.), or (D) defined or listed as industrial-commercial waste or waste under N.Y. ENVTL. CONSERV. §27-303, solid waste under N.Y. ENVTL. CONSERV. §27-501 and §27-0701, hazardous waste and waste under N.Y. ENVTL. CONSERV. §27-0900, industrial hazardous waste under N.Y. ENVTL. CONSERV. §27- 1101, and hazardous waste or waste under N.Y. ENVTL. CONSERV. §27-1301. Notwithstanding the foregoing, this Indemnity shall not relate to any Hazardous Substance which is introduced to the Property (A) by Lender, its agents or employees or (B) subsequent to (x) the date of Indemnitors record conveyance of title to the Property, provided that such conveyance is effected upon written consent of Lender and otherwise in compliance with Article IV of the Mortgage, or (y) the date Lender or any third-party purchaser acquires title to the Property as a result of foreclosure or deed in lieu of foreclosure (any such date being hereinafter referred to as the Transfer Date); provided, however, that Indemnitor shall bear the burden of proof that the introduction and initial release of such Hazardous Substance (i) occurred subsequent to the Transfer Date, (ii) did not occur as a result of any action of Indemnitor, and (iii) did not occur as a result of continuing migration or release of any Hazardous Substance introduced prior to the Transfer Date in, on, under or near the Property. |
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2. Payment; Third Party Claims. All amounts payable under this Indemnity shall be paid within twenty (20) days after Lenders delivery of written demand to Indemnitor. Any amount not paid when due shall thereafter bear interest at ten percent (10%) per annum (or the maximum rate permitted by applicable law if that is less). In the event of any disputed third party claim subject to this Indemnity, Lender shall have the right to choose its own legal counsel (at Indemnitors expense) and make all decisions relating to the dispute, including without limitation the litigation strategy and the terms of any settlement. 3. Default; Remedies. The occurrence of any of the following shall constitute an Event of Default under this Indemnity: (a) any breach by Indemnitor of any provision of this Indemnity; or (b) any other failure by Indemnitor to perform when due any obligation on its part to be performed hereunder. Upon the occurrence of a default by Indemnitor under this Indemnity, Lender may, in its sole discretion, (i) declare the same to constitute an event of default under the Mortgage and exercise any and all remedies provided therein for an event of default, (ii) bring a court action to enforce the provisions of this Indemnity, and/or (iii) exercise any other right or remedy available to Lender under any other document or instrument now or hereafter existing or at law or in equity. 4. Subrogation of Indemnity Rights. If Indemnitor fails to perform any of its obligations under this Indemnity, Lender shall be subrogated to any rights Indemnitor may have against any former, present or future owners, tenants or other occupants or users of all or any part of the Property, relating to the matters covered by this Indemnity. 5. Recourse. Indemnitor shall be fully and personally liable for all of Indemnitors obligations under this Indemnity to the full extent of such liability and without regard to the original principal balance of the Loan and shall not be subject to any non-recourse or other limitation of liability provision of the Note or the Mortgage. 6. Independent Obligations; Survival. Indemnitors obligations under this Indemnity are unconditional, unsecured, and separate, independent and distinct from the obligations evidenced by the Note and secured by the Mortgage. No repayment of the Note or discharge, reconveyance or foreclosure of the Mortgage or any other termination of the lien thereof shall terminate or otherwise affect Indemnitors obligations under this Indemnity, which obligations shall, to the fullest extent permitted by applicable law, survive repayment of the Note and reconveyance of the Mortgage, and any sale or other transfer of the Property, whether by sale, foreclosure, deed in lieu of foreclosure, or otherwise. 7. Fees and Expenses. Indemnitor shall reimburse Lender within twenty (20) days of written demand for all reasonable legal fees and other costs and expenses incurred in enforcing this Indemnity, together with interest thereon from the date due until paid at ten percent (10%) per annum (or the maximum rate permitted by applicable law if that is less). Such fees, costs and expenses shall include those incurred with or without suit and in any appeal, any proceedings under any present or future federal bankruptcy act or state receivership, and any post-judgment collection proceedings. 8. Miscellaneous. The obligations under this Indemnity of each Indemnitor shall be joint and several. This Indemnity shall be binding upon Indemnitor and its heirs, representatives, successors and assigns and shall inure to the benefit of Lender and its successors and assigns. This Indemnity shall be governed under the laws of the State of New York. Lenders rights and remedies under this Indemnity shall be in addition to any other rights and remedies available to Lender under any other document or instrument now or hereafter existing or at law or in equity. The failure of Lender to promptly enforce any right or remedy under this Indemnity shall not constitute a waiver thereof and shall not affect or impair the liability of Indemnitor. If any provision of this Indemnity is invalid, illegal or unenforceable, such provision shall be considered severed from the rest of this Indemnity and the remaining provisions shall continue in full force and effect as if the invalid provision had not been included. Any notice to Indemnitor under this Indemnity shall be to the address given below, or such other address as may be designated by Indemnitor in writing, and shall be deemed to have been given on the date delivered in the case of personal delivery or, if mailed, three (3) days after the postmark thereof. Any amendment, waiver, discharge or termination of this Indemnity or any provision hereof must be in writing and signed by the party against whom enforcement of the amendment, waiver, discharge or termination is sought. -2- |
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IN WITNESS WHEREOF, Indemnitor hereby executes this Indemnity as of the day and year first above written. INDEMNITOR: WU/LH 103 FAIRVIEW PARK L.L.C., a Delaware limited liability company ,. By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President WU/LH 404 FIELDCREST L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President -3- |
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GTJ REALTY, LP, a Delaware limited partnership By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland Corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President Address for each Indemnitor: 60 Hempstead Avenue, Suite 718 West Hempstead, New York 11552 -4- |
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EXHIBIT A The property referred to in this Environmental Indemnity is situated in the County of Westchester, State of New York, and is legally described as follows: Parcel I ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of Greenburgh, County of Westchester and State of New York being known as Lot 1 on a certain map entitled Illustrative Site Plan of Fairview Corporate Park dated September 15, 1986 and fied in the Office of the County Clerk (Division of Land Records) on September 23, 1986 as Map NO. 22454, being more particularly bounded and described as follows: BEGINNING at a point on the southwesterly side of Fairview Park Drive where the same is intersected by the division line between Lot 1 and property formerly of AT&T Information Systems as shown on the aforesaid Map No. 22454; THENCE along the southwesterly side of Fairview Park Drive and continuing along its southeasterly prolongation, South 55 degrees 24 minutes 00 seconds East 415.070 feet to a point of curve; THENCE along a curve to the right having a radius of 200.00 feet, a central angle of 9 degrees 32 minutes 07 seconds, a distance of 33.284 feet a chord a bearing of, South 50 degrees 37 minutes 56 seconds East, a chord distance of 33.246 feet to a point of tangency; THENCE South 45 degrees 51 minutes 53 seconds East 335.403 feet to the northerly line of land formerly of 835 6th Avenue Realty Corp., now or formerly of Robert Martin Company; THENCE along said land, South 72 degrees 33 minutes 20 seconds West 607.012 feet to the northeasterly line of land formerly of the New York Central Railroad; THENCE northwesterly along said land formerly of the New York Central Railroad along a curve to the left having a radius of 1177.560 feet, a central angle of 20 degrees 46 minutes 49 seconds, a distance of 427.082 feet a chord bearing of, North 38 degrees 08 minutes 44 seconds west; a chord distance of 424.74 feet to the northwesterly corner of Lot 1 as shown on the aforesaid Filed Map No. 22454. THENCE along the southeasterly line Lot 1, North 34 degrees 36 minutes 00 seconds East 410.950 feet to the southwesterly side of Fairview Park Drive, the point and place of BEGINNING. TOGETHER WITH AND SUBJECT TO the terms, conditions, covenants, restrictions and easements contained in Declaration record in Liber 6784 cp 206 as amended in Liber 6978 cp 260, Liber 7623 cp 350 and Liber 7953 cp 760. TOGETHER with a 60-foot wide Right of Way as per County Clerk Map No. 22454. FOR INFORMATION ONLY: SECTION 7.180 BLOCK 52 LOT 29 103 FAIRVlEW PAR.K DRIVE ELMSFORD, NY -5- |
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Parcel II ALL that certain plot, piece or parcel of land, situate, lying and being located in the Town of Greenburgh, County of Westchester and State of New York, being Lot 6 as shown on a map entitled Illustrative Site Plan of Fairview Corporate Park dated September 15, 1986 and filed in the Westchester County Clerks Office (Division of Land Records) on September 23, 1986 as Map No. 22454 more particularly bounded and described as follows: BEGINNING from the point of origin formed by the intersection of the northerly side of the existing 50-ft right-of-way (Liber 7486 page 267) and the westerly right-of-way of Saw Mill River Road, proceed the following courses and distances: Southerly along a curve to the right of radius 30.00 feet and a central angle of 80°5214, a distance of 42.34 feet and a chord bearing of, South 23°0640 West, a chord distance of 38.91 feet; THENCE to a point of tangency; THENCE South 63°3234 West a distance of 393.37 feet; THENCE to a point of curvature; THENCE Westerly along a curve to the right of radius 450.00 feet and a central angle of 11°4734, a distance of 92.62 feet and a chord bearing of, South 69°2622 West for 92.45 feet to a Rebar set and being the point BEGINNING. From said point of beginning, proceeding the following courses and distances: Southwesterly along a curve to the left of radius 50.00 feet and a central angle of730534, a distance of 63.78 feet and a chord bearing of, South 38°4707 West 59.54 feet; THENCE to a point of non-tangent line; THENCE South 79° 5300 West, a distance of 658.07 feet; THENCE North 38°0000 west a distance of 340.00 feet; THENCE North 52°2043 West a distance of 384.98 feet; THENCE South 89°2340 East, a distance of 194.38 feet; THENCE North 80°1120 East a distance of 304.59 feet; THENCE South 89°0040 East a distance of 100.09 feet; THENCE South 85° 0140 East a distance of 86.83 feet; THENCE North 79°53 00 East a distance of 182.00 feet; THENCE North 80°37 40 East a distance of 69.03 feet; THENCE South 17°1940 East a distance of 460.00 feet; THENCE to a non-tangent point of curvature; THENCE easterly on a curve to the left having a radial bearing of, -6- |
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North 02°3234 East a radius of 450.00 feet and a central angle of 17°1226, a distance of 135.15 feet and a chord bearing of, North 83°5621 East a chord distance of 134.64 feet to the place or point of BEGINNING. FOR INFORMATION ONLY: SECTION 7.60 BLOCK 3 LOT 2 404 FIELDCREST DRIVE ELMSFORD, NY -7- |
Exhibit 10.5
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Exhibit 99.7 Prepared by, Recording Requested By and When Recorded Return To: Genworth Life Insurance Company c/o Bank of America RESF Servicing 900 West Trade Street Suite 650 NC1-026-06-01 Charlotte, North Carolina 28255 Loan No. 901000544 MORTGAGE, ASSIGNMENT OF RENTS ANB LEASES, ANB SECURITY AGREEMENT (ALSO CONSTITUTING A FIXTURE FILING) THIS MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, AND SECURITY AGREEMENT (this Mortgage) is made this [ILLEGIBLE] day of April , 2013, between WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company, and WU/LH 500 AMERICAN L.L.C., a Delaware limited liability company, as Mortgagor (collectively, Borrower), whose address is 60 Hempstead Avenue, Suite 718, West Hempstead, New York 11552; and GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation, as Mortgagee (Lender), whose address is c/o Bank of America, RESF - Servicing, 900 West Trade Street, Suite 650, NC1-026-06-01, Charlotte, North Carolina 28255. For purposes of Article 9 of the Uniform Commercial Code, this Mortgage constitutes a security agreement and financing statement with Borrower being the Debtor and Lender being the Secured Party. This Mortgage also constitutes a financing statement filed as a fixture filing pursuant to Article 9 of the Uniform Commercial Code. Lender is making a loan (the Loan) in the principal amount of FIFTEEN MILLION ONE HUNDRED THOUSAND DOLLARS ($15,100,000.00), such amount being the maximum principal amount of indebtedness secured by this Mortgage, to be secured by that certain real property (the Realty) described in Exhibit A attached hereto. The Loan, if not sooner paid, is due and payable in full on April 30, 2018. Pursuant to N.J.S.A § 46:9-4, as amended, Borrower will pay the indebtedness as hereinbefore provided. In consideration of the Loan, Borrower hereby irrevocably MORTGAGES to Lender all of Borrowers estate, rights, title, claim, interest and demand, either in law or in equity, of, in and to the following property, whether the same be now owned or hereafter acquired (me Property): (a) The Realty and all rights to the land lying in alleys, streets and roads adjoining or abutting the Realty; (b) All buildings, improvements and tenements now or hereafter located on the Realty; (c) All fixtures and articles of property now or hereafter attached to, or used or adapted for use in the ownership, development, operation or maintenance of, the buildings, improvements and Realty (whether such items are leased, owned or subject to any title retaining or security instrument, or otherwise used or possessed), including without limitation all heating, cooling, air-conditioning, ventilating, refrigerating, plumbing, generating, power, lighting, laundry, maintenance, incinerating, lifting, cleaning, fire prevention and extinguishing, security and access control, cooking, gas, electric and communication fixtures, equipment and apparatus, all engines, motors, conduits, pipes, pumps, tanks, ducts, compressors, boilers, water heaters and furnaces, all ranges, stoves, disposers, refrigerators and other appliances, all escalators and elevators, all baths and sinks, all cabinets, partitions, mantels, built-in mirrors, window shades, blinds, screens, awnings, storm doors, windows and sash, all carpeting, underpadding, floor covering, panelling and draperies, all furnishings of public spaces, halls and lobbies, and all shrubbery and plants; all of which items shall be deemed part of the real property and not severable wholly or in part |
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without material injury to the freehold; provided, however, that personal property and trade fixtures owned or supplied by tenants of the Property with the right of removal at the termination of their tenancies shall not be included within the scope of this paragraph; (d) All easements, access, air and development rights, minerals and oil, gas and other hydrocarbon substances, royalties, water, water rights and water stock, and all other rights, hereditaments, privileges, permits, licenses, franchises and appurtenances now or hereafter belonging or in any way appertaining to the Realty; (e) All of the rents, revenues, issues, profits and income of the Property, and all present and future leases and other agreements for the occupancy or use of all or any part of the Realty, including without limitation all cash or security deposits, advance rentals and deposits or payments of similar nature, and all guaranties of tenants or occupants performances under such leases and agreements; SUBJECT, HOWEVER, to the assignment of rents and other property to Lender herein contained; (f) All general intangibles relating to the development or use of the Property, including without limitation all permits, licenses and franchises, all names under or by which the Property may at any time be operated or known, and all rights to carry on business under any such names or any variant thereof, and all trademarks, trade names, logos and good will in any way relating to the Property; (g) All water stock relating to the Property, all shares of stock or other evidence of ownership of any part of the Property that is owned by Borrower in common with others, and all documents of membership in any owners or members association or similar group having responsibility for managing or operating any part of the Property; and (h) All products and proceeds of all of the foregoing; TO SECURE THE FOLLOWING (collectively the Secured Obligations): (1) Payment of the sum of FIFTEEN MILLION ONE HUNDRED THOUSAND DOLLARS ($15,100,000.00), with interest thereon, according to the terms and provisions of a promissory note of even date herewith, payable to Lender, or order, and made by Borrower, and all modifications, extensions, renewals and replacements thereof (collectively the Note); (2) Payment of all sums advanced to protect the security of this Mortgage, together with interest thereon as herein provided; (3) Payment of all other sums which are or which may become owing under the Loan Documents; (4) Performance of all of Borrowers other obligations under the Loan Documents; and (5) Payment of the principal and interest on all other future loans or advances made by Lender to Borrower when the promissory note evidencing the loan or advance specifically states that it is secured by this Mortgage, including all modifications, extensions, renewals, and replacements of any such future loan or advance. As used herein, the term Loan Documents means the Note, this Mortgage, any loan agreement and Uniform Commercial Code Financing Statement executed in connection herewith, and any other instrument or document evidencing or securing the Loan or otherwise executed in connection therewith (except the Environmental Indemnity), together with all modifications, extensions, renewals and replacements thereof. -2- |
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BORROWER HEREBY REPRESENTS, WARRANTS, COVENANTS AND AGREES AS FOLLOWS: ARTICLE I TITLE AND USE 1.1 Warranty of Title. Borrower represents and warrants to Lender that: (a) Except as may otherwise be expressly stated in this Mortgage, the Borrower warrants the title to the Property, as defined in N.J.S.A. § 46:9-2, as amended, and Borrower has good and marketable title in fee simple to such of the Property as is real property and is the sole and absolute owner of all other Property; (b) the Property is free from liens, encumbrances, exceptions or other charges of any kind whatsoever other than non-delinquent installments of property taxes and assessments, general and special, those items, if any, listed as exceptions on the title insurance policy issued to and approved by Lender in connection with the Loan, and any other liens, encumbrances, exceptions or charges expressly permitted by the terms of this Mortgage (collectively, Permitted Exceptions), and no others, whether superior or inferior to this Mortgage, will be created or suffered to be created by Borrower during the life of this Mortgage without the prior written consent of Lender; (c) no default on the part of Borrower or, to Borrowers actual knowledge, any other person exists under any of the Permitted Exceptions and all Permitted Exceptions are in full force and effect and in good standing, without modification except as disclosed on Exhibit A attached; (d) none of the Permitted Exceptions will be modified by Borrower without Lenders prior written consent; (e) Borrower will fully comply with all the terms of the Permitted Exceptions; and (f) that Borrower has the right to grant, transfer, convey and assign the Property as herein provided and will forever warrant and defend the Property unto Lender against all claims and demands of any other person whomsoever, subject only to non-delinquent installments of taxes and assessments and the Permitted Exceptions. 1.2 Hazardous Substances. (a) Representations and Warranties. Borrower represents and warrants to Lender that except as set forth in the environmental reports obtained or delivered to Lender in connection with the Loan: (i) To the Borrowers actual knowledge, no asbestos has ever been used in the construction, repair or maintenance of any building, structure or other improvement now or heretofore located on the Property; (ii) no Hazardous Substance is currently being generated, manufactured, refined, transported, treated, stored, handled or disposed of, transferred, produced or processed on, under or about the Property, except in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws; (iii) neither Borrower nor, to Borrowers actual knowledge any other person or entity has ever caused or permitted any Hazardous Substance to be generated, manufactured, refined, transported, treated, stored, handled or disposed of, transferred, produced or processed on, under or about the Property, except in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws; (iv) Borrower has not received any notice of, nor is Borrower aware of, any actual or alleged violation with respect of the Property of any federal, stare or local statute, ordinance, rule, regulation or other law pertaining to Hazardous Substances; and (v) neither Borrower nor the Property is subject to any governmental or judicial claim, order, judgment or lien with respect to the clean-up of Hazardous Substances at or with respect to the Property, including, without limitation, the New Jersey Industrial Site Recovery Act, N.J.S.A.13:1K-6, et seq. (ISRA), the New jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23 11B at seq., the New Jersey Leaking Underground Storage Tank Act, N.J.S.A. 58:10A-21 at seq., and any stare super-lien and environmental clean-up statutes. Borrower further represents and warrants to Lender that the foregoing representations and warranties contained in this paragraph 1.2(a) are made after and are based upon inspection of the Property by Borrower and due inquiry by Borrower as to the prior uses of the Property. (b) If the provisions of ISRA become applicable to the Property subsequent to the date of this Mortgage, Borrower shall provide Lender with prompt written notice thereof and shall immediately take all requisite action to insure full compliance therewith. Borrower shall deliver to Lender copies of all correspondence, notices and submissions that it sends or receives from the New Jersey Department of Environmental Protection in connection with such ISRA compliance. Borrowers obligation to comply with ISRA shall, notwithstanding its general applicability, also specifically apply to a sale, transfer, closure or termination of operations associated with any foreclosure action, including, without limitation, a foreclosure action brought with respect to this Mortgage. -3- |
