HomeMy WebLinkAbout09-4201MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
ATTORNEY I.D. NO. 51520
401 ROUTE 70 EAST, SUITE 100
CHERRY HILL, NJ 08034
(856) 429-5507
ATTORNEY FOR PLAINTIFF
Our File No.: 902.75298
IB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. Qq - IUV/ 0,t'Vbl ILM
COMPLAINT - CIVIL ACTION
COMPLAINT IN MORTGAGE FORECLOSURE
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following pages,
you must take action within twenty (20) days after this compliant and notice are served, by entering a
written appearance personally or by attorney and filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the court without further notice for
any money claimed in the compliant or for any other claim or relief requested by the Plaintiff. You my
lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN
PROVIDE YOU WITH THE INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT
AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
PERSONS AT A REDUCE FEE OR NO FEE.
LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVE
CARLISLE, PA 17013
717-249-3166
AVISO
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las
paginas siguientes, usted tiene veinte (20) dias de plazo a partir de la fecha de la demanda y la
notiticacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la
corte en forma escrita sus defensas o sus objeciones a las demadadas en contra de su persona. Sea
avisado que si usted no se defiende, la corte tomara,medidas y puede continuer la demanda en contra suya
sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandato y requiere que
usted crumpla con todas las provisions de esta demanda. Usted puede perder dinero o sus propiedades o
otros dereches importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE AHOGADO O SI
NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O
LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO
PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIAL LEGAL.
LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVE
CARLISLE, PA 17013
717-249-3166
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
ATTORNEY I.D. NO. 51520
401 ROUTE 70 EAST, SUITE 100
CHERRY HILL, NJ 08034
(856) 429-5507
ATTORNEY FOR PLAINTIFF
Our File No.: 902.75298
1B PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. O S' q a 0 / ?-I T.&.....
COMPLAINT IN MORTGAGE FORECLOSURE
1. Plaintiff is IB Property Holdings LLC, a Delaware LLC authorized to do business in the
Commonwealth of Pennsylvania with its principal place of business located at 4425 Ponce de
Leon Blvd, Coral Gables, FL 33146.
2. The name and last known address of the Defendant(s) is: Samuel D. Chandler, 231 South 8th
Street, Lemoyne, PA 17043.
3. The interest of each individual Defendant(s) is as mortgagor, and/or real owner of the real
property subject to the mortgage described below, or both.
4. On or about June 12, 2008, in consideration of their indebtedness to Silver Hill Financial LLC,
Samuel D. Chandler made, executed and delivered to Silver Hill Financial LLC, a Promissory
Note in the original principal amount of $189,000.00. A true and correct copy of said Note is
attached hereto as Exhibit "A" and incorporated herein by reference.
5. On or about June 12, 2008 Mortgagor(s) made, executed and delivered a Mortgage upon the
premises hereinafter described to Silver Hill Financial LLC subject Mortgage is recorded as
follows:
Office of the Recorder of Deeds in and for Cumberland County
DATE OF MORTGAGE: June 12, 2008
DATE RECORDED: June 19, 2008
INSTRUMENT NO: 200820611
The Mortgage is a matter of public record and is incorporated herein as provided by Pa. R.C.P.
1019(g). A true and correct copy of said Mortgage is attached hereto as Exhibit "B" and
incorporated herein by reference.
6. Plaintiff is the legal holder of the Mortgage by virtue of being either the original Mortgagee, the
legal successor in interest to the original Mortgagee, or the present holder of the Mortgage by
virtue of the following assignments:
ASSIGNOR: Silver Hill Financial LLC
ASSIGNEE: lB Property Holdings LLC, a Delaware LLC
DATE OF ASSIGNMENT: June 15, 2009
RECORDING DATE: Being recorded in the Office of Recorder of
Deeds in and for Cumberland County
The Mortgage is secured by property located at 231 South 8th Street, Lemoyne, PA 17043
which is more particularly described in the legal description attached hereto as Exhibit "C" and
incorporated herein by reference.
8. To further induce Silver Hill Financial, LLC to make the Loan, Samuel D. Chandler executed and
delivered to Silver Hill Financial, LLC a certain Assignment of Leases and rents dated June 12,
2008, which is recorded in the Office of Recorder of Deeds in and for Cumberland County on
June 19, 2008 as Instrument No., 200820611. The Assignment of Leases and Rents was further
assigned to IB Property Holdings LLC, a Delaware LLC on June 15, 2009, same is being
recorded in the Office of Recorder of Deeds in and for Cumberland County.
9,
10.
The Mortgage is in default because the monthly installments of principal and interest and other
charges stated below, all as authorized by the Mortgage, due April 1, 2009 and monthly thereafter
have not been paid, whereby the whole balance of principal and all interest due thereon have
become immediately due and payable forthwith together with late charges, escrow deficit (if any),
and costs of collection including title search fees and reasonable attorney's fees.
The following amounts are due on the Mortgage:
Principal Balance: $187,507.70
8.50 % interest from March 1, 2009 $4,471.54
through June 9, 2009 at $44.27 per day
10.00 % interest from April 6, 2009 $3,385.56
through June 9, 2009 at $52.09 per day
Prepayment Consideration $9,375.39
at 5.00% of Unpaid Principal Balance
Lockout from June 10, 2009 through $64,815.16
June 12, 2013 at $44.27 per day
Late Charges from April 1, 2009 $538.23
through June 9, 2009 at $179.41 per month
Escrow Balance $0.00
Attorney's Fees and Costs $11,557.89
TOTAL AMOUNT DUE $281,651.47
11
12
Interest continues to accrue at the per diem rate of $96.36 for every day after June 15, 2009 that
the debt remains unpaid.
During the course of this litigation costs may continue to accrue, including but not limited to
escrow advances, late charges, attorney's fees, and any other lawful foreclosure cost and fees
expended by the plaintiff.
The attorney's fees set forth above are in conformity with the Mortgage documents and
Pennsylvania Law, and will be collected in the event of a third party purchaser at Sheriff's Sale.
If the Mortgage is reinstated prior to the sheriff sale, reasonable attorney's fees will be charged.