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(c) Definition. As used herein, the term Hazardous Substance means any hazardous, toxic or dangerous substance, waste or material which is or becomes regulated under any federal, state or local statute, ordinance, rule, regulation or other law now or hereafter in effect pertaining to environmental protection, contamination or clean up, including without limitation any substance, waste or material which now or hereafter is (A) designated as a hazardous substance under or pursuant to the Federal Water Pollution Control Act (33 U.S.C. §1251 et sea.), (B) defined as a hazardous waste under or pursuant to the Resource Conservation and Recovery Act (42 U.S.C. §6901 et sea.), (C) defined as a hazardous substance in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq.), or (D) defined or listed as a hazardous substance or hazardous waste pursuant to N.J.S.A. § 13:1D-37, a hazardous substance pursuant to N.J.S.A. § 13:1K-8, a hazardous substance pursuant to N.J.S.A. § 58:10-23.11b, a hazardous pollutant, pollutant or toxic pollutant pursuant to N.J.S.A. § 58:10A-3, or a hazardous substance pursuant to N.J.S.A. § 58:10A-22. 1.3 Location of Borrower. Borrower represents and warrants to Lender that each Borrower is a limited liability company organized under the laws of the State of Delaware, qualified to transact business in the State of New Jersey, and each Borrowers exact legal name is as set forth in the first paragraph on page 1 of this Mortgage. Borrower covenants that it will give Lender thirty (30) days prior written notice of any act, event or occurrence which will cause the representations and/or warranties in this paragraph to become untrue in any respect. ARTICLE II BORROWERS COVENANTS 2.1 Payment and Performance of Secured Obligations. Borrower will pay when due all sums which are now or which may become owing on the Note, and will pay and perform all other Secured Obligations, in accordance with their terms. (a) Taxes and Assessments. Except as the same may otherwise be paid under Article III, Borrower will pay prior to delinquency directly to the payee thereof all taxes and assessments (including without limitation non-governmental levies or assessments such as maintenance charges, owner association dues or charges, or fees, levies or charges resulting from covenants, conditions or restrictions) levied, assessed or charged against or with respect to the Property or this Mortgage. Pursuant to N.J.S.A. § 46:9-3, as amended, Borrower covenants that no owner of the Property shall be entitled to any credit by reason of the payment of any tax on the Property. Upon request, Borrower shall promptly furnish to Lender all notices of amounts due under this subparagraph and all receipts evidencing such payments. However, Borrower may contest any such taxes or assessment by appropriate proceedings duly instituted and diligently prosecuted at Borrowers expenses. Borrower shall not be obligated to pay such taxes or assessments while such contest is pending if the Property is not thereby subjected to imminent loss or forfeiture and, if Borrower has not provided evidence that it has deposited with entire amount assessed with the applicable governmental authority, it deposits the entire amount together with projected penalties and interest with Lender or provides other security satisfactory to Lender in its sole discretion. (b) Utilities. Borrower will pay when due all utility charges and assessments for services furnished the Property. (c) Liens and Charges. Borrower will pay when due the claims of all person supplying labor or materials to or in connection with the Property. Without waiving the restrictions of paragraph 4.1, Borrower will promptly discharge any lien other charge, whether superior or inferior to this Mortgage, which may be claimed against the Property. 2.3 Insurance. (a) Coverages Required. Borrower will keep the following insurance coverages in effect with respect to the Property: -4- |
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(i) Insurance against loss by fire, vandalism, malicious mischief and such other hazards as may now or hereafter be embraced by the standard all risk or special form policy of insurance, in an amount equal at all times to the lesser of one hundred percent (100%) of the current replacement value of the improvements then located on the Property or the amount of the Loan. All such insurance coverage shall contain a replacement cost endorsement, without deduction for depreciation. (ii) Flood risk insurance in the maximum amount of insurance coverage available or the full replacement cost of the buildings on the Realty, whichever is less, if the Realty is now or hereafter designated as being located within a special flood hazard area under the Flood Disaster Protection Act of 1973 and if flood insurance is available. (iii) Loss of rental value insurance and/or business interruption insurance, as follows; If all or any portion of the Property is rented or leased, loss of rental value insurance in an amount equal to twelve (12) months aggregate gross rents from the Property as is so occupied. If all or any portion of the Property is occupied by Borrower, business interruption insurance in an amount equal to twelve (12) months net income from such portion of the Property as is so occupied. The amount(s) of such coverage(s) shall be subject to adjustment, from time to time at Leaders request, to reflect changes in the rental and/or income levels during the term of the Loan. (iv) Commercial general public liability insurance against claims for bodily injury, death or property damage occurring on, in or about the Property (including coverage for elevators and escalators, if any, on the Property), with the coverage being in an amount of not less than One Million Dollars ($1,000,000) combined single-limit liability coverage, or in such greater amount(s) as Lender may reasonably require. (v) Insurance covering the perils of terrorism and acts of terrorism. (vi) Boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, air conditioning and elevator and escalator equipment, provided the improvements contain equipment of such nature, and insurance against loss of occupancy or use arising from breakdown of any of such items, in such amounts as Lender may reasonably require. (vii) Demolition, increased cost of construction and contingent building laws liability insurance, if and at any time the Property constitutes a legal, non-conforming use under applicable zoning or other governmental laws. (viii) Sinkhole insurance if the Property is located in a sinkhole zone. (ix) Wind storm insurance. (x) Insurance (excluding, however, earthquake insurance) against such similar or other hazards, casualties, liabilities and contingencies, in such forms and amounts, as Lender may from time to time reasonably require. (b) Policies. Each insurance policy will he in form and content acceptable to Lender, with a deductible of no greater than Twenty-Five Thousand Dollars ($25,000.00),and will be issued by a company acceptable to Lender, which company shall, among other things, be (i) duly authorized to provide such insurance in the state in which the Property is located, and (ii) rated A-or better with a size rating of V or larger by A.M. Best Company in its most recent publication of ratings (provided however, that if A.M. Best Company changes its designations, the basis for its ratings or ceases to provide ratings, Lender shall be entitled to select replacement ratings in the exercise of its reasonable business judgment). Each hazard insurance policy will include a. Form 438BFU or equivalent mortgagee endorsement in favor of and in form acceptable to Lender, naming Lender as first mortgagee and loss payee, and which endorsement provides that the policy to which it relates will survive foreclosure of this Mortgage. Each liability insurance policy will name Lender as an additional assured. An agreed amount endorsement will be included in any policy containing a co-insurance clause, and Borrower aggress that any -5- |
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and all co-insurance clauses and agreed amount endorsements must be satisfactory to Lender. If any required property insurance coverage is furnished as part of a blanket policy, either the blanket policy will include an agreed value endorsement or agreed amount endorsement, or Borrower will furnish to Lender a copy of the insurers statement of value for the Property. All required policies will provide for at least thirty (30) days written notice to Lender prior to the effective date of any cancellation or material amendment, which term shall include any reduction in the scope or limits of coverage, and shall include a waiver of subrogation for any policy on which Borrower is a co-insured or additional insured. Borrower shall furnish to Lender (x) the complete original of each required insurance policy, or (y) a certified copy thereof (including all declaration pages, policy forms and endorsements), which shall include an original signature of an authorized officer or agent of the insurer, or (z) an uncertified memorandum copy thereof (including all declaration pages, policy forms and endorsements), together with an original evidence of insurance or certificate of insurance setting forth the coverage, the limits of liability, the carrier, the policy number and the expiration date. As security for the Secured Obligations, Borrower hereby assigns to Lender all required insurance policies, together with all monies and proceeds thereof, rights thereto and all unearned premiums returnable upon cancellation (all such assigned items constituting Property for purposes of this Mortgage). (c) Payment; Renewals. Borrower shall promptly furnish to Lender all renewal notices relating to insurance policies. Except as the same may otherwise be paid under Article III, Borrower will pay all premiums on insurance policies directly to the carrier. At least thirty (30) days prior to the expiration date of each such policy, Borrower shall furnish to Lender a renewal policy in a form acceptable to Lender, together with evidence that-the renewal premium has been paid. (d) Insurance Proceeds. (i) In the event of any loss, Borrower will give prompt written notice thereof to the insurance carrier and Lender. Borrower hereby grants Lender a power of attorney, which power of attorney is coupled with an interest and is irrevocable, to make proof of loss, to adjust and compromise any claim, to commence, appear in and prosecute, in Lenders or Borrowers name, any action relating to any claim, and to collect and receive insurance proceeds; provided, however, that Lender shall have no obligation to do so. If no Event of Default (as that term is hereafter defined) has occurred and is continuing, the immediately preceding sentence shall apply except that Lender shall not be entitled to act as Borrowers attorney-in-fact and Borrower shall be entitled to participate jointly with Lender in adjusting and compromising any claim, and appearing in any proceeding. (ii) Except as may otherwise be required by applicable law, Lender shall apply any insurance proceeds received hereunder first to the payment of the costs and expenses incurred in the collection of the proceeds and shall then apply the balance (the Net Proceeds), in its absolute discretion and without regard to the adequacy of its security, to: (A) The payment of indebtedness secured hereby, whether then due and payable or not. Any such application of proceeds to principal on the Note shall be without the imposition of any prepayment fee otherwise payable under the Note, but shall not extend or postpone the due dates of the installment payments under the Note, or change the amounts thereof; or (B) The reimbursement of Borrower, under Lenders prescribed disbursement control procedures, for the cost of restoration or repair of the Property. Lender may, at its option, condition the reimbursement on Lenders approval of the plans and specifications of the reconstruction, contractors cost estimates, construction budget and schedule, architects certificates, waivers of liens, sworn statements of mechanics and materialmen, and such other evidence of costs, percentage completion of construction, application of payments and satisfaction of liens as Lender may reasonably require. (iii) Notwithstanding the provisions of paragraph 2.3(d)(ii) above, Lender agrees that the Net Proceeds from a loss described in this paragraph 2.3(d) will be made available under clause (ii)(B) above to reimburse Borrower for the cost of restoration or repair of the Property, provided that each of the following conditions is satisfied: -6- |
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(A) At the time the proceeds are received, and at all times during the restoration or repair of the Property, no event or circumstance exists which is or which with the passage of time, the giving of notice, or both will constitute an Event of Default; (B) The Net Proceeds are less than the indebtedness then secured by this Mortgage; (C) The proceeds are received more than one (1) year prior to the maturity date of the Note, including any acceleration of the maturity date by Lender if the Note gives Lender a right of acceleration; (D) Borrower gives Lender written notice within thirty (30) days after the proceeds are received that it intends to restore or repair the Property and requests that the Net Proceeds be made available therefor, and Borrower thereafter promptly commences the restoration or repair and completes the same with reasonable diligence in accordance with plans and specifications approved by Lender, which approval shall not be unreasonably withheld; (E) The Net Proceeds are sufficient, in Lenders reasonable business judgment, to restore or repair the Property substantially to its condition prior to the damage or destruction or, if in Lenders reasonable business judgment they are not, Borrower deposits with Lender funds in an amount equal to the deficiency, which funds Lender may, at its option, require be expended prior to use of the Net Proceeds; and (F) Lender receives evidence reasonably satisfactory to Lender that the Property can lawfully be restored or repaired to its condition prior to the damage and destruction and that, upon completion of the restoration or repair, the Property can be operated substantially as it was before and will produce substantially as much income from tenant leases as it did before the damage or destruction. (iv) Except to the extent, if any, that insurance proceeds are applied to payment of the Secured Obligations, nothing herein contained shall be deemed to excuse Borrower from restoring, repairing or maintaining the Property as provided in paragraph 2.4, regardless of whether there are insurance proceeds available or whether any such proceeds are sufficient in amount. (e) Transfer of Title. If the Property is sold pursuant to Article VIII or if Lender otherwise acquires title to the Property, Lender shall have all of the right, title and interest of Borrower in and to any insurance policies and unearned premiums thereon and in and to the proceeds resulting from any damage to the Property prior to such sale or acquisition. (f) Insurance Covenant. Pursuant to N.J.S.A § 46:9-5, as amended, Borrower covenants and agrees that the improvements and buildings on the Property shall be kept insured against loss by fire for the benefit of Lender. 2.4 Preservation and Maintenance of Property; Right pf Entry. (a) Preservation and Maintenance. Borrower (i) will not commit or suffer any waste or permit any impairment or deterioration of the Property, (ii) will not abandon the Property, (iii) will restore or repair promptly and in a good and workmanlike manner all or any part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, in the event of any damage, injury or loss thereto, whether or not insurance proceeds are available to cover in whole or in part the costs of such restoration or repair, (iv) will keep the Property, including improvements, fixtures, equipment, machinery and appliances thereon, in good condition and repair and shall replace fixtures, equipment, machinery and appliances of the Property when necessary to keep such items in good condition and repair, and (v) will generally operate and maintain the Property in a commercially reasonable manner. -7- |
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(b) Alterations. No building or other improvement on the Realty will be structurally altered, removed or demolished, in whole or in part, without Lender prior written consent, nor will any fixture or chattel covered by this Mortgage and adapted to the use and enjoyment of the Property be removed at any time without like consent unless actually replaced by an article of equal suitability, owned by Borrower, free and clear of any lien or security interest except such as may be approved in writing by Lender. (c) Right of Entry. Lender is hereby authorized to enter the Property, including the interior of any structures, at reasonable times and after reasonable notice, for the purpose of inspecting the Property and for the purpose of performing any of the acts it is authorized to perform hereunder. 2.5 Hazardous Substances. (a) No Future Hazardous Substances. Borrower will not cause or permit the Property to be used to generate, manufacture, refine, transport treat, store, handle, dispose, transfer, produce or process any Hazardous Substance (as defined in this Mortgage), except in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws, nor shall Borrower cause or permit, as a result of any intentional or unintentional act or omission on the part of Borrower or any tenant, subtenant or other user or occupier of the Property, a releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of any Hazardous Substance onto the Property or any other property or into any waters, except in compliance with all such laws. (b) Notification: Clean Up. Borrower will immediately notify Lender if Borrower becomes aware of (i) any Hazardous Substance problem or liability with respect to the Property, (ii) any actual or alleged violation with respect to the Property of any federal, state or local statute, ordinance, rule, regulation or other law pertaining to Hazardous Substances, or (iii) any lien or action with respect to any of the foregoing. Borrower will, at its sole expense, take all actions as may be necessary or advisable for the clean-up of Hazardous Substances on or with respect to the Property, including without limitation all removal, containment and remedial actions in accordance with all applicable laws and in all events in a manner satisfactory to Lender, and shall further pay or cause to be paid all clean-up, administrative and enforcement costs of governmental agencies with respect to Hazardous Substances on or with respect to the Property if obligated to do so by contract or by law. (c) Verification. For the purposes of inspecting the Property to ascertain the accuracy of all representations and warranties in this Mortgage relating to Hazardous Substances, and the observance of all covenants contained in this paragraph 2.5, (i) Lender is hereby authorized to enter and inspect the Property, including the interior of any structures, at reasonable times and after reasonable notice; and (ii) if and at any time Hazardous Substances are being handled on the Property, Borrower shall furnish Lender with such information and documents as may be reasonably requested by Lender to confirm that such Hazardous Substances are being handled in compliance with all applicable federal, state and local statutes, ordinances, rules, regulations and other laws. Borrower shall reimburse Lender upon demand for all costs and expenses, including without limitation attorneys fees, incurred by Lender in connection with any such entry and inspection and the obtaining of such information and documents. 2.6 Parking. If any part of the automobile parking areas included within the Property is taken by condemnation, and before the parking areas are reduced for any other reason, Borrower will take all actions as are necessary to provide parking facilities in kind, size and location to comply with all governmental zoning and other regulations and all leases. Before making any contract for substitute parking facilities, Borrower will furnish to Lender satisfactory assurance of completion thereof free of liens and in conformity with all government zoning and other regulations. 2.7 Use of Property. Borrower will comply with all laws, ordinances, regulations and requirements of any governmental body, and all other covenants, conditions and restrictions, applicable to the Property, and pay all fees and charges in connection therewith. Borrower shall not cause or permit the installation, operation or presence on the Realty of any underground storage tank or system used or to be used for the storage, handling or dispensing of petroleum or any other substance regulated under the Resource Conservation and Recovery Act (42 USC § 6901 et seq.), as now or hereafter amended, or any state or local statute, ordinance, rule, regulation or other law now or -8- |