13. The original principal balance of the Mortgage is in excess of $50,000.00 and therefore, Notice of
Intention to Foreclose Mortgage, Pursuant Act 6, 41 P.S. 403, is not applicable.
14. Pursuant to the notice provisions of Act 91, 35 P.S. 1680.403 (c) and the notice provisions of Act
6, 41 P.S. 403, as governed by 12 Pa code Section 31.201 et seq. as amended by Act 160 of 1998
effective February 19, 1999, neither Notice of Intention to Foreclose Mortgage nor Act 91 notice
were sent to Defendant(s), Samuel D. Chandler, because the subject property is not residential
property and therefore such notices were not necessary.
15. Defendant(s) has failed to cure the default and Defendant(s) has failed to meet with the plaintiff
or any of the consumer credit counseling agencies listed in the notice and/or have further failed to
meet the time limitations specified in the notice and/or have been denied assistance from the
Pennsylvania Housing Finance Agency.
16. Notice pursuant to the Fair Debt Collection Practices Act is attached as Exhibit "D".
WHEREFORE, Plaintiff respectfully requests this court to enter judgment IN REM in favor of
Plaintiff and against the within named property of the Defendants in the amount set forth in paragraph ten
(10) of this complaint $281,651.47, plus additional fees and costs expended by the Plaintiff in payment
of taxes, sewer and water rents, claims or charges for insurance costs or repairs and any and all other
advances hereafter made by the Plaintiff, pursuant to the rights and privileges granted under the terms of
the subject mortgage, and for foreclosure and sale of the Mortgaged property, plus 6% legal rate of
interest, from the date of Judgment to the time of sale.
MA
BY: MARTIIAK WEISBERG,
ATTORNEY I.D. NO. 51520
VERIFICATION
The undersigned hereby states that he/she is an authorized officer,
representative or agent for Plaintiff in this action and that he/she is authorized to make
this Verification on behalf of Plaintiff and that the facts set forth in the foregoing
Complaint are taken from records maintained by persons supervised by the
undersigned who maintain the business records of the Mortgage held by Plaintiff, in the
ordinary course of business and that those facts are true and correct to the best of
his/her knowledge, information and belief.
THE UNDERSIGNED UNDERSTANDS THAT FALSE STATEMENTS HEREIN
ARE MADE SUBJECT TO THE PENALTIES OF 18 PA.C.S. 14904 RELATING TO
UNSWORN FALSIFICATION TO AUTHORITIES.
Date:
Name: Karen 31 h
Company: Bay vie Lo Servicing
Title: Assistant Vice President
Exhibit "A "
J
PROMISSORY NOTE
{ PENNSYLVANIA 1
$189,000.00 DATE: June 12, 2008
MATURES: July 1, 2033
FOR VALUE RECEIVED, Samuel D Chandler, a married man, whose address is 31 Victoria Way,
Camp Hill, PA 17011 17011, as maker (the "Borrower"), hereby unconditionally, jointly and
severally (if more than one), promises to pay to the order of Silver Hill Financial, LLC, a Delaware
Limited Liability Company, as payee, having an address at 895 SW 30 Ave, Suite 103, Pompano
Beach, Florida 33069, (the "Lender"), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of One Hundred Eighty-Nine Thousand and N01100
Dollars ($189,000.00), in lawful money of the United States of America with interest thereon to be
computed from the date of this Promissory Note ("Note") at the Applicable Interest Rate (defined
below) in accordance with the terms of this Note.
PAYMENT TERMS.Borrower agrees to pay sums under this Note in equal payments of principal
and interest, each in the amount of One Thousand Five Hundred Thirty-Seven Dollars And
Eighty-One Cents ($1,537.81) commencing August 1, 2008, and on the 1st day of each calendar
month thereafter (each, a "Payment Date"). The entire principal balance and all accrued and
unpaid interest thereon shall be due and payable on July 1, 2033 (the "Maturity Date"). Each
installment payment shall be applied as follows: (i) first, to the payment of late charges and
interest computed at the Default Rate (defined below), if applicable; (ii) second, to the payment of
interest at the Applicable Interest Rate; and (iii) third, the balance toward the reduction of the
principal balance.
2. INTEREST. Interest on the unpaid principal balance due hereunder shall accrue at a rate of Eight
And One Half Percent (8.500) per annum (the "Applicable Interest Rate"). Interest shall be
computed on the actual number of days elapsed and an assumed year of 360 days.
3. SECURITY. This Note is secured by that certain Mortgage and Security Agreement, Deed of
Trust and Security Agreement, or Deed to Secure Debt and Security Agreement; and Assignment
of Leases and Rents and Security Agreement and Fixture Filing (the "Security Instrument") of
even date herewith given by Borrower to Lender encumbering certain premises located in
CUMBERLAND County, Parish or Judicial District of the Commonwealth or State of PA, (the
"Real Property") and the Other Security Documents (as defined in the Security Instrument)
encumbering other property ("Other Property"), as more particularly described therein (the Real
Property and the Other Property are hereinafter collectively referred to as the "Property").
4. DEFAULT AND ACCELERATION. If any payment required in this Note is not paid (a) prior to
the fifth (5`h) day after a Payment Date, (b) on the Maturity Date or (c) on the happening of any
other default, after the expiration of any applicable notice and grace periods, herein or under the
terms of the Security Instrument or any of the Other Security Documents (collectively, an "Event
of Default"), and the Lender declares an Event of Default, then, at the option of Lender (i) the
whole of the principal sum of this Note, (ii) interest, default interest, late charges and other sums,
as provided in this Note, the Security Instrument or the Other Security Documents, (iii) all other
monies a-reed or provided to be paid by Borrower in this Note, the Security Instrument or the
Other Security Documents, (iv) all sums advanced pursuant to the Security Instrument to protect
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and preserve the Property and any lien and security interest created thereby; (v) all sums advanced
and costs and expenses incurred by Lender in connection with the Debt (defined below) or any
part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof,
or the acquisition or perfection of the security therefor, whether made or incurred at the request of
Borrower or Lender ; (vi) the Prepayment Consideration, if any; and (vii) any and all additional
advances made by Lender to complete Improvements or to preserve or protect the Property, or for
taxes, assessments or insurance premiums, or for the performance of any of Borrower's
obligations hereunder or under the Other Security Documents (all the sums referred to
in (i) through (vii) above shall collectively be referred to as the "Debt") shall without notice
become immediately due and payable.
5. DEFAULT INTEREST. Borrower agrees that upon the occurrence (and Lender's declaration) of
an Event of Default, Lender shall be entitled to receive and Borrower shall pay interest on the
entire unpaid principal sum at a per annum rate equal to the lesser of (i) ten percent (10%) plus
the Applicable Interest Rate, or (ii) the maximum interest rate which Borrower may by law pay
(the "Default Rate"), and shall be due and payable ON DEMAND. The Default Rate shall be
computed from the occurrence of the Event of Default. Interest calculated at the Default Rate
shall be deemed secured by the Security Instrument and the Other Security Documents. This
clause, however, shall not be construed as an agreement or privilege to extend the date of the
payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason
of the occurrence of any Event of Default.
6. LATE CHARGE. If any monthly installment payable under this Note is not paid prior to the fifth
(5th) day after the applicable Payment Date, Borrower shall pay to Lender upon demand an
amount equal to the lesser of (a) five percent (5%) of such unpaid sum or (b) the maximum
amount permitted by applicable law to defray the expenses incurred by Lender in handling and
processing the delinquent payment and to compensate Lender for the loss of the use of the
delinquent payment; and this amount shall be secured by the Security Instrument and the Other
Security Documents. This clause, however, shall not be construed as an agreement or privilege to
extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing
to Lender by reason of the occurrence of any Event of Default.
7. PREPAYMENT.
a. Lockout Period : Borrower shall not be permitted to make any full or partial
prepayment of the principal balance of this Note (a "Prepayment") prior to that date
that is sixty (60) months after the date of this Note (the "Lockout Period"). If, for any
reason, a Prepayment is made during the Lockout Period (a "Lockout Prepayment"),
Borrower shall, simultaneously therewith, be obligated to pay: (i) the aggregate
amount of interest which would have accrued on the unpaid principal balance of this
Note from the date of such Lockout Prepayment through the expiration date of the
Lockout Period (the "Lockout Fee"), plus (ii) all amounts specified in Section 7(b)
below).
b. Prepayment Period: At any time during the Prepayment Period (as defined below),
the principal balance of this Note may be prepaid in whole, but not in part, pursuant
to the terms contained in this Section 7. If Borrower makes any Prepayment within
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the first Five years after the date of this Note (the "Prepayment Period"), the Borrower
shall be obligated to pay to Lender the following amounts:
(i) an amount equal to Five percent (5.000%) of the then outstanding
unpaid principal balance of this Note (the "Prepayment
Consideration"); and
(ii) all accrued interest on the outstanding principal balance to and
including date on which the Prepayment is made; and
(iii) all other sums due under this Note, the Security Instrument and all
Other Security Documents.
c. Prepayments Without Consideration: No Prepayment Consideration or Lockout Fee (if
any) shall be due or payable with respect to any full or partial Prepayment made by
Borrower after the expiration of the Prepayment Period.
d. Notice of Prepayment: Prior to making any Prepayment, Borrower must provide Lender
with not less than sixty (60) days advance written notice of Borrower's intent to make such
Prepayment. Such notice must specify: (i) the date on which Prepayment is to be made,
and (ii) the principal amount of such Prepayment. Lender shall not be obligated to accept
any Prepayment unless it is accompanied by all other amounts due in connection therewith.
e. Permitted Prepayment Date : Borrower may only make a Prepayment on a regularly
scheduled Payment Date (as defined in Section 1 of this Note). Lender shall not be
required to accept any Prepayment made on a date other than a regularly scheduled
Payment Date. If Borrower submits a Prepayment on any date other than a regularly
scheduled Payment Date, then Borrower shall be required to pay all interest that would
have accrued through the next scheduled Payment Date.
f. Insurance/Condemnation Prepayments: Notwithstanding anything to the contrary
contained herein, and provided no Event of Default exists, no Prepayment Consideration
shall be due in connection with any Prepayment resulting from the application of insurance
proceeds or condemnation awards pursuant to the terms of the Security Instrument or
changes in tax and debt credit pursuant to the terms of the Security Instrument.
For purposes of this Section 7, the terms "Lockout Prepayment" and "Prepayment" shall
include, without limitation, any prepayment of principal that occurs as a result of any Event
of Default in any of the Loan Documents or an acceleration of the Maturity Date under any
circumstances, any prepayment of principal occurring in connection with foreclosure
proceedings or exercise of any applicable power of sale, any statutory right of redemption
exercised by Borrower or any other party having a statutory right to redeem or prevent
foreclosure, any sale in foreclosure or under exercise of any applicable power of sale, deed
in lieu of foreclosure or otherwise, and any other voluntary or involuntary prepayment of
principal made by Borrower.
8. LOAN CHARGES. Borrower agrees to an effective rate of interest that is the rate stated in this
Note, plus any additional rate of interest resulting from any other sums, amounts, and charges in
the nature of interest paid or to be paid by or on behalf of Borrower, or any benefit or value
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received or to be received by the holder of this Note, in connection with this Note. Without limiting
the foregoing, this Note, the Security Instrument and the Other Security Documents are subject to
the express condition that at no time shall Borrower be obligated or required to pay interest on the
principal balance due hereunder at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum interest rate which Borrower is permitted
by applicable law to contract or agree to pay. If by the terms of this Note, the Security Instrument
and the Other Security Documents, Borrower is at any time required or obligated to pay interest
on the principal balance due hereunder at a rate in excess of such maximum rate, the Applicable
Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced
to such maximum rate and all previous payments in excess of the maximum rate shall be deemed
to have been payments in reduction of principal and not on account of the interest due hereunder,
and any excess remaining shall be refunded to Borrower. All sums paid or agreed to be paid to
Lender fo- the use, forbearance, or detention of the Debt, shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the
Note until payment in full so that the rate or amount of interest on account of the Debt does not
exceed the maximum lawful rate of interest from time to time in effect and applicable to the Debt
for so long as the Debt is outstanding. In determining whether or not the interest paid or payable
hereunder exceeds the maximum lawful rate, the Lender may utilize any law, rule or regulation in
effect from time to time and available to the Lender.