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hereafter in effect regulating underground storage tanks or systems. Borrower shall not cause or permit all or any of the Realty to be used for a gasoline station, service station or other fueling facility which in whole or in part handles, sells or distributes gasoline, diesel fuel, gasohol or any other substance used in self-propelled motor vehicles. Unless required by applicable law or unless Lender has otherwise agreed in writing, Borrower will not allow changes in the use for which all or any part of the Property was intended at the time this Mortgage was executed. Borrower will not initiate or acquiesce in a change in the zoning classification of the Property without Lenders prior written consent. 2.8 Condemnation. (a) Proceedings. Borrower will promptly notify Lender of any action or proceeding relating to any condemnation or other taking (including without limitation change of grade), whether direct or indirect, of the Property or part thereof or interest therein, and Borrower will appear in and prosecute any such action or proceeding unless otherwise directed by Lender in writing. Borrower grants Lender a power of attorney, which power of attorney is coupled with an interest and is irrevocable, to commence, appear in and prosecute, in Lenders or Borrowers name, any action or proceeding relating to any such condemnation or other taking, and to settle or compromise any claim in connection with such condemnation or other taking; provided, however, that Lender shall have no obligation to do so. All awards, payments, damages, direct, consequential and otherwise, claims, and proceeds thereof, in connection with any such condemnation or other taking, or for conveyances in lieu of condemnation, are hereby assigned to Lender (all such assigned items constituting Property for purposes of this Mortgage); all proceeds of any such awards, payments, damages or claims shall be paid to Lender. (b) Application of Proceeds. Lender shall apply any such proceeds in the manner and upon the terms and conditions set forth in paragraph 2.3(d)(ii) relating to the application of insurance proceeds, without regard to the provisions of paragraph 2.3(d)(iii). 2.9 Protection of Lenders Security. Borrower will give notice to Lender of and will, at its expense, appear in and defend any action or proceeding that might affect the Property or title thereto or the interests of Lender therein or the rights or remedies of Lender. If any such action or proceeding is commenced or if Lender is made a party to any such action or proceeding by reason of this Mortgage, or if Borrower fails to perform any obligation on its part to be performed hereunder, then Lender, in its discretion, may make any appearances, disburse any sums, make any entries upon the Property and take any actions as may be necessary or desirable to protect or enforce the security of this Mortgage, to remedy Borrowers failure to perform its obligations (without, however, waiving any default by Borrower) or otherwise to protect Lenders interests. Borrower will pay all losses, damages, fees, costs and expenses, including reasonable attorneys fees, of Lender thus incurred. This paragraph shall not be construed to require Lender to incur any expenses, make any appearances or take any actions. 2.10 Reimbursement of Lenders Expenses. All amounts disbursed by Lender pursuant to paragraph 2.9 or any other provision of this Mortgage, with interest thereon, shall be additional indebtedness of Borrower secured by this Mortgage. All such amounts shall be immediately due and payable and shall bear interest from the date of disbursement at the interest rate in effect on the Note from time to time, or at the maximum rate which may be collected from Borrower on such amounts by the payee thereof under applicable law if that is less. 2.11 Books and Records: Financial Statements. Borrower will keep and maintain at Borrowers address stated above, or such other place as Lender may approver in writing, book of accounts and records adequate to reflect correctly the results of the operation of the Property and copies of all written contracts, leases and other instruments which affect the Property. Such books, records, contracts, leases and other instruments shall be subject to examination, inspection and copying at any reasonable time by Lender. Borrower will furnish to Lender, within twenty (20) days after Lenders request therefor, the following documents, each certified to Lender by Borrower as being true, correct and complete: (a) a copy of all leases and other agreements for the occupancy or use of all or any part of the Property, (b) a rent roll for the Property, showing the name of each tenant, and for each tenant, the suite occupied, the number of square feet rented, the lease expiration date, the rent payable, the date through which rent has been paid, the amount of any security deposit and the number and term of any renewal options, (c) a copy of the most recent real and personal property tax statements for the Property, (d) a copy of the most recent statements for the insurance coverages maintained under paragraph 2.3(a) of this Mortgage, and (e) a statement of income and -9- |
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expenses of the Property for the most recently ended fiscal year of Borrower. In addition, Borrower and any general partner therein will furnish to Lender, within twenty (20) days after Lenders request therefor, a complete and current financial statement, in reasonable detail and certified as correct by Borrower or such partner. Borrower and any general partner therein hereby irrevocably authorize Lender to obtain credit reports on Borrower and any such general partner on one or more occasions during the term of the Loan. ARTICLE III RESERVES 3.1 Deposits. If required by Lender, Borrower will, at the time of making each installment payment under the Note, deposit with Lender a sum, as estimated by Lender, equal to (a) the taxes and special assessments next due on the Property, and (b) the premiums that will next become due on insurance policies as may be required under this Mortgage, less all sums already deposited therefor, divided by the number of months to elapse before one (1) month prior to the date when such rents, taxes, special assessments and premiums will become delinquent. Lender may require Borrower to deposit with Lender, in advance, such other sums for other taxes, assessments. premiums, charges and impositions in connection with Borrower or the Property as Lender reasonably deems necessary to protect Lenders interests (herein Other Impositions). Such sums for Other Impositions shall be deposited in a lump sum or in periodic installments, at Lenders option. If required by Lender, Borrower will promptly deliver to Lender all bills and notices with respect to any rents, taxes, assessments, premiums and Other Impositions. All sums deposited with Lender under this paragraph 3.1 are hereby pledged as security for the Secured Obligations. 3.2 Application of Deposits. All such deposited sums shall be held by Lender and applied in such order as Lender elects to pay such rents, taxes, assessments, premiums and Other Impositions or, in the Event of Default hereunder, may be applied in whole or in part, to indebtedness secured hereby. The arrangement provided for in this Article III is solely for the added protection of Lender and, except as may otherwise be required by applicable law, entails no responsibility on Lenders part beyond the allowing of due credit, without interest, for the sums actually received by it. Upon any assignment of this Mortgage by Lender, any funds on hand shall be turned over to the assignee and any responsibility of Lender with respect thereto shall terminate. Each transfer of the Property shall automatically transfer to the transferee all rights of Borrower with respect to any funds accumulated hereunder. Upon payment in full of the Secured Obligations, Lender shall promptly refund to Borrower the remaining balance of any deposits then held by Lender. 3.3 Adjustments to deposits. If the total deposits held by Lender exceed the amount deemed necessary by Lender to provide for the payment of such taxes, assessments, premiums and Other Impositions as the same fall due, then such excess shall, provided no Event of Default then exists hereunder, be credited by Lender on the next due installment of installments of such deposits. If at any time the total deposits held by Lender is less than the amount deemed necessary by Lender to provide for the payment thereof as the same fall due, then borrower will deposit the deficiency with Lender within thirty (30) days after written notice to Borrower stating the amount of the deficiency. ARTICLE IV RESTRICTIONS ON TRANSFER OR ENCUMBRANCE 4.1 Restrictions on Transfer or Encumbrance of the Property. (a) A Transfer is: Any sale (by contract or otherwise), encumbrance, conveyance or other transfer of the Property or any party thereof or interest therein; or any change in the ownership of any stock interest in a corporate Borrower, in the ownership of any membership interest or in the manager of a limited liability company Borrower, in the ownership of any general partnership interest in any general or limited partnership Borrower, or in the ownership of any beneficial interest in any other Borrower which is not a natural person or persons (including without limitation a trust); or any change in the ownership of any such stock, membership, general partnership or other beneficial interest in any corporation, limited liability company, partnership, trust or other entity, organization or association directly or indirectly owning an interest in Borrower, or a change in the manager of a limited liability -10- |
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company. A change in the ownership of a limited partnership interest in a limited partnership shall not be deemed a Transfer. (b) Without the prior written consent of Lender, in the Leaders sole and absolute discretion, no Transfer shall occur, whether by voluntary or involuntary conveyance, transfer, grant or assignment, by operation of law, or in any other manner. The occurrence of any Transfer without Lenders prior written consent shall constitute an Event of Default under this Mortgage and shall entitle Lender, at its sole and absolute discretion, to exercise any remedy or remedies provided for in paragraph 8.1 hereof. In the event that Lender is its sole and absolute discretion elects to consent to any such Transfer, Lender may condition its consent upon the payment of a fee to Lender, or an increase in the rate of interest due under the Note, or the items in paragraph 4.1(d) below, or any combination of the foregoing. Notwithstanding the foregoing the occurrence of a Transfer under any will, trust or applicable law of descent arising because of the death of an individual shall not constitute an Event of Default, so long as Lender is given prompt notice of the Transfer and the transferee. Lenders consent to a Transfer or its waiver of an Event of Default by reason of a Transfer shall not constitute a consent or waiver of any right, remedy or power accruing to Lender by reason of any subsequent Transfer. (c) Lender will give its written consent to Transfers (i) of limited partnership interests in GTJ Realty LP (provided that any pledge is to an institutional quality lender such as a bank or insurance company), (ii) under any will, trust or applicable law of descent arising because of an individuals death, provided that Lender is given prompt notice of the transfer and transferee, (iii) of interests in the borrower or any sub-entity to the transferors spouse and/or lineal descendants or trusts established for the transferors spouse and/or lineal descendants whose beneficiaries are the transferor, the transferors spouse and/or lineal descendants, or (iv) of shares of GTJ REIT, Inc. With respect to Transfers under clauses (i), (ii) and (iii) above, Lender shall (a) receive prior notice (except in the case of the death of an individual), (b) have reviewed and approved the transfer and related documents, (c) receive assurances that the lien priority of this Mortgage will not be affected, (d) receive a $1,500.00 transfer review fee plus payments of Lenders costs and expenses. Under clauses (ii), (iii) and (iv) above, the managerial control of the Property must remain satisfactory to Lender following the Transfer. Notwithstanding the foregoing, Borrower shall provide Lender with written notice of any change in the Chief Executive Officer or the President of GTJ REIT, Inc. (d) For any Transfer permitted under this Mortgage or requested by Borrower, Lender may condition its consent upon: The Property having been and assurances that it shall continue to be well maintained and managed in a manner reasonably satisfactory to Lender; Lenders approval of the Transfer terms, documents and background materials; there being no uncured Event of Default under this Mortgage; Borrower furnishing an endorsement to Lenders title insurance policy insuring the continued validity and priority of the lien of this Mortgage following the Transfer and such Subordination agreements and other documents as may be required by Lender or its title company to issue the endorsement. Unless Lender in its sole discretion otherwise agrees in writing at that time, no Transfer shall release the transferor from any liability under the Loan Documents or the Environmental Indemnity. By accepting a Transfer, the transferee assumes any and all liability of the transferor under the Loan Documents and the Environmental Indemnity to the extent the transferor has personal liability. At Lenders request, the parties shall execute agreements, guaranties and indemnities in form and substance acceptable to Lender. Regardless whether Lender consents to a Transfer request, Borrower agrees to pay all of Lenders out-of-pocket expenses incurred in connection with any Transfer request, including without limitation title fees and attorneys fees and costs, and Lender may condition its willingness to consider a Transfer request upon a deposit to pay for Lenders expenses. 4.2 Loan Assumption provision. Notwithstanding any provision of this Mortgage to the contrary, Lender will consent to one sale of the Property to, and the related and concurrent assumption of the Borrowers obligations under the Loan by, an unrelated third party (Buyer) (a Loan Assumption), provided that, each of the following conditions is met in a manner acceptable to Lender, in its sole and absolute discretion, at the time of the Loan Assumption: (a) No event or circumstance has occurred which is or which with the passage of time, the giving of notice, or both will constitute an Event of Default; and -11- |
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(b) Borrower gives Lender at least thirty (30) days prior written notice of the proposed transfer and copies of all proposed transfer documents; and (c) Buyer evidences a history of property management satisfactory to Leader or contracts for management of the Property with a property management firm satisfactory to Lender; and (d) If the unpaid balance of the Loan at the time of the Loan Assumption exceeds sixty-five percent (65%) of the sale price of the Property, a prepayment of the Loan shall, if required by Lender, be made at the time of the Loan Assumption in the amount of the excess, together with the applicable prepayment fee; and (e) Lender is paid at the time Borrower requests approval of the Loan Assumption, an assumption fee equal to one percent (1%) of the then outstanding Loan balance or $7,500.00, whichever is greater, plus Lenders legal and administrative expenses incurred in connection with such sale and assumption; and (f) Buyer, the financial statements, financial strength, tax returns and credit history of Buyer, the sale agreement and related documents, and all aspects of the sale and assumption shall be satisfactory to Lender; and (g) Borrower provides a new guarantor or guarantors for the Loan who are acceptable to Lender in its sole discretion; and (h) Borrower, the original guarantor(s), Buyer and the new guarantor(s) enter into an assumption agreement and such other documents as are requested by Lender in order to confirm the Loan Assumption and protect the liens and other security for the Loan; and (i) Borrower furnishes Lender, at Borrowers expense, with the following: (i) An endorsement to Lenders title insurance policy, in form and content satisfactory to Lender, insuring the continued validity, enforceability and priority of this Mortgage following the sale and Loan Assumption; and (ii) Such subordination agreements and other documents, in form and content satisfactory to Lender and the title company, as may be required by the title company in order to issue the endorsement; and (j) At the time of the Loan Assumption, Lender may, in its sole discretion, require the continuation or the establishment, as the case may be, of a reserve account under Article III of this Mortgage; and (k) Lender reviews and approves both: (i) the new borrower ownership structure and (ii) the new guarantor, and is able to confirm that no person or entity associated with the new borrower or guarantor (A) is listed in the Annex to, or is otherwise subject to the provisions of, Executive Order 13224 issued on September 24, 2001 (EO 13244); (B) name appears on the United States Treasury Departments Office of Foreign Assets Control (OFAC) most current list of Specifically Designated National and Blocked Persons (which list may be published from time to time in various mediums, including, but not limited to, the OFAC website (http://www.treasury.gov/ofac/downloads/t11sdn.pdf); (C) is a person who commits, threatens to commit or supports terrorism, as that term is defined in EO 13224; or (D) is otherwise affiliated with any entity or person listed above; and (l) Assumption of the Loan shall be conditioned upon the simultaneous assumption of Genworth Loan No. 901000543 extended by Lender to WU/LH 103 Fairview Park LLC and WU/LH 404 Fieldcrest LLC, in accordance with the terms of the assumption set form in the loan documents for such loan; and (m) Lender shall, in connection with a Loan Assumption effected in accordance with the foregoing, release the transferring Borrower and the original guarantor(s) from liability under the non-recourse -12- |