9. WAIVERS. Borrower and all others who may become liable for the payment of all or any part of
the Debt do hereby severally waive (a) presentment and demand for payment, notice of dishonor,
protest and notice of protest and non-payment and all other notices of any kind, except for notices
expressly provided for in this Note, the Security Instrument or the Other Security Documents and
(b) any defense of the statute of limitations in any action hereunder or for the collection of the
Debt. No release of any security for the Debt or extension of time for payment of this Note or any
installment hereof, and no alteration, amendment or waiver of any provision of this Note, the
Security Instrument or the Other Security Documents made by agreement between Lender or any
other person or party shall release, modify, amend, waive, extend, change, discharge, terminate or
affect the liability of Borrower, and any other person or entity who may become liable for the
payment of all or any part of the Debt, under this Note, the Security Instrument or the Other
Security Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the
obligation of Borrower or of the right of Lender to take further action without further notice or
demand as provided for in this Note, the Security Instrument or the Other Security Documents. If
Borrower is a partnership, corporation or limited liability company, the agreements contained
herein shall remain in full force and effect, notwithstanding any changes in the individuals or
entities comprising the Borrower, and the term Borrower, as used herein, shall include any
alternate or successor entity, but any predecessor entity, and its partners or members, as the case
may be, shall not thereby be released from any liability. (Nothing in the foregoing sentence shall
be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests
in Borrower which may be set forth in the Security Instrument or any Other Security Document).
10. AUTHORITY. Borrower (and the undersigned representative of Borrower, if any) represents that
Borrower has full power, authority and legal right to execute and deliver this Note, the Security
Instrument and the Other Security Documents and that this Note, the Security Instrument and the
Other Security Documents constitute legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms.
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11. GOVERNING LAW. This Note shall be governed, construed, applied and enforced in
accordance with the laws of the State in which the Real Property is located, without regard to
principles of conflicts of law.
12. NOTICES. All notices required or permitted hereunder shall be given as provided in the Security
Instrument.
13. INCORPORATION BY REFERENCE. All of the terms, covenants and conditions contained in
the Security Instrument and the Other Security Documents are hereby made part of this Note to
the same extent and with the same force as if they were fully set forth herein. In the event of any
conflict in terms, the terms of the Note, Security Instrument and Other Security Documents (in
that order) shall control.
14. MISCELLANEOUS.
a. To the extent permitted by applicable law, wherever pursuant to this Note it is provided that
Borrower pay any costs and expenses, such costs and expenses shall include, but not be
limited to, reasonable legal fees and disbursements of Lender, whether with respect to
retained firms, the reimbursement for the expenses of in-house staff, or otherwise. To the
extent permitted by applicable law, Borrower shall pay to Lender on demand any and all
expenses, including legal expenses and reasonable attorneys fees (at all levels including
appeals), incurred or paid by Lender in enforcing this Note, whether or not any legal
proceeding is commenced hereunder, together with interest thereon at the Default Rate from
the date paid or incurred by Lender until such expenses are paid by Borrower.
b. This Note may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by
an agr.-ement in writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
c. If Borrower consists of more than one person or party, the obligations and liabilities of each
person or party shall be joint and several.
d. Whenever used, the singular number shall include the plural, the plural number shall include
the singular, and the words "Lender" and 'Borrower' shall include their respective successors,
assigns, heirs, executors and administrators.
e. The headings of this Note are for convenience only and are not to affect the construction of or
to be taken into account in interpreting the substance of this Note.
f. Time is of the essence hereunder.
g. A determination that any provision of this Note is unenforceable or invalid shall not affect
the enforceability or validity of any other provision and a determination that the application of
any provision of this Note to any person or circumstance is illegal or unenforceable shall not
affect the enforceability or validity of such provision as it may apply to other persons or
circumstances. The remaining provisions of this Note shall remain operative and in full force
and effect and shall in no way be affected, prejudiced or disturbed thereby.
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15. DOCUMENTARY STAMPS. Any and/or all documentary stamps or taxes required to be paid in
connection with this Note has been paid at the time of recordation of the Security Instrument.
16. FINAL AGREEMENT. This Note, the Security Instrument and the other Security Documents,
represent the final agreement between the parties and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements. There are no unwritten oral agreements
between the parties. All prior or contemporaneous agreements, understandings, representations
and statements, oral or written, are merged into the Guaranty and the other Security Documents.
17. POWER OF ATTORNEY. To the extent permitted by applicable law, borrower hereby
irrevocably authorizes any attorney at law elected by Lender to appear for it in any action on this
Note in any court of record in the State ofPA or any other state or territory of the United States, or
at any time after the indebtedness evidenced by this Note, or any part thereof becomes due (by
acceleration or otherwise), to waive the issuance and service of process, and confess a judgment
in favor of Lender or any subsequent holder of this Note against Borrower, for the amount that
may then be due, together with the costs of suit and interest, and to waive and release all errors
and all rights to second trial, appeal, and stay of execution. The foregoing warrant of attorney
shall survive any judgment, and if any judgment be vacated for any reason, the holder hereof
nevertheless may thereafter use the foregoing warrant of attorney to obtain an additional
judgment or judgments against Borrower.
18. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER, BY ITS ACCEPTANCE
HEREOF, EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THIS NOTE, THE APPLICATION FOR
THE LOAN EVIDENCED BY THIS NOTE, THIS NOTE, THE SECURITY INSTRUMENT
OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF ANY
PARTY OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, DIRECTORS OR
AGENTS IN CONNECTION THEREWITH. THIS WAIVER OF THE RIGHT TO TRIAL BY
JURY IS A MATERIAL INDUCEMENT TO THE LENDER FOR THE LENDER TO MAKE
THE LOAN.
READ ALL CREDIT AGREEMENTS BEFORE SIGNING. THE TERMS OF ALL CREDIT
AGREEMENTS SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN
WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED OR SPECIFICALLY INCORPORATED BY WRITING IN THIS WRITTEN
CREDIT AGREEMENT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE
TERMS OF THIS CREDIT AGREEMENT ONLY BY OTHER WRITTEN CREDIT
AGREEMENTS.
(NO FURTHER TEXT - SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and date first
above written.
Signed, sealed and delivered
in the presence of: `` Borrower:
Cali ?. ?cC'? ?`-
Print Name: Le.215 Samuel D Chandler
Print Name:
7 3048817
ALLONGE TO NOTE
FOR PURPOSES OF FURTHER ENDORSEMENT OF THE NOTE
REFERRED TO BELOW:
BORROWER: Samuel D Chandler
LENDER: Silver Hill Financial, LLC, a Delaware Limited
Liability Company
DATED: June 12, 2008
ORIGINAL PRINCIPAL BALANCE: $189,000.00
PAY TO THE ORDER OF:
WITHOUT RECOURSE:
Silver Hill Financial, LLC, a Delaware Limited Liability Company
B y:
T `
Prins Name: RktWd
Title: "M
1 3048817
Exhibit "B "
GD16
UPON RECORDING RETURN TO: `C
Gt
Buyview Lending Group, LLC
Attn: Title Processing Department
4425 Ponce de Leon Blvd., 41h Floor
Coral Gables, FL 33146
OPEN-END MORTGAGE & SECURITY AGREEMENT
[ PENNSYLVANIA I
[This Mortgage Secures Future Advances]
Samuel D Chandler, a married man,
as mortgagor
(Borrower)
To
Silver Hill Financial, LLC, a Delaware
Limited Liability Company
as mortgagee
(Lender)
3048817
THIS MORTGAGE AND SECURITY AGREEMENT (the "Security Instrument") is made as of June 12,
2008, by Samue: D Chandler, a married man, whose address is 31 Victoria Way, Camp Hill, PA 17011 17011, as
mortgagor ("Borrower") to Silver Hill Financial, LLC, a Delaware Limited Liability Company, whose address is 895 SW
30 Ave, Suite 103, Pompano Beach, Florida 33069, as mortgagee ("Lender").
RECITALS:
Borrower by its Promissory Note of even date herewith given to Lender is indebted to Lender in the principal sum of One
Hundred Eighty-Nine Thousand and No/100 Dollars ($189,000.00) in lawful money of the United States of America (the
Note together with all extensions, renewals, modifications, substitutions and amendments thereof shall collectively be
referred to as the "Note"), with interest from the date thereof at the rates set forth in the Note, principal and interest to be
payable in accorcance with the terms and conditions provided in the Note and with a maturity date of July 1, 2033.
By its execution sereof. Borrower desires to secure the payment of the Debt (hereinafter defined) and the performance of
all of its obligations under the Note and the Other Obligations (hereinafter defined) and any and all other indebtedness
now or hereafter owing by Borrower to Lender.
ARTICLE 1. - GRANTS OF SECURITY
Section LL PROPERTY MORTGAGED. Borrower does hereby irrevocably mortgage, grant, bargain, sell,
pledge, assign, warrant, transfer and convey to Lender with mortgage covenants upon the Statutory Condition and, as
provided and/or authorized by applicable law, with the STATUTORY POWER OF SALE, and grant a security interest to
Lender in, the following property, rights, interests and estates now owned, or hereafter acquired by Borrower to the fullest
extent permitted by applicable law (collectively, the "Property"):
(a) Land. The real property described in Exhibit "A" attached hereto and made a part hereof (the
"Land");
(b) Additional Land. All additional lands, estates and development rights hereafter acquired by
Borrower for use in connection with the Land and the development of the Land and all additional lands and estates therein
which may, fron time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this
Security Instrument;
(c) Improvements. The buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (the
"Improvements");
(d) Easements. All easements, servitudes rights-of-way or use, rights, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and
all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any
nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements and
the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower
and rights of dower, courtesy and rights of courtesy, property, possession, claim and demand whatsoever, both at law and
in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel thereof, with the
appurtenances thereto;
(e) Fixtures and Personal Property. All machinery, equipment, fixtures (including, but not limited to,
all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) trade fixtures and other property
of every kind ar_d nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, including
without limitation, letter of credit rights, deposit accounts, payment intangibles, investment property, electronic chattel
paper, timber to be cut and farm animals and, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or future operation and occupancy of the Land and the
Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in
which Borrower has or shall have an interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, or- usable in connection with the present or future operation and occupancy of the Land and the
Improvements (collectively, the "Personal Property"), and the right, title and interest of Borrower in and to any of the
Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopte
1 3048817
and enacted by the state or states where any of the Property is located (the "Uniform Commercial Code"),
superior in lien to the lien of this Security Instrument, and all proceeds and products of all of the above;
M Leases and Rents. All leases, subleases and other agreements affecting the use, enjoyment or
occupancy of the Land and/or the Improvements heretofore or hereafter entered into and all extensions, amendments and
modifications thereto, whether before or after the filing by or against Borrower of any petition for relief under Creditors
Rights Laws (hereinafter defined) (the "Leases") and all right, title and interest of Borrower, its successors and assigns
therein and thereunder, including, without limitation, any guaranties of the lessees' obligations thereunder, cash or
securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents,
additional rents, revenues, room revenues, accounts, accounts receivable, issues and profits (including all oil and gas or
other mineral royalties and bonuses) from the Land and the Improvements whether paid or accruing before or after the
riling by or against Borrower of any petition for relief under the Creditors Rights Laws (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt;
(g) Insurance Proceeds. All proceeds of and any unearned premiums on any insurance policies
covering the Property, including, without limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Property;
(h) Condemnation Awards. All awards or payments, including interest thereon, which may heretofore
and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including,
but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or
for any other injury to or decrease in the value of the Property;
0) Tax Certiorari. All refunds, rebates or credits in connection with a reduction in real estate taxes and
assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction;
0) Conversion. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing
including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims;
(k) Rights. The right, in the name and on behalf of Borrower, to appear in and defend any action or
proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of
Lender in the Property;
(1) Agreements. All agreements, contracts, certificates, instruments, franchises, permits, licenses,
plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any
Improvements or respecting any business or activity conducted on the Land and any part thereof and all right, title and
interest of Borrower therein and thereunder, including, without limitation, the right, upon the occurrence and during the
continuance of an Event of Default (hereinafter defined), to receive and collect any sums payable to Borrower thereunder;
(m) Intangibles. All trade names, trademarks, servicemarks, logos, copyrights, goodwill, books and
records and all other intellectual property rights and general intangibles relating to or used in connection with the
operation of the Property;
(n) Cash and Accounts. Cash and Accounts. All cash funds, deposit accounts and other rights and
evidence of rights to cash, all present and future funds, accounts, instruments, accounts receivable, documents, causes of
action, or claims now or hereafter held, created or otherwise capable of credit to the Debtor/Borrower; and
(o) Other Rights. Any and all other rights of Borrower in and to the items set forth in Subsections (a)
through (n) above.