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exceptions set forth in the Note and Unconditional Guaranty and from liability under the Environmental Indemnity to the extent that such liability arose from acts or omissions occurring after the closing of the Loan Assumption; provided, however, that where the time when any act or omission took place is in dispute, the transferring Borrower and/or released guarantor, as applicable, shall have the burden of proof that such act or occurrence took place after the closing of the Loan Assumption. Notwithstanding the foregoing sentence, Lender may specify in its approval of a proposed Loan Assumption that Borrower and/or any guarantor(s) remain liable under the non-recourse exceptions set forth in the Note and Unconditional Guaranty and the Environmental Indemnity, in which case, Lender shall not be required to release Borrower and/or such guarantor(s) from any liability under the non-recourse exceptions set forth in the Note and Unconditional Guaranty and the Environmental Indemnity. ARTICLE V UNIFORM COMMERCIAL CODE SECURITY AGREEMENT 5.1 Grant to Leader. This Mortgage constitutes a security agreement pursuant to the Uniform Commercial Code with respect to: (a) Any of the Property which, under applicable law, is not real property or effectively made part of the real property by the provisions of this Mortgage; and (b) Any and all other property now or hereafter described on any Uniform Commercial Code Financing Statement naming Borrower as Debtor and Lender as Secured Party and affecting property in any way connected with the use and enjoyment of the Property (any and all such other property constituting Property for purposes of this Mortgage); and Borrower hereby grants Lender a security interest in all property described in clauses (a) and (b) above as security for the Secured Obligations. Borrower and Lender agree, however, that neither the foregoing grant of a security interest nor the filing of any such financing statement shall ever be construed as in any way derogating from the parties stated intention that everything used in connection with the production of income from the Property or adapted for use therein or which is described or reflected in this Mortgage is and at all times shall be regarded for all purposes as part of the real property. 5.2 Lenders Rights and Remedies. With respect to Property subject to the foregoing security interest, Lender has all of the rights and remedies (i) of a secured party under the Uniform Commercial Code, (ii) provided herein, including without limitation the right to cause such Property to be sold by Lender in any manner permitted by applicable law, and (iii) provided by law. In exercising its remedies, Lender may proceed against the items of real property and any items of personal property separately or together and in any order whatsoever, without in any way affecting the availability of Lenders remedies. Upon demand by Lender during the existence of an Event of Default hereunder, Borrower will assemble any items of personal property and make them available to Lender at the Property, a place which is hereby deemed to be reasonably convenient to both parties. Lender shall give Borrower at least five (5) days prior written notice of the time and place of any public sale or other disposition of such Property or of the time of or after which any private sale or any other intended disposition is to be made. Any person permitted sales as permitted by applicable law. All expenses incurred in realizing on such Property shall be borne by Borrower. 5.3 Fixture Filing. This Mortgage covers goods which are or are to become fixtures on the Realty, and this Mortgage constitutes and is filed as a fixture filing (as that term is defined in the New Jersey Uniform Commercial Code) upon such of the Property which is or may become fixtures. Borrower has an interest of record in the Realty. 5.4 Lender Authorization to File Financing Statement: Borrower Cooperation. Borrower hereby authorizes Lender to file one or more Uniform Commercial Code Financing Statements with respect to the Property. Borrower covenants and agrees that it will promptly furnish to Lender, upon Lenders request, such information as may be required in order for Lender to do so. -13- |
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ARTICLE VI ASSIGNMENT OF RENTS AND LEASES: LEASES OF PROPERTY: APPOINTMENT OF RECEIVER: LENDER IN POSSESSION 6.1 Assignment of Rents and Leases. As security for the Secured Obligations, Borrower hereby assigns and transfers to Lender all right, title and interest of Borrower in and to (a) any and all present and future leases and other agreements for the occupancy or use of all or any part of the Property, and any and all extensions, renewals and replacements thereof (collectively Leases), including without limitation the leases, if any, described on Exhibit B attached, (b) all cash or security deposits, advance rentals and deposits or payments of similar nature under the Leases, (c) any and all guaranties of tenants or occupants performances under any and all Leases, and (d) all rents, issues, profits and revenues (collectively Rents) now due or which may become due or to which Borrower may now or shall hereafter become entitled or may demand or claim (including Rents coming due during any redemption period), arising or issuing from or out of any and all Leases, including without limitation minimum, additional, percentage and deficiency rents and liquidated damages. 6.2 Collection of Rents. Prior to the occurrence of any event or circumstance which is or which with the passage of time, the giving of notice or both will constitute an Event of Default, Borrower shall collect and receive all Rents of the Property as trustee for the benefit of Lender and Borrower, and apply the Rents so collected first to the payment of taxes, assessments and other charges on the Property prior to delinquency, second to the cost of insurance, maintenance and repairs required by the terms of this Mortgage, third to the costs of discharging any obligation or liability of Borrower under the Leases, and fourth to the indebtedness secured hereby, with the balance, if any, so long as no such event or circumstance has occurred, to the account of Borrower. Upon notice from Lender to Borrower of the occurrence of any event or circumstance which is or which with the passage of time, the giving of notice or both will constitute an Event of Default hereunder and stating that Lender exercises its rights to the Rents, and without the necessity of Lender entering upon and taking and maintaining full control of the Property in person, by agent or by a court-appointed receiver, Lender shall immediately be entitled to possession of all Rents from the Property as the same become due and payable, including without limitation Rents then due and unpaid, and all such Rents shall immediately be held by Borrower as trustee for the benefit of Lender only. Upon the occurrence of any Event of Default, Lender may make written demand upon all or some of the tenants and occupants of the Property to pay all Rents to Lender, and Borrower hereby agrees that each such tenant and occupant shall have no liability to inquire further as to the existence of a default by Borrower. Upon such written demand by Lender, Borrower hereby agrees to direct each tenant or occupant of the Property to pay all Rents to Lender. Payments made to Lender by tenants or occupants shall, as to such tenants and occupants, be in discharge of the payors obligations to Borrower. Lender may exercise, in Lenders or Borrowers name, all rights and remedies available to Borrower with respect to collection of Rents. Nothing herein contained shall be construed as obligating Lender to perform any of Borrowers obligations under any of the Leases. 6.3 Borrowers Representations and Warranties. Borrower represents and warrants to Lender that Borrower has not executed and will not execute any other assignment of said Leases or Rents, that Borrower has not performed and will not perform any acts and has not executed and will not execute any instrument which would prevent Lender from exercising its rights under this Article VI, and that at the time of execution of this Mortgage there has been no anticipation or prepayment of any of the Rents of the Property for more than two (2) months prior to the due dates thereof. Borrower further represents and warrants to Lender that all existing Leases are in good standing and there is no default thereunder, whether by Borrower or lessee, nor to Borrowers knowledge any event or condition which, with notice or the passage of time or both, would be a default thereunder. 6.4 Leases of the Property. Borrower will comply with and observe Borrowers obligations as landlord under all Leases and will do all that is necessary to preserve all Leases in force and free from any right of counterclaim, defense or setoff. Without Lenders written consent, Borrower will not collect or accept payment of any Rents of the Property more than two (2) months prior to the due dates thereof, will not enter into, execute, modify or extend any Lease now existing or hereafter made providing for a term (assuming that all renewal options, if any, are exercised) of more than five (5) years unless the area demised by the Lease is less than twenty-five percent (25%) of the net rentable area of the building(s) at the Property. Without Lenders written consent, Borrower will not surrender or terminate any Lease now existing or hereafter made providing a term (assuming that all renewal -14- |
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options, if any. are exercised) of more than five (5) years nor will Borrower surrender or terminate in any single twelve-month period Leases demising more than twenty-five percent (25%) of the aggregate total net rentable area. Each Lease of the Property will be subordinate to the lien of this Mortgage, unless Lender elects that the Lease shall be superior to this Mortgage, and each tenant shall execute an appropriate subordination or attornment agreement as may be required by Lender. To the extent required by Lender, each tenant shall execute an estoppel certificate and acknowledge receipt of a notice of the assignment to Lender of its Lease, all satisfactory in form and content to Lender, Without Lenders written consent Borrower will not request or consent to the subordination of any Lease to any lies subordinate to this Mortgage. 6.5 Lender in Possession: Appointment of Receiver. Upon the occurrence of any Event of Default hereunder, Lender may, in person, by agent or by a court-appointed receiver, regardless of the adequacy of Lenders security, enter upon and take and maintain full control of the Property in order to perform all acts necessary and appropriate for the operation and maintenance thereof in the same manner and to the same extent as Borrower could do the same, including without limitation the execution, enforcement, cancellation and modification of Leases, the collection of ail Rents of the Property, the removal and eviction of tenants and other occupants, the making of alterations and repairs to the Property, and the execution and termination of contracts providing for management or maintenance of the Property, all on such terms as are deemed best by Lender to protect the security of this Mortgage. From and after the occurrence of any such Event of Default, if any owner of the Property shall occupy the Property or part thereof such owner shall pay to Lender in advance on the first day of each month a reasonable rental for the space so occupied, and upon failure so to do Lender shall be entitled to remove such owner from the Property by any appropriate action or proceedings. Following the occurrence of an Event of Default, Lender shall be entitled (without notice and regardless of the adequacy of Lenders security) to the appointment of a receiver, Borrower hereby consenting to the appointment of such receiver, and the receiver shall have, in addition to all the rights and powers customarily given to and exercised by such receivers, all the rights and powers granted to Lender in this Article VI. Lender or the receiver shall be entitled to receive a reasonable fee for so managing the Property. 6.6 Application of Rents. All Rents collected subsequent to delivery of written notice by Lender to Borrower of an Event of Default hereunder shall be applied first to the costs, if any, of taking control of and managing the Property and collecting the Rents, including without limitation attorneys fees, receivers fees, premiums on receivers bonds, costs of maintenance and repairs to the Property, premiums on insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any obligation or liability of Borrower under the Leases, and then to the indebtedness secured hereby. Lender or the receiver shall be liable to account only for those Rents actually received. Lender shall not be liable to Borrower, anyone claiming under or through Borrower or anyone having an interest in the Property by reason of anything done or left undone by Lender under this Article VI. 6.7 Deficiencies. To the extent, if any, that the costs of taking control of and managing the Property, Collecting the Rents, and discharging obligations and liabilities of Borrower under the Leases, exceed the Rents of the Property, the excess sums expended for such purposes shall be indebtedness secured by this Mortgage. Such excess sums shall be payable upon demand by Lender and shall interest from the date of disbursement at the default rate of interest stated in the Note, or the maximum rate which may be collected from Borrower therefore under applicable law if that is less. 6.8 Lender Not Mortgagee in Possession. Nothing herein shall constitute Lender a mortgagee in possession prior to its actual entry upon and taking possession of the Property. Entry upon and taking possession by a receiver shall not constitute possession by Lender. 6.9 Enforcement. Lender may enforce this assignment without first resorting to or exhausting any security or collateral for the indebtedness. As used in this Article VI, the word lease shall mean sublease if this Mortgage is on a leasehold. This assignment shall terminate at such time this Mortgage ceases to secure payment of indebtedness held by Lender. -15- |
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ARTICLE VII EVENTS OF DEFAULT 7.1 Events of Default. The occurrence of any one or more of the following shall constitute an Event of Default hereunder: (a) Borrowers failure to make any payment when due under the Note, this Mortgage or any of the other Loan Documents, followed by Borrowers failure to make such payment within ten (10) days after written notice thereof given to Borrower by Lender; provided, however, that Lender shall not be obligated to give Borrower written notice prior to exercising its remedies with respect to such default if Lender had previously given Borrower during the previous twelve (12) month period a notice of default for failure to make a payment of similar type. (b) Borrowers failure to perform any other covenant, agreement or obligation under the Note, this Mortgage or any of the other Loan Documents, followed by Borrowers failure to cure such default within thirty (30) days after written notice thereof given to Borrower by Lender (or if such cure cannot be completed within such-thirty (30) day period through the exercise of diligence, the failure by Borrower to commence the required cure within such thirty (30) day period and thereafter to continue the cure with diligence and to complete the cure within ninety (90).days following Lenders notice of default). (c) Borrower or any trustee of Borrower files a petition in bankruptcy or for an arrangement, reorganization or any other form of debtor relief; or such a petition is filed against Borrower or any trustee of Borrower and the petition is not dismissed within forty-five (45) days after filing. (d) A decree or order is entered for the appointment of a trustee, receiver or liquidator for Borrower or Borrowers property, and such decree or order is not vacated within forty-five (45) days after the date of entry. (e) Borrower commences any proceeding for dissolution or liquidation; or any such proceeding is commenced against Borrower and the proceeding is not dismissed within forty-five (45) days after fee date of commencement. (f) Borrower makes an assignment for the benefit of its creditors, or admits in writing its Inability to pay its debts generally as they become due. (g) There is an attachment, execution or other judicial seizure of any portion of Borrowers assets and such seizure is not discharged within fifteen (15) days. (h) Any representation or disclosure made to Lender by Borrower or any guarantor in connection herewith proves to be materially false or misleading when made, whether or not that representation or disclosure is contained in the Loan Documents. (i) The existence of any event of default under any of the documents evidencing or securing the loan in the original principal amount of Fourteen Million Four Hundred Thousand Dollars ($ 14,400,000,00) extended by Lender to WU/LH 103 Fairview Park LLC and WU/LH 404 Fieldcrest LLC. 7.2 Form of Notice. At Lenders any written notice of default required to be given to Borrower under paragraph 7.1 may be given in the form of a statutory notice of default under the laws of the State of New Jersey relating to foreclosures of mortgages. S:\MAG\31173\Loan Documents. doc -16- |
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ARTICLE VIII REMEDIES 8.1 Acceleration Upon Default: Additional Remedies. Upon the occurrence of any Event of Default hereunder, Lender may, at its option and without notice to or demand upon Borrower, take any one or more of the following actions: (a) Declare any or all indebtedness secured by this Mortgage to be due and payable immediately. (b) Bring a court action to enforce the provisions of this Mortgage or any of the indebtedness or obligations secured by this Mortgage. (c) Bring a court action to foreclose this Mortgage pursuant to N.J.S.A. § 2A:50, et seq., as amended, or in accordance with applicable law. (d) Cause any or all of the Property to be sold in any manner permitted by applicable law. (e) Exercise any or all of the rights and remedies provided for under this Mortgage and the other Loan Documents. (f) Exercise any other right or remedy available under law or in equity. 8.2 Sale of Property. For any sale under this Mortgage, Lender shall record and give all notices required by law and then, upon the expiration of such time as is required by law, Lender may sell the Property upon any terms and conditions specified by Lender and permitted by applicable law. Lender may postpone any sale by public announcement at the time and place noticed for the sale. If the Property includes several lots or parcels, Lender in its discretion may designate their order of sale or may elect to sell all of them as an entirety. The Property, real, personal and mixed, may be sold in one parcel. 8.3 Application of Sale Proceeds. Except as may otherwise be required by applicable law, the proceeds of any sale under this Mortgage will be applied in the following manner: FIRST: Payment of the costs and expenses of the sale, including without limitation Lenders fees, legal fees and disbursements, title charges and transfer taxes, and payment of all expenses, liabilities and advances of Lender, together with interest on all advances made by Lender from date of disbursement at the applicable interest rate under the Note from time to time or at the maximum rate permitted to be charged by Lender under the applicable law if that is less. SECOND: Payment of all sums expended by Lender under me .terms of this Mortgage and not yet repaid, together with interest on such sums from date of disbursement at the applicable interest rate under the Note from time to time or the maximum rate permitted by applicable law if that is less. THIRD: Payment of all other indebtedness secured by this Mortgage in any order that Lender chooses. FOURTH: The remainder, if any, to the person or persons legally entitled to it. 8.4 Waiver of Order of Sale and Marshalling. Lender shall have the right to determine the order is which any and all portions of the Secured Obligations are satisfied from the proceeds realized upon the exercise of any remedies provided herein. Borrower, any person who consents to this Mortgage and any person who now or hereafter acquires a security interest in the Property hereby waives, to the extent permitted by law, any and ail right to require marshalling of assets in connection with the exercise of any of the remedies provided herein or to direct the order in which any of the Property will be sold in the event of any sale under this Mortgage. S:\MAG\31173\Loan Docamsnts.doc -17- |
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8.5 Non-Waiver of Defaults. The entering upon and taking possession of the Property, the collection of Rents or the proceeds of fire and other insurance policies or compensation or awards for any taking or damage of the Property, and the application or release thereof as herein provided, shall not cure or waive any default or notice of default hereunder or invalidate any act dose pursuant to such notice. 8.6 Expenses During Redemption Period. If this Mortgage is foreclosed through court action and the Property sold at a foreclosure sale, fee purchaser may during any redemption period allowed, make such repairs or alterations on the Property as may be reasonably necessary for the proper operation, care, preservation, protection and insuring thereof. Any sums so paid together with interest thereon from the time of such expenditure at the default rate of interest stated in the Note or the highest lawful rate if that is less shall be added to and become a part of the amount required to be paid for redemption from such sale. 8.7 Foreclosure Subject to Tenancies. Lender shall have the right at its option to foreclose this Mortgage subject to the rights of any tenant or tenants of the Property. 8.8 Evasion of Prepayment Terms. If an Event of Default hereunder has occurred and is continuing, a tender of payment of the indebtedness secured hereby at anytime prior to or at a judicial or nonjudicial foreclosure sale of the Property by Borrower or anyone on behalf of Borrower shall constitute an evasion of the prepayment terms of the Note and shall constitute voluntary prepayment thereunder and any such tender shall to the extent permitted by law include the additional payment required under the prepayment privilege, if any, contained in the Note or, if at that time there is no prepayment privilege, then such payment shall to the extent permitted by law include an additional payment of five percent (5%) of the then principal Loan balance. 8.9 Remedies Cumulative. To the extent permitted by law, every right and remedy provided in this Mortgage is distinct and cumulative to all other rights or remedies under this Mortgage or afforded by law or equity or any other agreement between Lender and Borrower, and may be exercised concurrently, independently or successively, in any order whatsoever. Lender may exercise any of its rights and remedies at its option without regard to the adequacy of its security. 8.10 Lenders Expenses. Borrower will pay all of Lenders expenses incurred in any efforts to enforce any terms of this Mortgage, whether or not any suit is filed, including without limitation reasonable legal fees and disbursements, foreclosure costs and title charges. All such sums, with interest thereon, shall be additional indebtedness of Borrower secured by this Mortgage. Such sums shall be immediately due and payable and shall bear interest from the date of disbursement at the default rate of interest stated in the Note, or the maximum rate which may be collected from Borrower under applicable law if that is less. 8.11 Acceleration Covenant. Without limiting and notwithstanding any of the foregoing, pursuant to N.J.S.A. § 46:9-6, as amended, Borrower covenants and agrees that the whole of the indebtedness secured by this Mortgage shall at the option of the Lender become due after default in the payment of any installment of principal and interest as provided in the Note, default in the payment of any tax the responsibility of Borrower under this Mortgage, default in the payment of any water rate or assessment when due, or a failure and default in keeping the improvements and buildings insured against loss by fire for the benefit of and to the satisfaction of the Lender. ARTICLE IX GENERAL 9.1 Application of Payments. Except as applicable law or this Mortgage may otherwise provide, all payments received by Lender under the Note or this Mortgages shall be applied by Lender in the following order of priority: (a) Lenders expenses incurred in any efforts to enforce any terms of this Mortgages; (b) amounts payable to Lender by Borrower under Article III for reserves; (c) interest and late charges payable on the Note; (d) principal of the Note; (e) interest payable on advances made to protect the security of this Mortgage; (f) principal of such advances; and (g) any other sums secured by this mortgage in such order as Lender, at its option, may determine; provided, however, that Lender may, at its option, apply any such payments received to interest on and principal of -18- |
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advances made to protect the security of this Mortgage prior to applying such payments to interest on or principal of the Note. 9.2 Reconveyance. Upon payment of all sums secured by this Mortgage, Lender shall reconvey the Property without warranty to the person or persons legally entitled thereto and shall surrender this Mortgage and all notes evidencing indebtedness secured by this Mortgage. The grantee in any reconveyance may be described as the person or persons legally entitled thereto, and the recitals therein of any matters or facts shall be conclusive proof of the truthfulness thereof. Such person or persons shall pay Lenders reasonable costs incurred in so reconveying the Property. 9.3 Lenders Powers. Without affecting the liability of any person for payment or performance of the Secured Obligations, or any of Lenders rights or remedies, or the priority of this Mortgage, Lender, at its option, may extend the time for payment of the indebtedness secured hereby or any part thereof, reduce payment thereon, release anyone liable on any of said indebtedness, accept a renewal note or notes therefor, modify the terms and time of payment of the indebtedness, release the lien of this Mortgage on any part of the Property, take or release other or additional security, release or reconvey or cause to be released or reconveyed all or any part of the Property, or consent to the making of any map or plat of the Property, consent to the granting of any easement or creating any restriction on the Property, or join in any subordination or other agreement affecting this Mortgage or the lien or charge hereof. Borrower shall pay Lender a reasonable service charge, together with such title insurance premiums and attorneys fees as may be incurred at Lenders option, for any such action if taken at Borrowers request. 9.4 Subrogation. Lender shall be subrogated for further security to the lien, although released of record, of any and all encumbrances discharged, in whole or in part, by the proceeds of the Loan or any other indebtedness secured hereby. 9.5 Limitation on Interest and Charges. Interest, fees and charges collected or to be collected in connection with the indebtedness secured hereby shall not exceed the maximum, if any, permitted by any applicable law. If any such law is interpreted so that said interest fees and/or charges would exceed any such maximum and Borrower is entitled to the benefit of such law, then: (a) such interest, fees and/or charges shall be reduced by the amount necessary to reduce the same to the permitted maximum; and (b) any sums already paid to Lender which exceeded the permitted maximum will be refunded. Lender may choose to make the refund either by treating the payments, to the extent of the excess, as prepayments of principal or by making a direct payment to the person(s) entitled thereto. No prepayment premium shall be assessed on prepayments under this paragraph. The provisions of this paragraph shall control over any inconsistent provision of this Mortgage or the Note or any other Loan Documents. 9.6 Additional Documents: Power of Attorney. Borrower, from time to time, will execute, acknowledge and deliver to Lender upon request, and hereby grants Lender a power of attorney, which power of attorney is coupled with an interest and is irrevocable, to execute, acknowledge, deliver and if appropriate file and record, such security agreements, assignments for security purposes, assignments absolute, financing statements, affidavits, certificates and other documents, in form and substance satisfactory to Lender, as Lender may request in order to perfect, preserve, continue, extend or maintain the assignments herein contained, the lien and security interest under this Mortgage, and the priority thereof. Borrower will pay to Lender upon request therefore all costs and expenses incurred in connection with the preparation, execution, recording and filing of any such document. 9.7 Waiver of Statute of Limitations. To the full extent Borrower may do so, Borrower hereby waives the right to assert any statute of limitations as a defense to the enforcement of the lien of this Mortgage or to any action brought to enforce the Note or any other obligation secured by this Mortgage. 9.8 Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law. shall not be a waiver of or preclude the exercise of any right or remedy, and no waiver by Lender of any particular default by Borrower shall constitute a waiver of any other default or of any similar default in the future. Without limiting the generality of the foregoing, the acceptance by Lender of payment of any sum secured by this Mortgage after the due date thereof shall not be a waiver of Lenders -19- |
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right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lenders right to accelerate the maturity of the indebtedness secured by this Mortgage, nor shall Lenders receipt of any awards, proceeds or damages under paragraphs 2.3 and 2.8 hereof operate to cure or waive Borrowers default in payment of sums secured by this Mortgage. 9.9 Modifications and Waivers. This Mortgage cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. 9.10 Notice. Except as applicable law may otherwise require, all notices and other communications shall be in writing and shall be deemed given when delivered by personal service, when sent by overnight courier, or when mailed, by certified or registered mail, postage prepaid, addressed to the address set forth at the beginning ofthis Mortgage. Any party may at any time change its address for such purposes by delivering or mailing to the other parties hereto as aforesaid a notice of such change. 9.11 Governing Law: Severability: Captions. This Mortgage shall be governed by the laws of the State of New Jersey. If any provision or clause of this Mortgage conflicts with applicable law, such conflicts shall not affect other provisions or clauses hereof which can be given effect without the conflicting provision, and to this end the provisions hereof are declared to be severable. The captions and headings of the paragraphs and articles of this Mortgage are for convenience only and are not to be used to interpret or define the provisions hereof. 9.12 Definitions. As used herein: the term Borrower means the Borrower herein named, together with any subsequent owner of the Property or any part thereof or interest therein; and the term Lender means the Lender herein named, together with any subsequent owner or holder of the Note or any interest therein, including pledgees, assignees and participants. 9.13 Successors and Assigns: Joint and Several Liability; Agents. This Mortgage shall bind and inure to the benefit of the parties hereto and their respective heirs, devisees, legatees, administrators, executors, successors and assigns, subject to the provisions of Article IV hereof. Each person executing this Mortgage as Borrower shall be jointly and severally liable for all obligations of Borrower hereunder. In exercising any rights hereunder or taking actions provided for herein, Lender may act through their respective employees, agents or independent contractors as authorized by Lender. 9.14 Number: Gender. This Mortgage shall be construed so that wherever applicable the use of the singular number shall include the plural number, and vice versa, and the use of any gender shall be applicable to all genders. 9.15 Time. Time is of the essence in connection with all obligations of Borrower herein. 9.16 Request for Notice. Borrower hereby requests that a copy of any notice of default and notice of sale hereunder be mailed to it at its address set forth at the beginning of this Mortgage. 9.17 Modification of Mortgage. This Mortgage is subject to modification as such term is defined in N.J.S.A. § 46:9-81, et seq., as amended (Modification Act), and shall be subject to the provisions of such Modification Act. 9.18 Receipt of Mortgage. Borrower hereby declares and acknowledges receipt, without charge, of a true and correct copy of this Mortgage. 9.19 Acknowledgement of Notice. Borrower hereby declares and acknowledges receipt of any and all notices, in a timely fashion, from Lender and all other parties required or that may be required pursuant to N.J.S.A. § 46:10A-1, as amended. -20- |
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IN WITNESS WHEREOF, Borrower has executed this Mortgage as of the day and year first above written. WITNESS: BORROWER: WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: [ILLEGIBLE] Name: [ILLEGIBLE] Title: President WU/LH 500 AMERICAN L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation; Manager By: [ILLEGEBLE] Name: [ILLEGIBLE] Title: President -21- |
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STATE OF NEW YORK, CITY/COUNTY OF .Nassau , TO WIT: BE IT REMEMBERED, that on this 1 day of April , 2013, before me, the subscriber, personally appeared [ILLEGIBLE] , who, I am satisfied. is the person who signed the within instrument as the President of GTJ REIT, Inc., a Maryland corporation, which is the Manager of GTJ GP, LLC, a Maryland limited liability company, which is the General Partner of GTJ Realty, LP, a Delaware limited partnership, which is the Manager of WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company, the limited liability company named in the within instrument, and this person thereupon acknowledged that he/she is authorized to sign the within instrument on behalf of the limited liability company and signed, sealed and delivered this instrument as the voluntary act and deed of the limited liability company. [ILLEGIBLE] (SEAL) NOTARY PUBLIC Paul A. Cooper Notary Public, Stats of New York No. 01C04953428 Qualified in Nassau County Commission Expires November 20, 2013 STATE OF NEW YORK, CITY/COUNTY OF Nassau , TO WIT: BE IT REMEMBERED, that on this 1 day of April , 2013, before me, the subscriber, personally appeared [ILLEGEBLE], who, I am satisfied, is the person who signed the within instrument as the President of GTJ REIT, Inc., a Maryland corporation, which is the Manager of GTJ GP, LLC, a Maryland limited liability company, which is the General Partner of GTJ Realty, LP. a Delaware limited partnership, which is the Manager of WU/LH 500 AMERICAN L.L.C., a Delaware limited liability company, the limited liability company named in the within instrument, and this person thereupon acknowledged that he/she is authorized to sign the within instrument on behalf of the limited liability company and signed, sealed and delivered this instrument as the voluntary act and deed of the limited liability company. [ILLEGIBLE] (SEAL) NOTARY PUBLIC Paul A. Cooper Notary Public State of New York No. 01C04953428 Qualified in Nassau county Commission Expires November 20, 2013 -22- |
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EXHIBIT A TO MORTGAGE PROPERTY SCHEDULE LEGAL DESCRIPTION: The property which is the subject of this Mortgage is situated in the County of Morris, State of New Jersey, and is legally described as follows: THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE BOROUGH OF MORRIS PLAINS, COUNTY OF MORRIS, AND STATE OF NEW JERSEY, AND IS DESCRIBED AS FOLLOWS: TRACT 1 FEE PARCEL: BEGINNING AT AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET IN THE SOUTHERLY LINE OF LANDS HERETNDESCRIBED WHERE THE SAME IS INTERSECTED BY THE EASTERLY LINE OF LANDS NOW OR FORMERLY OF PAR THREE PROPERTIES, INC. AS DESCRIBED IN DEED BOOK 2545 AT PAGE 491, SAID POINT BEING DISTANT 693.92 FEET AS MEASURED IN A NORTHERLY DIRECTION ALONG THE EASTERLY LINE OF PAR THREE PROPERTIES, INC. FROM A DRILL HOLE SET AT ITS INTERSECTION WITH THE NORTHERLY SIDELINE OF EAST HANOVER AVENUE, VARIABLE WIDTH RIGHT OF WAY, AND FROM SAID POINT RUNNING; THENCE, 1) ALONG PAR THREE PROPERTIES, INC., NORTH 74 DEGREES 03 MINUTES 20 SECONDS WEST 276.13 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET IN THE BASTERLY LINE OF LANDS NOW OR FORMERLY OF CONRAIL, FORMERLY NEW JERSEY TRANSIT - MORRIS & ESSEX LINE; THENCE, 2) ALONG CONRAIL, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 920.93 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET WHERE THE SAME IS INTERSECTED BY TEE DIVISION LINE BETWEEN LANDS HEREINDESCRIBED AND LANDS NOW OR FORMERLY OF BAKER-FIRESTONE PROPERTIES LIMITED PARTNERSHIP AS DESCRIBED LI DEED BOOK 2765 AT PAGE 517 SAID PROPERTY DESIGNATED AS LOT E AS SHOWN ON A MAP ENTITLED FINAL, PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PARK, FILBD IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7 1989 AS MAP NO. 4767; THENCE, 3) ALONE LOT E, NORTH 85 DEGREES 16 MINUTES 40 SECOND EAST 70.12 FEET TO A MAG NAIL 4) WITH DISC, IDENTIFIED "RICHARD F SMITH JR. PLS25048", SET; THENCE, 5) SOUTH 32 DEGREES 52 MINUTES 58 SECONDS EAST 162.34 FEET TO A POINT; THENCE. 6) ALONG LOT E AND THEN ALONG LOT D AS SHOWN ON THE AFOREMENTIONED FILED MAP, SOUTH 57 DEGREES 43 MINUTES 18 SECONDS EAST 284,12 FEET TO A MAG NAIL WITH DISC. TDENTTFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, -23- |
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7) NORTH 85 DEGREES 16 MINUTES 40 SECONDS EAST 19.68 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET AT A POINT OF CURVATURE IN THE SAME; THENCE, 8) ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 30.00 FEET, A CENTRAL ANGLE OF 40 DEGREES 30 MINUTES 02 SECONDS, AN ARC LENGTH OF 21.21 FEET, SAID CURVE BEARING A CHORD OF SOUTH 74 DEGREES 28 MINUTES 19 SECONDS EAST, A CHORD DISTANCE OF 20.77 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 9) SOUTH 35 DEGREES 46 MINUTES 42 SECONDS WEST 78.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 10) SOUTH 54 DEGREES 13 MINUTES 18 SECONDS EAST 108.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 11) SOUTH 35 DEGREES 46 MINUTES 42 SECONDS WEST 60,00 FEET TO A CORNER IN THE SAME; THENCE, 12) SOUTH 54 DEGREES 13 MINUTES 18 SECONDS EAST 36.00 FEET TO A CORNER FN THE SAME; THENCE, 13) SOUTH 35 DEGREES 46 MINUTES 42 SECONDS WEST 18.00 FEET TO A CORNER FN THE SAME; THENCE, 14) SOUTH 28 DEGREES 13 MINUTES 18 SECONDS EAST 42.00 FEET TO A CORNER IN THE SAME; THENCE, 15) ALONG LOT D AND THEN ALONG LOT A AS SHOWN ON THE AFOREMENTIONED FILED MAP, SOUTH 00 DEGREES 57 MINUTES 07 SECONDS EAST 308.57 FEET TO A CORNER IN THE SAME; THENCE, 16) SOUTH 29 DEGREES 25 MINUTES 25 SECONDS WEST 144.75 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 17) SOUTH 85 DEGREES 16 MINUTES 34 SECONDS WEST 60.66 FEET TO DRILL HOLE, SET; THENCE, 18) SOUTH 64 DEGREES 49 MINUTES 45 SECONDS WEST 23.48 FEET TO THE POINT AND PLACE OF BEGINNING. THIS PROPERTY IS KNOWN AS LOT C AS SHOWN ON A MAP ENTITLED FINAL PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PARK, FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7,1989 AS MAP NO. 4767. TRACT 1 EASEMENT PARCEL: TOGETHER WITH THE BENEFITS OF THAT CERTAIN DECLARATION OF COVENATS, CONDITIONS AND RESTRICTIONS FOR AMERICAN ENTERPRISE PARK DATED MARCH 13, 1989 AND RECORDED MAY 26, 1989 IN DEED BOOK 3134, PAGE 189. TOGETHER WITH THOSE RIGHTS AS ESTABLISHED IN THAT CERTAIN BASEMENT AGREEMENT AMONG WU/LH 100 AMERICAN L.L.C., WU/LH 200 AMERICAN L.L.C., WU/LH 300 A,MEROCAN L.L.C., WU/LH 400 AMERICAN L.L.C AND WU/LH 500 AMERICAN L.L.C, DATED FEBRUARY 25, 2008, RECORDED MARCH 6, 2008 IN THE MORRIS COUNTY CLERKS OFFICE IN DEED BOOK 21030, PAGE 867. TRACT 2 FEE PARCEL: BEGINNING AT AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN. SET IN THE WESTERLY SIDELINE OF NEW JERSEY STATE HIGHWAY ROUTE NO. 178, UNIMPROVED, WHERE THE SAME IS INTERSECTED 3Y THE DIVISION LINE BETWEEN LOT D AND LOT E AS SHOWN ON FINAL PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PARK, -24- |
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FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7, 1989 AS MAP NO. 4767, DISTANT THE FOLLOWING THREE COURSES MEASURED ALONG SAID SIDELINE FROM THE INTERSECTION OF ROUTE 178 WITH THE WESTERLY SIDELINE OF THE AMERICAN ROAD AS CREATED BY FINAL PLAT, PROPERTY OF SOUTH CRESCENT PROPERTIES INC., FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JULY 18, 1977 AS MAP NO. 3616, A) NORTH 27 DEGREES 50 MINUTES 48 SECONDS WEST 57.59 FEET TO A POINT; THENCE, B) NORTH 26 DEGREES 01 MINUTE 59 SECONDS WEST 678.61 FEET TO A POINT; THENCE, C) NORTH 31 DEGREES 28 MINUTES 35 SECONDS WEST 470.65 FEET TO THE TRUE POINT AND PLACE OF BEGINNING; THENCE, 1) ALONG LOT D, SOUTH 58 DEGREES 31 MINUTES 25 SECONDS WEST 50.00 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 2) CONTINUING ALONG LOT D, NORTH 31 DEGREES 24 MINUTES 21 SECONDS WEST 59.76 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 3) CONTINUING ALONG LOT D, SOUTH 57 DEGREES 07 MINUTES 02 SECONDS WEST 490.87 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 4) CONTINUING ALONG LOT D, SOUTH 61 DEGREES 37 MINUTES 40 SECONDS WEST 27.53 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 5) CONTINUING ALONG LOT D, SOUTH 32 DEGREES 16 MINUTES 42 SECONDS WEST 20.41 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET IN THE LINE OF LOT C AS SHOWN ON SAID FILED MAP; THENCE, 6) ALONG LOT C, NORTH 57 DEGREES 43 MINUTES 18 SECONDS WEST 36.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 7) CONTINUING ALONG LOT C, NORTH 29 DEGREES 17 MINUTES 58 SECONDS WEST 11.57 FEET TO A POINT; THENCE, 8) CONTINUING ALONG LOT C, NORTH 32 DEGREES 52 MINUTES 58 SECONDS WEST 162.34 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 9) CONTINUING ALONG LOT C, SOUTH 85 DEGREES 16 MINUTES 40 SECONDS WEST 70.12 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET IN THE EASTERLY SIDELINE OF CONRAIL, FORMERLY NEW JERSEY TRANSIT MORRIS & ESSEX DIVISION, MAIN LINE; THENCE, 10) ALONG CONRAIL, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 62.39 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 11) CONTINUING ALONG CONRAIL, NORTH 77 DEGREES 25 MINUTES 20 SECONDS WEST 105.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 12) CONTINUING ALONG CONRAIL. NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 270.60 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET; THENCE, 13) CONTINUING ALONG CONRAIL, SOUTH 78 DEGREES 33 MINUTES 20 SECONDS EAST 20.82 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET; THENCE, 14) CONTINUING ALONG CONRAIL. NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 230.50 INTERSECTED BY THE DIVISION LINE BETWEEN LANDS HEREINDESCRIBED AND LANDS NOW OR FORMERLY OF JERSEY CENTRAL POWER & LIGHT DESCRIBED IN DEED BOOK G-65 AT PAGE 112; THENCE, 15) ALONG JERSEY CENTRAL POWER & LIGHT, NORTH 85 DEGREES 16 MINUTES 40 SECONDS EAST 130.25 FEET TO AN IRON PIPE; THENCE, 16) CONTINUING ALONG JERSEY CENTRAL POWER & LIGHT. NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 110.38 FEET TO AN IRON PIPE WHERE THE SAME IS INTERSECTED BY OTHER LANDS NOW OR FORMERLY OF JERSEY CENTRAL POWER & LIGHT DESCRIBED IN DEED BOOK G- 52 AT PAGE 89; THENCE, -25- |