Section 1.2. ASSIGNMENT OF LEASES AND RENTS. Borrower hereby absolutely and unconditionally assigns
to Lender Borrower's right, title and interest in and to all current and future Leases and Rents; it being intended by
Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security
only. Notwithstanding the foregoing, Lender grants to Borrower a revocable license to collect and receive the Rents.
Borrower shall hold a portion of the Rents sufficient to discharge all current sums due on the Debt, for use in the payment
of such sums.
Section 1.3. SECURITY AGREEMENT. This Security instrument is both a real property mortgage and a "securit
2 3048817
agreement" within the meaning of the Uniform Corr nercial Code. The Property includes both real and personal property
and all other rights and interests, whether tangible of intangible in nature, of Borrower in the Property. By executing and
delivering this Security Instrument, Borrower heir by grants to Lender, as security for the Obligations (hereinafter
defined), a security interest in the Personal Propen:, as well as all other property and interests set forth in Section 1.1
herein to the full extent that the same may be sub.$Xt to the Uniform Commercial Code. Borrower hereby authorizes
Lender to file any financing or continuation stateni:nts under the Uniform Commercial Code with respect to the liens
granted under th.s Security Instrument or any of thr. Other Security Documents, including financing statements with "all
assets" or other such descriptions of collateral.
Section 1.4. PLEDGE OF MONIES HELD. Borrower hereby pledges to and grants a continuing security interest
in favor of Lender any and all monies now or herea:i er held by Lender, including, without limitation, any sums deposited
in the Escrow Fund (hereinafter defined), Net Prq:eeds (hereinafter defined) and condemnation awards or payments
(hereinafter described) as additional security for thi Obligations until expended or applied as provided in this Security
Instrument.
COMI 1ITIONS TO GRANT
TO HAVE AND TO HOLD the above granted i nd described Property to the use and benefit of Lender, and the
successors and assigns of Lender, forever;
PROVIDED, HOWEVER, these presents are uporl the express condition that, if Borrower shall well and truly pay to
Lender the Debt at the time and in the manner provljed in the Note and this Security Instrument, shall perform the Other
Obligations as set forth in this Security Instrumenj and shall abide by and comply with each and every covenant and
condition set forth herein and in the Note, these pre.ents and the estate hereby granted shall cease, terminate and be void,
except to the extent any provision herein provides that it shall survive the repayment of the obligations.
ARTICLE 2. - DEBT AND OBLIGATIONS SECURED
Section 2.1. DEBT. This Security Instrument and the grants, assignments and transfers made pursuant to the terms
hereafter are given for the purpose of securing the payment of the following, in such order of priority as Lender may
determine in its sole discretion (the "Debt"):
(a) the indebtedness evidenced by the Note in lawful money of the United States of America;
(b) interest, default interest, late charges and other sums, as provided in the Note, this Security
Instrument or the Other Security Documents (hereinafter defined);
(c) the Prepayment Consideration (defined in the Note), if any;
(d) all other monies agreed or provided to be paid by Borrower in the Note, this Security Instrument or
the Other Security Documents (hereinafter defined);
(e) all sums advanced pursuant to this Security Instrument to protect and preserve the Property and the
lien and the security interest created hereby; and
(f) all sums advanced and costs and expenses incurred by Lender in connection with the Debt or any
part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof, or the acquisition or
perfection of the security therefor, whether made or incurred at the request of Borrower or Lender; and
(g) any and all additional advances made by Lender to complete Improvements or to preserve or
protect the Property, or for taxes, assessments or insurance premiums, or for the performance of any of Borrower's
obligations hereunder or under the Other Security Documents (hereinafter defined).
Section 2.2. OTHER OBLIGATIONS. This Security Instrument and the grants, assignments and transfers made
pursuant to the terms hereof are also given for the purpose of securing the performance of the following (the "Other
Obligations"):
(a) all other obligations of Borrower contained herein;
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(b) each obligation of Borrower contained in the Note and in the Other Security Documents; and
(c) each obligation of Borrower contained in any renewal, extension, amendment, modification,
consolidation, change of, or substitution or replacement for, all or any part of the Note, this Security Instrument or the
Other Security Documents.
(d) any and all other indebtedness now or hereafter owing by Borrower to Lender.
Section 2.3. DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the payment of the Debt and the
performance of the Other Obligations shall be referred to collectively as the "Obligations."
Section 2.4. PAYMENTS. Unless payments are made in the required amount in immediately available funds at the
place where the Note is payable, remittances in payment of all or any part of the Debt shall not, regardless of any receipt
or credit issued therefor, constitute payment until the required amount is actually received by Lender in funds
immediately available at the place where the Note is payable (or any other place as Lender, in Lender's sole discretion,
may have established by delivery of written notice thereof to Borrower) and shall be made and accepted subject to the
condition that any check or draft may be handled for collection in accordance with the practice of the collecting bank or
banks; provided, however, Lender shall not be required to accept payment for any Obligation in cash. Acceptance by
Lender of any payment in an amount less than the amount then due shall be deemed an acceptance on account only, and
the failure to pay the entire amount then due shall be and continue to be an Event of Default.