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17) CONTINUING ALONG JERSEY CENTRAL POWER & LIGHT, SOUTH 79 DEGREES 06 MINUTES 55 SECONDS EAST 100.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET; THENCE, 18) CONTINUING ALONG JERSEY CENTRAL POWER & LIGHT, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 100.00 FEET TO A POINT IN THE SOUTHERLY LINE OF AN UNNAMED ROAD CONVEYED TO BOROUGH OF MORRIS PLAINS PER DEED BOOK P-53 AT PAGE 107; THENCE, 19) ALONG SAID UNNAMED ROAD, SOUTH 79 DEGREES 06 MINUTES 55 SECONDS EAST 235.14 FEET TO A CONCRETE MONUMENT, SET IN THE WESTERLY SIDELINE OF NEW JERSEY STATE HIGHWAY ROUTE 178; THENCE, 20) ALONG ROUTE 178, SOUTH 32 DEGREES 52 MINUTES 58 SECONDS EAST 669.64 FEET TO AN IRON ROD; THENCE 21) CONTINUING ALONG ROUTE 178, SOUTH 31 DEGREES 28 MINUTES 35 SECONDS EAST 73.85 FEET TO THE POINT AND PLACE OF BEGINNING. THIS PROPERTY IS KNOWN AS LOT E AS SHOWN ON A MAP ENTITLED FINAL PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PARK, FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7,1989 AS MAP NO. 4767. TRACT 2 EASEMENT PARCEL: TOGETHER WITH THE BENEFITS OF THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR AMERICAN ENTERPRISE PARK DATED MARCH 13,1989 AND RECORDED MAY 26,1989 IN DEED BOOK 3134, PAGE 189. TOGETHER WITH THOSE RIGHTS AS ESTABLISHED IN THAT CERTAIN EASEMENT AGREEMENT AMONG WU/LH 100 AMERICAN L.L.C., WU/LH 200 AMERICAN L.L.C., WU/LH 300 AMERICAN L.L.C., WU/LH 400 AMERICAN L.L.C. AND WU/LH 500 AMERICAN L.L.C. DATED FEBRUARY 25,2008, RECORDED MARCH 6, 2008 IN THE MORRIS COUNTY CLERKS OFFICE IN DEED BOOK 21030, PAGE 867. BEING ALSO KNOWN AS (REPORTED FOR INFORMATIONAL PURPOSES ONLY): TRACT 1: Block 11, Lot 1.03 on the official tax map of the BOROUGH OF MORRIS PLAINS, County of Morris, State of New Jersey TRACT 2: Block 11, Lot 1.05 on the official tax map of the BOROUGH OF MORRIS PLAINS, County of Morris, State of New Jersey. -26- |
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EXHIBIT B TO MORTGAGE Lessee Date of Lease Coty US LLC October 1, 2012 Immunomedics, Inc. May 22, 1992 -27- |
Exhibit 10.6
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PROMISSORY NOTE $15,100,000.00 April 3, 2013 Morris Plains, New Jersey Loan No. 901000544 1. Promise to Pay. FOR VALUE RECEIVED, the undersigned, WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company, and WUILH 500 AMERICAN L.L.C., a Delaware limited liability company (collectively Borrower), jointly and severally, promise to pay in lawful money of the United States of America to the order of GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation (Lender), at c/o Bank of America, RESF - Servicing, 900 West Trade Street, Suite 650, NC1-026-06-01, Charlotte, North Carolina 28255, or such other place either within or without the State of North Carolina as Lender may designate in writing from time to time, the principal sum of FIFTEEN MILLION ONE HUNDRED THOUSAND DOLLARS ($15,100,000.00), with interest from the date hereof on the unpaid principal balance !it the rate set forth below. 2. Interest. From the date hereof, interest shall accrue on the unpaid principal balance at the rate of THREE AND TWO-TENTHS PERCENT (3.2%) per annum. 3. Payments and Term. (a) Principal and interest shall be due and payable as follows: (i) A payment of all interest to accrue hereon from the Disbursement Date to and including the last day of the month during which the Disbursement Date occurs shall be due and payable on the Disbursement Date. For purposes of this Note, the Disbursement Date shall be the date on which disbursement of loan proceeds occurs. (ii) Monthly payments of interest only in the sum of FORTY THOUSAND TWO HUNDRED SIXTY-SIX DOLLARS AND SIXTY-SEVEN CENTS ($40,266.67) each shall be due and payable on the first day of each calendar month, commencing on June 1, 2013 and continuing on the first day of each calendar month thereafter to and including May 1, 2014. (iii) Monthly payments of principal and interest in the sum of SEVENTY-THREE THOUSAND ONE HUNDRED EIGHTY-SIX DOLLARS AND FIFTY-THREE CENTS ($73,186.53) each shall be due and payable on the first day of each calendar month, commending on June 1, 2014 and continuing on the first day of each calendar month thereafter to and including the Maturity Date (hereinafter defined), such payments being based upon a twenty-flve (25) year amortization period beginning on May 1, 2014. (iv) The entire indebtedness evidenced by this Note, if not sooner paid, shall be due and payable on April 30, 2018 (the Maturity Date). (b) All payments on account of the indebtedness evidenced by this Note shall be first applied to interest, costs and prepayment fees (if any) and then to principal. Interest shall be computed on the basis of a 360- day year consisting of twelve 30-day months. |
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4. Prepayment. This Note may be prepaid in full on a scheduled payment date, upon giving the holder of this Note (Holder) thirty (30) days prior written notice (which notice may be revoked by the Borrower without penalty), by paying, in addition to the outstanding principal balance at the date of prepayment (plus all accrued interest and other sums due under the terms of the Loan Documents, as that term is defined below), a Prepayment Fee. The Prepayment Fee is equal to the greater of: (i) 1% of the principal prepaid (principal outstanding after application of payment due on date of prepayment) at the date of prepayment or (ii) the present value computed on a monthly basis as of the date of prepayment of all future principal and interest payments due under this Note (starting with the first monthly payment due after the prepayment date and including any balloon payments) using the Discount Rate (as defined below) less the principal prepaid. No Prepayment Fee shall be due if this Note is prepaid (a) during the 90 days prior to the Maturity Date or (b) in connection with the application of insurance proceeds or any condemnation award. Except as specifically provided above, Borrower hereby expressly agrees that if, for any reason, a prepayment of any or all of this note is made, whether voluntary or upon or following any acceleration of the maturity date by Lender on account of any Event of Default (as hereinafter defined), including but not limited to any transfer or disposition as prohibited or restricted by the Mortgage (as hereafter defined), then Borrower shall be obligated to pay concurrently therewith, as a prepayment premium, the applicable Prepayment Fee specified above. The prepayment fee shall be due and payable in connection with all such payments, including but not limited to payments made by Borrower or any guarantor after the occurrence of any Event of Default, or payments made from the application of proceeds obtained in connection with any foreclosure or other sale of all or any collateral securing the loan evidenced hereby. Borrower agrees that Lenders agreement to make the loan on the terms and conditions set forth in this Note constitutes adequate consideration, given individual weight by Borrower, for this agreement and acknowledges that, in making the loan on the terms and conditions set forth herein, Lender has given individual weight to the consideration afforded by this agreement. Discount Rate (defmed) The Discount Rate (DR) is the rate which when compounded monthly, is equivalent to the Reinvestment Rate (RR) when compounded semi-annually. The DR shall be rounded to the nearest one hundredth of one percent. For example, if the RR equaled 2.335%, then the DR would equal 2.34%. This is further defined as: DR = ((((1+RR/2)^2)^(1/12))-1)*12 Reinvestmeru Rate (defined) The Reinvestment Rate (RR) is the yield in percent per annum of the Treasury Constant Maturity Nominal l0 (TCM) that equals the remaining Weighted Average Life (WAL) of the Note as published 5 business days prior to the date of prepayment in the Federal Reserve Statistical Release H.l5 Selected Interest Rates. If the remaining WAL of this Note does not equal a.ny of the published TCMs then the Reinvestment Rate will be determined by interpolating linearly between two TCMs, one having a maturity as close as possible to, but greater than the remaining WAL of this Note and one having a maturity as close as possible to, but less than the remaining WAL of this Note. The RR shall be rotmded to the nearest one hundredth of one percent. |
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For example, if the remaining WAL of the Note on June 24, 2004 was 1.38 years then the RR would equal 2.335%. In this example the RR is arrived at by interpolating the 1-year and 2-year TCMs. On June 24, 2004 the 1-year TCM equaled 2.11% and the 2-year TCM equaled 2.74%. In the event the Federal Reserve Statistical Release H.15 Selected Interest Rates is discontinued or no longer published, the Holder of this Note shall, in its sole discretion, designate some other daily financial or governmental publication of national circulation to determine the Reinvestment Rate which moost nearly corresponds to the yield of the TCM. Weighted Average Life (defined) The Weighted Average Life (WAL) of the Note is the average number of years that each dollar ofun paid principal due on the Note remains outstanding. WAL is computed as the weighted-average time to the receipt of all future cash flows, using as the weights the dollar amounts of the principal paydowns. The WAL shall be rounded to the second decimal place (for example: 1.38). For example, for a loan with 17 months remaining and principal payments as detailed in Column B in the chart below, the WAL would equal 1.38 years. A B C Month X Principal Payment = Weighted Principal Payment 1 X $4,495 = $4,495 2 X $4,521 = $9,042 3 X $4,547 = $13,641 4 X $4,574 = $18,295 5 X $4,600 = $23,002 6 X $4,627 = $27,763 7 X $4,654 = $32,579 8 X $4,681 = $37,451 9 X $4,709 = $42,378 10 X $4,736 = $47,361 11 X $4,764 = $52,401 12 X $4,792 = $57,498 13 X $4,819 = $62,653 14 X $4,848 = $67,866 15 X $4,876 = $73,138 16 X $4,904 = $78,469 17 X $1,577,601 = $26,819,214 Totals: $1,652,747 $27,467,245 Column C = Column A X Column B WAL = (Total Column C / Total Column B) / 12 Lender shall notify Borrower of the amount and the basis of determination for the Prepayment Fee, which absent manifest error, shall be conclusive and binding upon Lender and Borrower. Borrower expressly understands, acknowledges and agrees that (i) the Prepayment Fee is fair and reasonable and represents a reasonable estimate of the fair compensation for the loss that Lender shall sustain due to the early pre-payment of the outstanding principal under the Note, (ii) its agreement to pay the Prepayment Fee is a material inducement to Lender to make the loan, without which inducement Lender would not make the loan and (iii) the Prepayment Fee shall be paid without prejudice to the right of Lender to collect and retain any and all other amounts or charges provided to be paid hereunder or under the other Loan Documents. 5. Events of Default. -3- |
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(a) The occurrence of any one or more of the following shall constitute an Event of Default under this Note: (i) Borrowers failure to make any payment of principal or interest when due hereon, followed by Borrowers failure to make such payment within ten (10) days after written notice thereof given to Borrower by Lender; provided, however, that Lender shall not be obligated to give Borrower written notice prior to exercising its remedies with respect to such default if Lender had previously given Borrower during the previous twelve (12) month period a notice of default for failure to make a payment of principal or interest hereon. (ii) The occurrence of any other Event of Default, as that term is defined in the Mortgage referred to in the Security; Loan Documents section below. (b) Time is of the essence. Upon the occurrence of any Event of Default under this Note, (i) the entire principal balance hereof and all accrued interest shall, at the option of Lender, without notice, bear interest at a rate from time to time equal to five (5) percentage points over what would otherwise be the Note rate (or the maximum rate permitted by applicable law if that is less) from the date of occurrence of the event or circumstance giving rise to the Event of Default until the Event of Default is cured and (ii) the entire principal balance hereof and all accrued interest shall immediately become due and payable at the option of Lender, without notice. Lenders failure to exercise any option hereunder shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. Borrower acknowledges that, during the period of time that any payment of principal, interest or other amount due under this Note is delinquent, Lender will incur costs, expenses and losses attributable to such things as its loss of use of the moneys due and to the adverse impact on its ability to meet its other obligations and to avail itself of other opportunities. Borrower further acknowledges that the exact amount of the costs, expenses and losses would be extremely difficult or impractical to ascertain. Borrower and Lender agree that the increased rate of interest provided for in clause (b)(i) above represents a fair and reasonable estimate of the costs, expenses and losses Lender will incur by reason of any such delinquency in payment. (c) At Lenders option, any written notice of default required to be given to Borrower hereunder may be given in the form of a statutory notice of default under the laws of the State of New Jersey relating to foreclosures of mortgages. 6. Late Charges. Borrower acknowledges that, if any monthly installment payment under this Note is not made when due (other than a balloon payment due upon maturity), Lender will as a result thereof incur costs not contemplated by this Note, the exact amount of which would be extremely difficult or impracticable to ascertain. Such costs include without limitation processing and accounting charges. Accordingly, except as may otherwise be mandated by applicable law, Borrower hereby agrees to pay to Lender with respect to each monthly installment payment which is not received by Lender within five (5) days of (and including) the date when due (four (4) days after the due date) a late charge equal to FIVE PERCENT (5%) of the amount of the payment. Borrower and Lender agree that such late charge represents a fair and reasonable estimate of the costs Lender will incur by reason of such late payment. Acceptance of such late charge by Lender shall in no event constitute a waiver of the default with respect to the overdue amount, and shall not prevent Lender from exercising any of the other rights and remedies available to Lender. 7. Security: Loan Documents. This Note is secured, among other documents, by a Mortgage, Assignment of Rents and Leases, and Security Agreement (the Mortgage) encumbering property (the Property) located in Morris County, New Jersey. This Note, the Mortgage and all other related instruments and documents are collectively referred to herein as the Loan Documents. -4- |
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8. Collection Expenses. If there occurs any event or circumstance which is or which with the passage of time, the giving of notice, or both, will constitute an Event of Default, and in connection therewith Lender consults an attorney regarding the enforcement of any of its rights or remedies under this Note or any of the other Loan Documents, or if this Note is placed in the hands of an attorney for collection, or if suit is brought to enforce this Note or any of the other Loan Documents, Borrower promises to pay Lender on demand for all fees, costs and expenses, including reasonable attorneys fees, incurred in connection therewith. Such fees, costs and expenses shall include those incurred with or without suit and those incurred at or in preparation for any trial, appeal or review or in any proceedings under any present or future federal bankruptcy act or state receivership law, and any post-judgment collection proceedings. 9. Waivers. Except as expressly provided in this Note to the contrary, Borrower hereby waives presentment, protest and demand for payment, notice of protest, demand, dishonor and nonpayment of this Note. 10. Joint and Several Liability. The liability of each of the undersigned is joint and several with respect to all obligations hereunder. 11. Limitation of Liability. (a) Borrower is hereby released from all personal liability under the Loan Documents to the extent such release does not operate to invalidate the lien of the Mortgage. In the event of foreclosure of the Mortgage or other enforcement of the collection of the indebtedness evidenced by this Note, Lender agrees, and any holder hereof shall be deemed by acceptance hereof to have agreed, not to take a deficiency judgment against Borrower with respect to said indebtedness. (b) Notwithstanding the provisions of paragraph (a) of this Limitation of Liability section, however, Borrower shall be fully and personally liable to the holder of this Note for all claims, demands, damages, losses, liabilities, fines, penalties, fees, liens, costs and expenses, including attorneys fees, suffered or incurred by Lender on account of or in connection with: (i) Waste committed or knowingly permitted to the Property, or fraud or willful misrepresentation committed by Borrower; (ii) The retention of any rental income or other income arising with respect to the Property collected by Borrower after the occurrence of any event or circumstance which is or which with the passage of time, the giving of notice, or both will constitute an Event of Default and prior to the cure (if any) of such event or circumstance, to the extent that any such retained income is not used to pay capital or operating expenses of the Property; (iii) The retention of security deposits or other deposits made by tenants of the Property which are not paid to tenants when due or transferred to Lender or any other party acquiring the Property at a foreclosure sale or any transfer in lieu of foreclosure; (iv) The removal or disposition by Borrower of any personal property or fixtures encumbered by the Mortgage which are not replaced as required by the Mortgage; (v) The misapplication of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage or destruction to any portion of the Property or any building or buildings located thereon; -5- |
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(vi) Any property taxes or assessments which accrued prior to the earlier of (i) Lender, its nominee or any bidder at a foreclosure sale taking title to the Property or (ii) Borrowers tender to Lender of a deed to the Property in recordable and insurable form; (vii) Borrowers failure to maintain in full force and effect hazard, liability and other insurance coverages as required by the Mortgage; and (viii) Borrowers failure to perform any obligations under the Environmental Indemnity executed in connection with this Note, and any other breach of covenant, breach of warranty or misrepresentation by Borrower under the Mortgage, the Environmental Indemnity or any of the other Loan Documents with respect to hazardous, toxic and dangerous wastes, substances and materials. There will be no liability to the Borrower for such wastes, substances and materials which are introduced to the Property subsequent to a permitted transfer of the Property by Borrower or to the Lenders acquisition of title as a result of foreclosure or deed in lieu of foreclosure (the date of such transfer or acquisition being referred to as the Transfer Date); provided, however, the Borrower shall bear the burden of proof that the introduction and initial release of such wastes, substances and materials (i) occurred subsequent to the Transfer Date, (ii) did not occur as a result of any action of Borrower, and (iii) did not occur as a result of continuing migration or release of any such waste, substance or material introduced prior to the Transfer Date in, on, under or near the Property. Nor shall Borrower be entitled to the benefits of the provisions of paragraph (a) of this Limitation of Liability section upon the occurrence of any one or more of the events described in clauses (A), (B) or (C) below (the events described in clauses (A), (B) and (C) below being hereinafter collectively referred to as Full Recourse Events): (A) Without Lenders prior written consent, the Property or any part thereof or interest therein is encumbered by any consensual lien or encumbrance other than that of the Mortgage; provided, however, that, for purposes of this clause (A), the lien or encumbrance of general property taxes or special assessments or of persons supplying labor or materials to or in connection with the Property shall not be deemed to be consensual in nature; or (B) Without Lenders prior written consent, the Property or any part thereof or interest therein is sold (by contract or otherwise), conveyed or otherwise transferred; or (C) The filing of any bankruptcy or insolvency proceeding by Borrower. Upon the occurrence of any one or more Full Recourse Events, the provisions of paragraph (a) of this Limitation of Liability section shall immediately and automatically be of no further force or effect, and Borrower shall thereupon and thereafter have personal liability on this Note without regard to the provisions of paragraph (a) of this Limitation of Liability section. (c) The limitations on personal liability contained in paragraph (a) of this Limitation of Liability section are not intended and shall not be deemed to constitute a forgiveness of the indebtedness evidenced by this Note or a release of the obligation to repay said indebtedness according to the terms and provisions hereof, but shall operate solely to limit the remedies otherwise available to the holder hereof for the enforcement and collection of such indebtedness. (d) As used in this Limitation of Liability section, the term Borrower includes (i) Borrower (and each of them, if more than one) and (ii) all general partners of any Borrower which is a general or limited partnership. The personal liability hereunder of all persons included with the term Borrower shall be joint and several. (e) The provisions of this Limitation of Liability section shall control over any conflicting provisions of this Note, the Mortgage or any other instrument or document executed in connection with the indebtedness evidenced hereby. -6- |
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12. Limitation on Interest and Loan Charges. Interest, fees and charges collected or to be collected in connection with the indebtedness evidenced hereby shall not exceed the maximum, if any, permitted by any applicable law. If any such law is interpreted so that said interest, fees and/or charges would exceed any such maximum and Borrower is entitled to the benefit of such law, then: (A) such interest, fees and/or charges shall be reduced by the amount necessary to reduce the same to the permitted maximum; and (B) any sums already collected from Borrower which exceeded the permitted maximum will be refunded. Lender may choose to make the refund either by treating the payments, to the extent of the excess, as prepayments of principal or by making a direct payment to Borrower. No prepayment premium shall be assessed on prepayments under this paragraph. The provisions of this paragraph shall control over any inconsistent provision of this Note or the Mortgage or any other document executed in connection with the indebtedness evidenced hereby. 13. Governing Law. This Note shall be construed, enforced and otherwise governed by the laws of the State of New Jersey. 14. Lender. As used herein, the term Lender includes any subsequent holder of or participant in this Note. 15. Seal and Effective Date. This Promissory Note is an instrument executed under seal and is to be considered effective and enforceable as of the date set forth on the first page hereof, independent of the date of actual execution and delivery. 16. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, LENDER AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR OTHERWISE, IN ANY WAY RELATED TO THIS NOTE. BORROWER ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDERS EXTENDING CREDIT TO MAKER THAT THE LENDER WOULD NOT HAVE EXTENDED CREDIT WITHOUT THIS JURY TRIAL WAIVER, THAT BORROWER HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL WAIVER TO UNDERSTAND THE LEGAL EFFECT OF THIS WAVIER, AND NO WAIVER OR LIMITATION OF LENDERS RIGHTS UNDER THIS PARAGRAPH SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON LENDERS BEHALF. Borrower acknowledges that the above paragraph has been expressly bargained for by Lender as part of the loan evidenced hereby and that, but for Borrowers agreement and the agreement of any other person liable for payment hereof thereto, Lender would not have extended the loan for the term and with the interest rate provided herein. [Signatures Begin On Following Page] -7- |
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WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland limited corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President WU/TH 500 AMERICAN L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President |
Exhibit 10.7
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Loan No. 901000544 UNCONDITIONAL GUARANTY THIS UNCONDITIONAL GUARANTY (this Guaranty) is made this 3rd day of April, 2013, by GTJ REALTY, LP, a Delaware limited partnership (Guarantor) to and for the benefit of GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation (Lender). BACKGROUND WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company, and WU/LH 500 AMERICAN L.L.C., a Delaware limited liability company (collectively, Borrower) have applied to Lender for a loan (the Loan) in the principal amount of FIFTEEN MILLION ONE HUNDRED THOUSAND DOLLARS ($15,100,000.00). The Loan will be evidenced by a Promissory Note (the Note) in the Loan amount and will be secured by a Mortgage, Assignment of Rents and Leases, and Security Agreement (the Mortgage) on real property located in Morris County, New Jersey, commonly described as 300 and 500 American Road, Morris Plains, New Jersey 07950. An Environmental Indemnity (the Environmental Indemnity) has also been executed by Borrower and Guarantor in connection with the Loan. The Note, the Mortgage and all other documents (other than the Environmental Indemnity) executed in connection with the Loan are hereinafter collectively referred to as the Loan Documents. All moneys due or which may become due under the Loan Documents, or any of them, and the due and punctual performance and observance of all the other terms, covenants and conditions of the Loan Documents, whether according to the present terms of the Loan Documents or at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time, or to any change or changes in the terms, covenants and conditions of the Loan Documents, are hereinafter collectively referred to as the Indebtedness. The Loan is conditioned upon Guarantors execution and delivery to Lender of this Guaranty. NOW, THEREFORE, in consideration of benefits to Guarantor from Borrower, the receipt and sufficiency of which are hereby acknowledged by Guarantor, and to induce Lender to make the Loan to Borrower, Guarantor agrees as follows: 1. Unconditional Guaranty of Payment. (a) Guarantor unconditionally, absolutely and irrevocably guarantees the due and punctual payment of all moneys due or which may become due to Lender by Borrower in connection with the Loan for any and all claims, demands, damages, losses, liabilities, fines, penalties, fees, liens, costs and expenses, including attorneys fees, suffered or incurred by Lender on account of or in connection with: (i) Waste committed or knowingly permitted to the property encumbered by the Mortgage, or fraud or willful misrepresentation committed by Borrower; (ii) The retention by Borrower of any rental income or other income arising with respect to the property encumbered by the Mortgage collected by Borrower after the occurrence of an Event of Default, as that term is defined in the Note and prior to the cure (if any) of such default, to the extent that any such retained income is not used to pay capital or operating expenses of said property; (iii) The retention of security deposits or other deposits made by tenants of the property encumbered by the Mortgage which are not paid to tenants when due or transferred to Lender or any other party acquiring the property at a foreclosure sale or any transfer in lieu of foreclosure; (iv) The removal or disposition by Borrower of any personal property or fixtures encumbered by the Mortgage which are not replaced as required by the Mortgage; |
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(v) The misapplication by Borrower of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage or destruction to any portion of the property encumbered by the Mortgage or any building or buildings located thereon; (vi) Any property taxes or assessments which accrue prior to the earlier of (i) Lender, its nominee or any bidder at a foreclosure sale taking title to the property encumbered by the Mortgage or (ii) Borrowers tender to Lender of a deed to the property encumbered by the Mortgage in recordable and insurable form; (vii) Borrowers failure to maintain in full force and effect hazard, liability and other insurance coverages as required by the Mortgage; (viii) Any breach of covenant, breach of warranty or misrepresentation by Borrower under the Mortgage or any of the other Loan Documents with respect to hazardous, toxic and dangerous wastes, substances and materials. (b) Upon and at all times following the occurrence of any Full Recourse Event (as defined below), Guarantor unconditionally, absolutely and irrevocably fully guarantees the due and punctual payment of the principal and interest of the Note and the due and punctual payment, performance and observance of all other Indebtedness. (c) As used herein, the term Full Recourse Event means: (i) The encumbrance of the property encumbered by the Mortgage or any part thereof or interest therein by any consensual lien or encumbrance other than that of the Mortgage, without Lenders prior written consent; provided, however, that, for purposes of this clause (i), the lien or encumbrance of general property taxes or special assessments or of persons supplying labor or materials to or in connection with said property shall not be deemed to be consensual in nature; or (ii) The sale (by contract or otherwise), conveyance or other transfer of the property encumbered by the Mortgage or any part thereof or interest therein, without Lenders prior written consent; or (iii) The filing of any bankruptcy or insolvency proceeding by Borrower. This is a guaranty of payment, not of collection. If the amount outstanding under the Loan or any other moneys due or which may become due under the Note or any of the other Loan Documents is determined by a court of competent jurisdiction, that determination shall be conclusive and binding on Guarantor, regardless of whether Guarantor was a party to the proceeding in which such determination was made or not. 2. Acknowledgements, Representations And Warranties. (a) Guarantor acknowledges and agrees that: (i) Guarantor either has reviewed, or has had an opportunity to review, the Loan Documents, and is otherwise fully familiar with the terms of the Loan; (ii) This Guaranty constitutes an obligation to Lender which is separate and distinct from the obligation of Borrower to Lender under the Loan Documents; (iii) Guarantor is signing this Guaranty as an inducement to Lender to make the Loan, and further acknowledges that Lender would not make the Loan without this Guaranty. (b) Guarantor represents and warrants to Lender as follows: 2 |
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(i) Guarantor is either financially interested in Borrower or will receive other benefits from Borrower as a result of this Guaranty; and (ii) If Guarantor is married, this Guaranty is made on behalf of and shall bind Guarantor and his or her marital community. 3. Waivers By Guarantor And Rights Of Lender. Guarantor agrees that Lender may deal exclusively with Borrower in all matters relating to the Loan without notice to or the approval of Guarantor. It is intended that, subject to the limitations of paragraph 1 above, Guarantor shall remain unconditionally, absolutely and irrevocably liable hereunder for payment and performance of the Indebtedness regardless of any act or omission which might otherwise directly or indirectly result, by operation of law or otherwise, in the discharge or release in whole or in part of Borrower, Guarantor or any other person, or the discharge, release or impairment of any collateral (the Collateral) now or hereafter held as security for any of the obligations under the Loan Documents or this Guaranty. Without limiting the generality of the foregoing, Guarantor hereby waives the following and agrees that Lender may do or fail to do any of the following one or more times, without notice to or the approval of Guarantor, all without diminishing, altering or otherwise affecting the unconditional, absolute and irrevocable liability of Guarantor hereunder: (a) Guarantor waives notice of Lenders acceptance of this Guaranty; (b) Guarantor waives notice of Lenders advances of Loan funds, extension of credit to Borrower and any payment of obligations of Borrower; (c) Guarantor waives notice of default under the Loan Documents; (d) Lender may extend, renew, accelerate or otherwise change the time for payment and performance of any of Borrowers obligations under the Loan Documents and may otherwise modify and change the terms, conditions and covenants of the Loan Documents, including without limitation increase or decrease of the rate of interest on the Loan, provided, however, that nothing in this clause (d) is intended to grant Lender the right to make any such modification or change without the approval of Borrower unless Lender has the right to do so without Borrowers approval under the Loan Documents or as a matter of law; (e) Lender may release Borrower, any Guarantor or any other person now or hereafter having any liability under the Loan Documents; (f) Lender may take and hold Collateral for payment and performance of the Indebtedness, and may release, surrender, substitute, take additional, or exchange, any such Collateral Lender now holds or may later acquire; (g) Lender does not have to marshal assets and may direct the order or manner of sale of the Collateral as Lender in its discretion may determine; (h) Lender may apply any money or Collateral to the repayment of any obligations due to Lender under the Loan Documents in any order Lender in its discretion may determine; (i) Lender may forbear from pursuing Borrower, any other guarantor or any other person, or forbear from foreclosing or otherwise realizing upon any Collateral or other guaranty; (j) Lender may impair or fail to perfect a security interest in any Collateral; (k) Lender may sell Collateral in any manner Lender in its discretion may determine, without notice to Guarantor and whether or not such sale is commercially reasonable; 3 |
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(I) Guarantor waives any defense arising out of the absence, impairment, or loss of any or all rights of recourse, reimbursement, contribution, subrogation or any other right or remedy of Guarantor against Borrower, any other guarantor, or any other person to recover amounts which Guarantor is obligated to pay under this Guaranty; (m) Guarantor waives any defense based upon election of remedies and any anti-deficiency statute, it being intended that this Guaranty shall survive any and all realization upon Collateral. Such waiver shall include without limitation any defense that a foreclosure of Collateral, whether judicial or nonjudicial, discharged Guarantors obligations under this Guaranty; (n) Guarantor waives any defense arising by reason of any invalidity, ineffectiveness or unenforceability of all or any portion of the Loan Documents or on the basis of any other defense (other than full payment in cash of any monetary obligation or full performance of any other obligation) available to Borrower, any other guarantor or any other person; (o) Guarantor waives any defense arising out of lack of diligence or out of delay in enforcement, collection or realization under the Loan Documents; (p) Guarantor waives demand for payment, demand for performance, notice of non-payment, notice of non-performance, presentment, protest, notice of dishonor, and indulgences and notices of every other kind; and (q) Guarantor hereby expressly waives: (i) any defense arising because of Lenders election, in any proceeding instituted under the Federal Bankruptcy Code, of any application of Section 1111(b)(2) of the Federal Bankruptcy Code; and (ii) any defense based on any borrowing or grant of a security interest under Section 364 of the Federal Bankruptcy Code. 4. Lenders Right Not To Proceed Against Borrower. Other Person Or Collateral: Lenders Remedies. This Guaranty may be enforced against Guarantor without attempting to collect (or without exhausting its efforts to collect) from Borrower, any other guarantor or any other person who may be liable for Borrowers obligations, and without attempting to enforce (or exhausting its efforts to enforce) Lenders rights in any Collateral. Lender may exercise its remedies available under this Guaranty and the Loan Documents and available at law and in equity in such order as Lender in its discretion may determine. Lender may join Guarantor in any suit in connection with the Loan Documents or may proceed against Guarantor in aseparate action. If suit, sale, foreclosure or other remedy is availed of, only the net proceeds therefrom, after deducting all charges and expenses of any kind and nature whatsoever, shall be applied to the reduction of the Indebtedness, and Lender shall not be required to institute or prosecute proceedings to recover any deficiency as a condition of payment under or enforcement of this Guaranty. At any sale of Collateral, Lender may, at its discretion, purchase all or any part of such Collateral and apply against the amount bid therefor an equal amount of the indebtedness. 5. Bankruptcy And Assignment Of Rights. Guarantors obligation to make payment under the terms of this Guaranty shall not be impaired, modified, changed, released or limited in any manner by any impairment, modification, change, release, defense or limitation of the liability of Borrower or of a receiver, trustee, debtor in possession or estate under any bankruptcy, receivership or insolvency proceeding. If any payment made by Borrower is reclaimed in a bankruptcy or receivership proceeding, Guarantor shall, subject to the limitations of paragraph 1 above, pay to Lender the dollar amount of the reclaimed. Guarantor hereby assigns to Lender all rights Guarantor may have in any proceeding involving Borrower under any federal bankruptcy act or state receivership proceedings, whether or not such rights relate to this Guaranty. Such assignment shall not diminish, alter or otherwise affect Guarantors liability under this Guaranty. 6. Guarantors Duty To Keep Informed Of Borrowers And Others Financial Condition. Guarantor is now adequately informed of Borrowers financial condition. Guarantor has established adequate means of obtaining, and will obtain from Borrower in the future, all financial and other information regarding Borrower, any other 4 |
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guarantor, any other person and the Loan as is deemed appropriate by Guarantor. Lender shall have no obligation, now or in the future, to provide any such information to Guarantor. 7. Survival of Certain Indemnities and Obligations. Guarantor acknowledges that, to the extent permitted by law, certain obligations of Borrower under the Loan Documents, including without limitation indemnity obligations relating to hazardous substances, shall survive payment of the Indebtedness and foreclosure of Collateral. Guarantor covenants and agrees that, to the extent permitted by law and subject to the limitations of paragraph 1 above, Guarantors guaranty of such obligations of Borrower shall also survive payment of the Indebtedness and foreclosure of Collateral. 8. Waiver Of Right Of Subrogation. Until the Indebtedness shall have been paid and performed in full, Guarantor shall have no right of subrogation, and Guarantor waives any right to enforce any remedy which Lender now has or may hereafter have against Borrower, any other guarantor or any other person, and waives any benefit of, and any right to participate in, any of the Collateral. 9. Subordination Of Debt. Any debt of Borrower now or hereafter held by Guarantor is hereby subordinated to the Indebtedness, and such debt, if Lender so requests, shall be collected, enforced and received by Guarantor as trustee for Lender and be paid over to Lender on account of the Indebtedness, but without reduction or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty. 10. Collection Expenses. Guarantor agrees to reimburse Lender on demand for all reasonable legal fees and other costs and expenses incurred by Lender in collecting, enforcing or defending this Guaranty, together with interest thereon from date of disbursement at the default rate of interest stated in the Note. Such fees, costs and expenses shall include those incurred with or without suit and those incurred at or in preparation for any trial, appeal or review, or in any proceedings under any present or future federal bankruptcy act or state receivership law and any post-judgment collection proceedings. 11. Payment Of Loan: Effect Of Bankruptcy. Except as otherwise provided in paragraphs 3 and 7 above, this Guaranty shall terminate upon payment and performance in full of the Indebtedness; provided, however, that, subject to the limitations of paragraph 1 above, it shall be automatically reinstated if any payment is reclaimed in a bankruptcy or receivership proceeding, until Guarantor pays Lender the amount reclaimed or the amount is otherwise paid to Lender and is not subject to further reclamation. 12. Financial Statements: Credit Reports. Guarantor will furnish to Lender, within twenty (20) days after Lenders request therefor, a complete and current financial statement, in reasonable detail and certified as correct by Guarantor. Guarantor hereby irrevocably authorizes Lender to obtain credit reports on Guarantor on one or more occasions during the term of the Loan. 13. Binding Effect. This Guaranty shall be binding upon and enforceable against Guarantor, Guarantors legal representatives, successors and assigns, and shall inure to the benefit of and may be enforced by Lender and Lenders successors and assigns. 14. Assignment. Lender may assign the Loan Documents and this Guaranty, or any of them, in whole or in part, and may grant participations therein, without notice to Guarantor and without affecting Guarantors liability under this Guaranty. 15. Construction. Unless some other meaning and intent is apparent from the context, the plural shall include the singular and vice versa, and masculine, feminine and neuter words shall be used interchangeably. 16. Governing Law: Jurisdiction. This Guaranty shall be governed by and construed according to the laws of the State of New Jersey. Guarantor consents to the jurisdiction of the courts of the State of New Jersey. 17. Joint And Several Liability: Independent Obligations. The obligations under this Guaranty of all persons included within the term Guarantor are joint and several. The obligations of each Guarantor are 5 |