ARTICLE 3. - BORROWER COVENANTS
Borrower covenants and agrees that:
Section 3.1. PAYMENT OF DEBT AND PERFORMANCE OF OBLIGATIONS. Borrower will pay the Debt at
the time and in the manner provided in the Note and in this Security Instrument; without relief from valuation or
appraisement laws, and shall promptly and fully perform all of the Obligations in this Security Agreement and the Other
Security Documents (hereinafter defined).
Section 3.2. INCORPORATION BY REFERENCE. All the covenants, conditions and agreements contained in (a)
the Note and (b) all and any of the documents other than the Note or this Security Instrument now or hereafter executed
by Borrower and/or others and by or in favor of Lender, which wholly or partially secure or guaranty payment of the Note
or are otherwise executed and delivered in connection with the Loan (the "Other Security Documents") are hereby made a
part of this Security Instrument to the same extent and with the same force as if fully set forth herein.
Section 3.3. INSURANCE. Borrower shall maintain with respect to the Property at all times, insurance against loss
or damage by fire and other casualties and hazards by insurance written on an "all risks" basis including specifically
windstorm and/or hail damage, in an amount not less than the greater of: (i) the unpaid balance of the indebtedness as
evidenced by the Note, or (ii) the maximum insurable value of the Improvements, naming Lender as loss payee and
additional insured; (iii) if the Property is required to be insured pursuant to the National Flood Reform Act of 1994, and
the regulations promulgated there under, flood insurance is required in the amount equal to the lesser of the loan amount
or the maximum available under the National Flood Insurance Program, but in no event should the amount of coverage be
less than the value of the improved structure, naming Lender as additional insured and loss payee; (iv) liability insurance
providing coverage in such amount as Lender may require but in no event less than $500,000.00 naming Lender as an
additional insured; and (v) such other insurances as Lender may reasonably require from time to time.
All casualty insurance policies shall contain an endorsement or agreement by the insurer in form satisfactory to
Lender that any loss shall be payable in accordance with the terms of such policy notwithstanding any act of negligence
of Borrower and the further agreement of the insurer waiving rights of subrogation against Lender, and rights of set-off,
counterclaim or deductions against Borrower.
All insurance policies shall be in form, provide coverages, be issued by companies and be in amounts
satisfactory to Lender. At least 30 days prior to the expiration of such policy, Borrower shall furnish Lender with
evidence satisfactory to Lender that such policy has been renewed or replaced. All such policies shall provide that the
policy will not be canceled or materially amended without at least 30 days prior written notice to Lender. In the event
Borrower fails to provide, maintain, keep in force and furnish to Lender the policies of insurance in such amounts, at such
premium, for such risks and by such means as Lender chooses, then Lender may procure such insurance at Borrower's
sole cost and expense, provided Lender shall have no responsibility to obtain any insurance, but if Lender does obtain
4 3048817
insurance, Lender shall have no responsibility to assure that the insurance obtained shall be adequate or provide
any protection to Borrower.
In the event of a foreclosure of the Security Instrument or other transfer of title to the Property in extinguishment
in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the
Property, to the extent assignable, and all proceeds payable thereunder shall thereupon vest in Lender or the purchaser at
such foreclosure or other transferee in the event of such other transfer of title.
Section 3.4. PAYMENT OF TAXES. ETC.
(a) Borrower shall promptly pay by the date same are initially payable all taxes, assessments, impact
fees, levies, inspection and license fees, water rates, sewer rents and other governmental impositions, including, without
limitation, vault and meter charges and license fees for the use of vaults, chutes and similar areas adjoining the Land, now
or hereafter levied or assessed or imposed against the Property or any part thereof (the "Taxes") not paid from the Escrow
Fund (hereinafter defined), all ground rents, maintenance charges and similar charges, now or hereafter levied or assessed
or imposed against the Property or any part thereof (the "Other Charges"), and all charges for utility services provided to
the Property as same become due and payable. Borrower will deliver to Lender, receipts or other, evidence satisfactory to
Lender that the Taxes, Other Charges and utility service charges have been so paid or are not then delinquent. Borrower
shall not suffer and shall promptly cause to be paid and discharged any lien or charge whatsoever, which may be or
become a lien or charge against the Property, except to the extent sums sufficient to pay all Taxes and Other Charges have
been deposited with Lender in accordance with the terms of this Security Instrument.
(b) After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate
legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Taxes, provided that (i) no Event of Default has occurred and is continuing
under the Note, this Security Instrument or any of the Other Security Documents, (ii) Borrower is permitted to do so
under the provisions of any other mortgage, deed of trust or deed to secure debt affecting the Property, (iii) such
proceeding shall suspend the collection of the Taxes from Borrower and from the Property or Borrower shall have paid all
of the Taxes under protest, (iv) such proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder, (v) neither
the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost
and (vi) Borrower shall have deposited with Lender adequate reserves (determined by Lender in its sole discretion) for the
payment of the Taxes, together with all interest and penalties thereon, unless Borrower has paid all of the Taxes under
protest, and Bo-rower shall have furnished such other security as may be required in the proceeding, or as may be
reasonably requested by Lender to insure the payment of any contested Taxes, together with all interest and penalties
thereon, taking into consideration the amount in the Escrow Fund available for payment of Taxes.
Section 3.5. ESCROW FUND. In addition to the initial deposits with respect to Taxes and Insurance Premiums
made by Borrower to Lender on the date hereof to be held by Lender in escrow, Borrower shall pay to Lender on the first
day of each calendar month (a) one-twelfth of an amount which would be sufficient to cover the payment of the Taxes
payable, or estimated by Lender to be payable, during the next ensuing twelve (12) months and (b) one-twelfth of an
amount which would be sufficient to pay the Insurance Premiums due for the renewal of the coverage afforded by the
Policies upon the expiration thereof (the amounts in (a) and (b) above shall be called the "Escrow Fund"). Borrower
agrees to notify Lender immediately of any changes to the amounts, schedules and instructions for payment of any Taxes
and Insurance Premiums of which it has or obtains knowledge and authorizes Lender or its agent to obtain the bills for
Taxes directly from the appropriate taxing authority. The Escrow Fund and the payments of interest or principal or both,
payable pursuant to the Note shall be added together and shall be paid as an aggregate sum by Borrower to Lender.