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independent of those of Borrower, any other guarantor and any other person, and a separate action or actions may be brought and prosecuted against Guarantor, or any of them, whether action is brought against any other Guarantor, Borrower or any other person. 18. Entire Agreement: Modifications. This agreement constitutes the entire understanding between Lender and Guarantor and no course of prior dealing between the parties, no usage of trade, and no parol or extrinsic evidence of any nature shall be used to supplement or modify the terms of this Guaranty. This Guaranty may be changed, modified or supplemented only through a writing signed by Guarantor and Lender. 19. Invalid Provisions. If any provision of this Guaranty is invalid, illegal or unenforceable, such provision shall be considered severed from the rest of this Guaranty and the remaining provisions shall continue in full force and effect as if the invalid provision had not been included. 20. Seal And Effective Date. This Guaranty is an instrument executed under seal and is to be considered effective and enforceable as of the date set forth on the first page hereof, independent of the date of actual execution. IN WITNESS WHEREOF, Guarantor hereby executes this Guaranty as of the day and year first above written. GUARANTOR: GTJ REALTY, LP, a Delaware limited partnership By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: /s/ Louis Sheinker Name: Louis Sheinker Title: President 6 |
Exhibit 10.8
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Exhibit 99.8 Loan No. 901000544 ENVIRONMENTAL INDEMNITY THIS ENVIRONMENTAL INDEMNITY (this Indemnity) is given this ,.3rd day of April, 2013, by, WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company, (collectively, Borrower), and GTJ REALTY, LP, a Delaware limited partnership (Guarantor), to and for the benefit of GENWORTH LIFE INSURANCE COMPANY, a Delaware corporation (Lender). Borrower and Guarantor are individually and collectively referred to in this Indemnity as Indemnitor. RECITALS Borrower has applied to Lender for a loan (Loan) in the amount of FIFTEEN MILLION ONE HUNDRED THOUSAND DOLLARS ($15,100,000.00). The Loan will be evidenced by a Promissory Note (Note) and secured by a Mortgage, Assignment of Rents and Leases, and Security Agreement (Mortgage) on real property (Property) located in Morris County, New Jersey, and legally described on Exhibit A. Lender would not be willing to make the Loan without this Indemnity. NOW, THEREFORE, in consideration of the financial benefits to Indemnitor from the Loan, the receipt and sufficiency of which are hereby acknowledged by Indemnitor, and to induce Lender to make the Loan, Indemnitor agrees as follows: 1. Indemnity. To the fullest extent permitted by applicable law, Indemnitor shall defend, protect, hold harmless, and indemnity Lender and its affiliates and their shareholders, directors, officers, employees, attorneys, and agents from and against any and all claims, demands, penalties, fees, liens, damages, losses, expenses, and liabilities arising out of or in any way connected with any alleged or actual past or future presence on, under or about the Property of any Hazardous Substance from any cause whatsoever (collectively Liabilities); it being intended that Indemnitor shall be strictly and absolutely liable without regard to any fault by Indemnitor other than Liabilities directly caused by the willful conduct or gross negligence of Lender or its agents or employees. Hazardous Substance shall mean any hazardous, toxic or dangerous substance, waste or material which is or becomes regulated under any federal, state or local statute, ordinance, rule, regulation or other law now or hereafter in effect pertaining to environmental protection, contamination or clean up, including without limitation any substance, waste or material which now or hereafter is (A) designated as a hazardous substance under or pursuant to the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.),(B) defined as a hazardous waste under or pursuant to the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), (C) defined as a hazardous substance in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq. .),or (D) defined or listed as a hazardous substance or hazardous waste pursuant to N.J.S.A. § 13:1D-37, a hazardous substance pursuant to N.J.S.A. § 13:1K-8, a hazardous substance pursuant to N.J.S.A.v § 58:10-23.1lb, a hazardous pollutant, pollutant or toxic pollutant pursuant to N.J.S.A. § 58:10A-3, or a hazardous substance pursuant to N.J.S.A. § 58:10A-22. Notwithstanding the foregoing, this Indemnity shall not relate to any Hazardous Substance which is introduced to the Property (A) by Lender, its agents or employees or (B) subsequent to (x) the date of Indemnitors record conveyance of title to the Property, provided that such conveyance is effected upon written consent of Lender and otherwise in compliance with Article IV of the Mortgage, or (y) the date Lender or any third-party purchaser acquires title to the Property as a result of foreclosure or deed in lieu of foreclosure (any such date being hereinafter referred to as the Transfer Date); provided, however, that Indemnitor shall bear the burden of proof that the introduction and initial release of such Hazardous Substance (i) occurred subsequent to the Transfer Date, (ii) did not occurs as a result of any action of Indemnitor, and (iii) did not occur as a result of continuing migration or release of any Hazardous Substance introduced prior to the Transfer Date in, on, under or near the Property. 1 |
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2. Payment: Third Party Claims. All amounts payable under this Indemnity shall be paid within twenty (20) days after Lenders delivery of written demand to Indemnitor. Any amount not paid when due shall thereafter bear interest at ten percent (10%) per annum (or the maximum rate permitted by applicable law if that is less). In the event of any disputed third party claim subject to this Indemnity, Lender shall have the right to choose its own legal counsel (at Indemnitors expense) and make all decisions relating to the dispute, including without limitation the litigation strategy and the terms of any settlement. 3. Default: Remedies. The occurrence of any of the following shall constitute an Event of Default under this Indemnity: (a) any breach by Indemnitor of any provision of this Indemnity; or (b) any other failure by Indemnitor to perform when due any obligation on its part to be performed hereunder. Upon the occurrence of a default by Indemnitor under this Indemnity, Lender may, in its sole discretion, (i) declare the same to constitute an event of default under the Mortgage and exercise any and all remedies provided therein for an event of default, (ii) bring a court action to enforce the provisions of this Indemnity, and/or (iii) exercise any other right or remedy available to Lender under any other document or instrument now or hereafter existing or at law or in equity. 4. Subrogation of Indemnity Rights. If Indemnitor fails to perform any of its obligations under this Indemnity, Lender shall be subrogated to any rights Indemnitor may have against any former, present or future owners, tenants or other occupants or users of all or any part of the Property, relating to the matters covered by this Indemnity. 5. Recourse. Indemnitor shall be fully and personally liable for all of Indemnitors obligations under this Indemnity to the full extent of such liability and without regard to the original principal balance of the Loan and shall not be subject to any non-recourse or other limitation of liability provision of the Note or the Mortgage. 6. Independent Obligations: Survival. Indemnitors obligations under this Indemnity are unconditional, unsecured, and separate, independent and distinct from the obligations evidenced by the Note and secured by the Mortgage. No repayment of the Note or discharge, reconveyance or foreclosure of the Mortgage or any other termination of the lien thereof shall terminate or otherwise affect Indemnitors obligations under this Indemnity, which obligations shall, to the fullest extent permitted by applicable law, survive repayment of the Note and reconveyance of the Mortgage, and any sale or other transfer of the Property, whether by sale, foreclosure, deed in lieu of foreclosure, or otherwise. 7. Fees and Expenses. Indemnitor shall reimburse Lender within twenty (20) days of written demand for all reasonable legal fees and other costs and expenses incurred in enforcing this Indemnity, together with interest thereon from the date due until paid at ten percent (10%) per annum (or the maximum rate permitted by applicable law if that is less). Such fees, costs and expenses shall include those incurred with or without suit and in any appeal, any proceedings under any present or future federal bankruptcy act or state receivership, and any post-judgment collection proceedings. 8. Miscellaneous. The obligations under this Indemnity of each Indemnitor shall be joint and several. This Indemnity shall be binding upon Indemnitor and its heirs, representatives, successors and assigns and shall inure to the benefit of Lender and its successors and assigns. This Indemnity shall be governed under the laws of the State of New Jersey. Lenders rights and remedies under this Indemnity shall be in addition to any other rights and remedies available to Lender under any other document or instrument now or hereafter existing or at law or in equity. The failure of Lender to promptly enforce any right or remedy under this Indeminty shall not constitute a waiver thereof and shall not affect or impair the liability Indemnitor. If any provision of this Indemnity is invalid, illegal or unenforceable, such provision shall be considered severed from the rest of this Indemnity and the remaining provisions shall continue in full force and effect as if the invalid provision had not been included. Any notice to Indemnitor under this Indemnity shall be to the address given below, or such other address as may be designated by Indemnitor in writing, and shall be deemed to have been given on the date delivered in the case of personal delivery or, if mailed, three (3) days after the postmark thereof. Any amendment, waiver, discharge or termination of this Indemnity or any provision hereof must be in writing and signed by the party against whom enforcement of the amendment, waiver, discharge or termination is sought. 2 |
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IN WITNESS WHEREOF, Indemnitor hereby executes this Indemnity as of the day and year first above written. INDEMNITOR: WU/LH 300 AMERICAN L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: Name: Title: President WU/LH 500 AMERICAN L.L.C., a Delaware limited liability company By: GTJ Realty, LP, a Delaware limited partnership, Manager By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: Name: Title: President 3 |
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GTJ REALTY, LP, a Delaware limited partnership By: GTJ GP, LLC, a Maryland limited liability company, General Partner By: GTJ REIT, Inc., a Maryland corporation, Manager By: Name: Title: President Address for each Indemnitor: 60 Hempstead Avenue, Suite 718 West Hempstead, New York 11552 4 |
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EXHIBIT A The property referred to in this Environmental Indemnity is situated in the County of Morris, State of New Jersey, and is legally described as follows: THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE BOROUGH OF MORRIS PLAINS, COUNTY OF MORRIS, AND STATE OF NEW JERSEY, AND IS DESCRIBED AS FOLLOWS: TRACT 1 FEE PARCEL: BEGINNING AT AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR., SURVEYOR, NJ #25048, MORRISTOWN, SET IN THE SOUTHERLY LINE OF LANDS HEREINDESCRIBED WHERE THE SAME IS INTERSECTED BY THE EASTERLY LINE OF LANDS NOW OR FORMERLY OF PAR THREE PROPERTIES, INC. AS DESCRIBED IN DEED BOOK 2545 AT PAGE 491, SAID POINT BEING DISTANT 693.92 FEET AS MEASURED IN A NORTHERLY DIRECTION ALONG THE EASTERLY LINE OF PAR THREE PROPERTIES, INC. FROM A DRILL HOLE SET AT ITS INTERSECTION WITH THE NORTHERLY SIDELINE OF EAST HANOVER AVENUE, VARIABLE WIDTH RIGHT OF WAY, AND FROM SAID POINT RUNNING; THENCE, 1) ALONG PAR THREE PROPERTIES, INC., NORTH 74 DEGREES 03 MINUTES 20 SECONDS WEST 276.13 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET IN THE EASTERLY LINE OF LANDS NOW OR FORMERLY OF CONRAIL, FORMERLY NEW JERSEY TRANSIT- MORRIS & ESSEX LINE; THENCE, 2) ALONG CONRAIL, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 920.93 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR., SURVEYOR, NJ #25048, MORRISTOWN, SET WHERE THE SAME IS INTERSECTED BY THE DIVISION LINE BETWEEN LANDS HEREINDESCRIBED AND LANDS NOW OR FORMERLY OF BAKER-FIRESTONE PROPERTIES LIMITED PARTNERSHIP AS DESCRIBED IN DEED BOOK 2765 AT PAGE 517 SAID PROPERTY DESIGNATED AS LOT E AS SHOWN ON A MAP ENTITLED FINAL PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PARK, FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7, 1989 AS MAP NO. 4767; THENCE, 3) ALONG LOT E, NORTH 85 DEGREES 16 MINUTES 40 SECONDS EAST 70.12 FEET TO A MAG NAIL 4) WITH DISC, IDENTIFIED RlCHARD F SMITH JR. PLS25048, SET; THENCE, 5) SOUTH 32 DEGREES 52 MINUTES 58 SECONDS EAST 162.34 FEET TO A POINT; THENCE, 6) ALONG LOT E AND THEN ALONG LOT D AS SHOWN ON THE AFOREMENTIONED FILED MAP, SOUTH 57 DEGREES 43 1 MINUTES 18 SECONDS EAST 284.12 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 7) NORTH 85 DEGREES 16 MINUTES 40 SECONDS EAST 19.68 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET AT A POINT OF CURVATURE IN THE SAME; THENCE, 8) ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 30.00 FEET, A CENTRAL ANGLE OF 40 DEGREES 30 MINUTES 02 SECONDS, AN ARC LENGTH OF 21.21 FEET, SAID CURVE BEARING A CHORD OF SOUTH 74 DEGREES 28 MINUTES 19 SECONDS EAST, A CHORD DISTANCE OF 20.77 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 9) SOUTH 35 DEGREES 46 MINUTES 42 SECONDS WEST 78.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR., SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 5 |
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10) SOUTH 54 DEGREES 13 MINUTES 18 SECONDS EAST 108.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 11) SOUTH 35 DEGREES 46 MINUTES 42 SECONDS WEST 60.00 FEET TO A CORNER IN THE SAME; THENCE, 12) SOUTH 54 DEGREES 13 MINUTES 18 SECONDS EAST 36.00 FEET TO A CORNER IN THE SAME; THENCE, 13) SOUTH 35 DEGREES 46 MINUTES 42 SECONDS WEST 18.00 FEET TO A CORNER IN THE SAME; THENCE, 14) SOUTH 28 DEGREES 13 MINUTES 18 SECONDS EAST 42.00 FEET TO A CORNER IN THE SAME; THENCE, 15) ALONG LOT D AND THEN ALONG LOT A AS SHOWN ON THE AFOREMENTIONED FILED MAP, SOUTH 00 DEGREES 57 MINUTES 07 SECONDS EAST 308.57 FEET TO A CORNER IN THE SAME; THENCE, 16) SOUTH 29 DEGREES 25 MINUTES 25 SECONDS WEST 144.75 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RlCHARD F SMITH JR. PLS25048, SET; THENCE, 17) SOUTH 85 DEGREES 16 MINUTES 34 SECONDS WEST 60.66 FEET TO DRILL HOLE, SET; THENCE, 18) SOUTH 64 DEGREES 49 MINUTES 45 SECONDS WEST 23.48 FEET TO THE POINT AND PLACE OF BEGINNING. THIS PROPERTY IS KNOWN AS LOT C AS SHOWN ON A MAP ENTITLED FINAL PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PARK, FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7,1989 AS MAP NO. 4767. TRACT 1 EASEMENT PARCEL: TOGETHER WITH THE BENEFITS OF THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR AMERICAN ENTERPRISE PARK DATED MARCH 13, 1989 AND RECORDED MAY 26, 1989 IN DEED BOOK 3134, PAGE 189. TOGETHER WITH THOSE RIGHTS AS ESTABLISHED IN THAT CERTAIN EASEMENT AGREEMENT AMONG WU/LH 100 AMERICAN L.L.C., WU/LH 200 AMERICAN L.L.C., WU/LH 300 AMERICAN L.L.C., WU/LH 400 AMERICAN L.L.C. AND WU/LH 500 AMERICAN L.L.C. DATED FEBRUARY 25, 2008, RECORDED MARCH 6, 2008 IN THE MORRIS COUNTY CLERKS OFFICE IN DEED BOOK 21030, PAGE 867. TRACT 2 FEE PARCEL: BEGINNING AT AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET IN THE WESTERLY SIDELINE OF NEW JERSEY STATE HIGHWAY ROUTE NO. 178, UNIMPROVED, WHERE THE SAME IS INTERSECTED BY THE DIVISION LINE BETWEEN LOT D AND LOT E AS SHOWN ON FINAL PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PAP-K, FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7, 1989 AS MAP NO. 4767, DISTANT THE FOLLOWING THREE COURSES MEASURED ALONG SAID SIDELINE FROM THE INTERSECTION OF ROUTE 178 WITH THE WESTERLY SIDELINE OF THE AMERICAN ROAD AS CREATED BY FINAL PLAT, PROPERTY OF SOUTH CRESCENT PROPERTIES INC., FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JULY 18, 1977 AS MAP NO. 3616, A) NORTH 27 DEGREES 50 MINUTES 48 SECONDS WEST 57.59 FEET TO A POINT; THENCE, B) NORTH 26 DEGREES 01 MINUTE 59 SECONDS WEST 678.61 FEET TO A POINT; THENCE, C) NORTH 31 DEGREES 28 MINUTES 35 SECONDS WEST 470.65 FEET TO THE TRUE POINT AND PLACE OF BEGINNING; THENCE, 1) ALONG LOT D, SOUTH 58 DEGREES 31 MINUTES 25 SECONDS WEST 50.00 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 6 |
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2) CONTINUING ALONG LOT D, NORTH 31 DEGREES 24 MINUTES 21 SECONDS WEST 59.76 FEET TO A MAG NAIL WITH DISC, IDENTIFlED RICHARD F SMITH JR. PLS25048, SET; THENCE, 3) CONTINUING ALONG LOT D, SOUTH 57 DEGREES 07 MINUTES 02 SECONDS WEST 490.87 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 4) CONTINUING ALONG LOT D, SOUTH 61 DEGREES 37 MINUTES 40 SECONDS WEST 27.53 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 5) CONTINUING ALONG LOT D, SOUTH 32 DEGREES 16 MINUTES 42 SECONDS WEST 20.41 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET IN THE LINE OF LOT C AS SHOWN ON SAID FILED MAP; THENCE, 6) ALONG LOT C, NORTH 57 DEGREES 43 MINUTES 18 SECONDS WEST 36.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 7) CONTINUING ALONG LOT C, NORTH 29 DEGREES 17 MINUTES 58 SECONDS WEST 11.57 FEET TO A POINT; THENCE, 8) CONTINUING ALONG LOT C, NORTH 32 DEGREES 52 MINUTES 58 SECONDS WEST 162.34 FEET TO A MAG NAIL WITH DISC, IDENTIFIED RICHARD F SMITH JR. PLS25048, SET; THENCE, 9) CONTINUING ALONG LOT C, SOUTH 85 DEGREES 16 MINUTES 40 SECONDS WEST 70.12 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET IN THE EASTERLY SIDELINE OF CONRAIL, FORMERLY NEW JERSEY TRANSIT MORRIS & ESSEX DIVISION, MAIN LINE; THENCE, 10) ALONG CONRAIL, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 62.39 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 11) CONTINUING ALONG CONRAIL, NORTH 77 DEGREES 25 MINUTES 20 SECONDS WEST 105.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED RICHARD F SMITH JR, SURVEYOR, NJ #25048, MORRISTOWN, SET; THENCE, 12) CONTINUING ALONG CONRAIL, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 270.60 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET; THENCE, 13) CONTINUING ALONG CONRAIL, SOUTH 78 DEGREES 33 MINUTES 20 SECONDS EAST 20.82 FEET TO AN IRON ROD WITH, IDENTIIFIED AS AFORESAID, SET; THENCE, 14) CONTINUING ALONG CONRAIL, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 230.50 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET WHERE THE SAME IS INTERSECTED BY THE DIVISION LINE BETWEEN LANDS HEREINDESCRIBED AND LANDS NOW OR FORMERLY OF JERSEY CENTRAL POWER & LIGHT DESCRIBED IN DEED BOOK G-65 AT PAGE 112; THENCE, 15) ALONG JERSEY CENTRAL POWER & LIGHT, NORTH 85 DEGREES 16 MINUTES 40 SECONDS EAST 130.25 FEET TO AN IRON PIPE; THENCE, 16) CONTINUING ALONG JERSEY CENTRAL POWER & LIGHT, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 110.38 FEET TO AN IRON PIPE WHERE THE SAME IS INTERSECTED BY OTHER LANDS NOW OR FORMERLY OF JERSEY CENTRAL POWER & LIGHT DESCRIBED IN DEED BOOK G- 52 AT PAGE 89; THENCE, 17) CONTINUING ALONG JERSEY CENTRAL POWER & LIGHT, SOUTH 79 DEGREES 06 MINUTES 55 SECONDS EAST 100.00 FEET TO AN IRON ROD WITH CAP, IDENTIFIED AS AFORESAID, SET; THENCE, 18) CONTINUING ALONG JERSEY CENTRAL POWER & LIGHT, NORTH 04 DEGREES 43 MINUTES 20 SECONDS WEST 100.00 FEET TO A POINT IN THE SOUTHERLY LINE OF AN UNNAMED ROAD CONVEYED TO BOROUGH OF MORRIS PLAINS PER DEED BOOK P-53 AT PAGE 107; THENCE, 19) ALONG SAID UNNAMED ROAD, SOUTH 79 DEGREES 06 MINUTES 55 SECONDS EAST 235.14 FEET TO A CONCRETE MONUMENT, SET IN THE WESTERLY SIDELINE OF NEW JERSEY STATE HIGHWAY ROUTE 178; THENCE, 20) ALONG ROUTE 178, SOUTH 32 DEGREES 52 MINUTES 58 SECONDS EAST 669.64 FEET TO AN IRON ROD; THENCE 21) CONTINUING ALONG ROUTE 178, SOUTH 31 DEGREES 28 MINUTES 35 SECONDS EAST 73.85 FEET TO THE POINT AND PLACE OF BEGINNING. 7 |
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THIS PROPERTY IS KNOWN AS LOT E AS SHOWN ON A MAP ENTITLED FINAL PLAT FOR SUBDIVISION OF AMERICAN ENTERPRISE PARK, FILED IN THE MORRIS COUNTY CLERKS OFFICE ON JUNE 7,1989 AS MAP NO. 4767. TRACT 2 EASEMENT PARCEL: TOGETHER WITH THE BENEFITS OF THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR AMERICAN ENTERPRISE PARK DATED MARCH 13, 1989 AND RECORDED MAY 26, 1989 IN DEED BOOK 3134, PAGE 189. TOGETHER WITH THOSE RIGHTS AS ESTABLISHED IN THAT CERTAIN EASEMENT AGREEMENT AMONG WU/LH 100 AMERICAN L.L.C., WU/LH 200 AMERICAN L.L.C., WU/LH 300 AMERICAN L.L.C., WU/LH 400 AMERICAN L.L.C. AND WU/LH 500 AMERICAN L.L.C. DATED FEBRUARY 25,2008, RECORDED MARCH 6, 2008 IN THE MORRIS COUNTY CLERKS OFFICE IN DEED BOOK 21030, PAGE867. BEING ALSO KNOWN AS (REPORTED FOR INFORMATIONAL PURPOSES ONLY): TRACT 1: Block 11, Lot 1.03 on the official tax map of the BOROUGH OF MORRIS PLAINS, County of Morris, State of New Jersey TRACT 2: Block 11, LOt 1.05 on the official tax map of the BOROUGH OF MORRIS PLAINS, County of Morris, State of New Jersey. 8 |