Provided there are sufficient amounts in the Escrow Fund and no Event of Default exists, Lender shall be obligated to pay
the Taxes and Insurance Premiums as they become due on their respective due dates on behalf of Borrower by applying
the Escrow Fund to the payments of such Taxes and Insurance Premiums required to be made by Borrower. If the
amount of the Escrow Fund shall exceed the amounts reasonably necessary for the payment of Taxes and Insurance
Premiums, Lender shall, in its discretion, return any excess to Borrower or credit such excess against future payments to
be made to the Escrow Fund. In allocating such excess, Lender may deal with the person shown on the records of Lender
to be the owner of the Property. If the Escrow Fund is not sufficient to pay the items set forth in (a) and (b) above as and
when they are due. Borrower shall promptly pay to Lender, upon demand, an amount which Lender shall reasonably
estimate as sufficient to make up the deficiency. Unless otherwise required by applicable state or federal law, the Escrow
Fund shall not constitute a trust fund and may be commingled with other monies held by Lender. Unless otherwise
required by applicable state or federal law, no earnings or interest on the Escrow Fund shall be payable to Borrower.
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Upon payment ic full of the Debt, and full performance of the Obligations, the funds remaining in the Escrow Fund, if
any, shall be paid to the record owner of the Land encumbered by the lien of this Security Instrument within a reasonable
time following the date of such full payment and performance.
Section 3.6. CONDEMNATION. Borrower shall promptly give Lender notice of the actual or threatened
commencement of any condemnation or eminent domain proceeding and shall deliver to Lender copies of any and all
papers, documents, surveys and correspondence served or received in connection with such proceedings.
Notwithstanding any taking by any public or quasi-public authority through eminent domain or otherwise (including, but
not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay
the Debt at the time and in the manner provided for its payment in the Note and in this Security Instrument and the Debt
shall not he reduced until any award or payment therefor shall have been actually received and applied by Lender, after
the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the
interest paid on tae award by the condemning authority but shall be entitled to receive out of the award interest at the rate
or rates provided in the Note. Borrower hereby assigns and shall cause all awards and payments made in any
condemnation or eminent domain proceeding, to be paid directly to Lender. Lender may apply any award or payment to
the reduction or discharge of the Debt whether or not then due and payable. If the Property is sold, through foreclosure or
otherwise, prior to the receipt by Lender of the award or payment, Lender shall have the right, whether or not a deficiency
judgment on the Note shall have been sought, recovered or denied, to receive the award or payment, or a portion thereof
sufficient to pay the Debt. In addition, Borrower authorizes Lender, at Lender's option but without any obligation, as
attorney-in-fact for Borrower to commence, appear in and prosecute, in Borrowers or Lender's name, any action or
proceeding relating to any condemnation (which term for purposes hereunder shall mean any action regarding damage or
taking by any governmental authority, quasi-governmental authority, any party having power of condemnation, or any
transfer by priva-e sale in lieu thereof) or other taking of the Property and to settle or compromise any claim in connection
with such condemnation or other taking. Notwithstanding any application of condemnation proceeds by Lender to the
Debt, Borrower shall repair, restore and rebuild the Property affected by the condemnation to a condition as close to that
existing prior to such condemnation as is reasonable practicable, and otherwise sufficient for the use and enjoyment
thereof as determined by Lender.
Section 3.7. RESTORATION AFTER CASUALTY.
(a) In the event of loss, Borrower shall give immediate written notice to the insurance carrier and to
Lender. Borrower hereby authorizes and appoints Lender as attorney in fact for Borrower to make proof of loss, to adjust
and compromise any claims under policies of property damage insurance, to appear in and prosecute any action arising
from such property damage insurance policies, to collect and receive the proceeds of property damage insurance, and to
deduct from such proceeds Lender's expenses incurred in the collection of such proceeds. This power of attorney is
coupled with an interest and therefore is irrevocable. However, nothing contained in this Section 3.7 shall require Lender
to incur any expense or take any action. Lender may, at Lender's option, (1) hold the balance of such proceeds to be used
to reimburse Borrower for the cost of restoring and repairing the Property to the equivalent of its original condition or to a
condition approved by Lender (the "Restoration"), or (2) apply the balance of such proceeds to the payment of the Debt,
whether or not then due. To the extent Lender determines to apply insurance proceeds to Restoration, Lender shall do so
in accordance with Lender's then-current policies relating to the restoration of casualty damage on similar properties.
(b) Lender shall not exercise its option to apply insurance proceeds to the payment of the Debt if all of the
following conditions are met: (1) no Event of Default (or any event which, with the giving of notice or the passage of
time, or both, would constitute an Event of Default) has occurred and is continuing; (2) Lender determines, in its
discretion, that there will be sufficient funds to complete the Restoration; (3) Lender determines, in its discretion, that the
net cash flow from the Property after completion of the Restoration will be sufficient to meet all operating costs and other
expenses, deposits to the Escrow Fund, deposits to reserves and loan repayment obligations relating to the Property; (4)
Lender determines, in its discretion, that the Restoration will be completed before the earlier of (A) one year before the
maturity date of the Note or (B) one year after the date of the loss or casualty; and (5) upon Lender's request, Borrower
provides Lender evidence of the availability during and after the Restoration of the insurance required to be maintained
by Borrower pursuant to Section 3.3.
Section 3.8. LEASES AND RENTS. Borrower shall maintain, enforce and cause to be performed all of the terms
and conditions ander any Lease or sublease, which may constitute a portion of the Property. Borrower shall not, without
the consent of Lender enter into any new Lease of all or any portion of the Property, agree to the cancellation or surrender
under any Lease of all or any portion of the Property, agree to prepayment of Rents, issues or profits (other than Rent paid
at the signing of a lease or sublease), modify any such Lease so as to shorten the term, decrease the Rent, accelerate the
payment of Rent, or change the terms of any renewal option, provided that such action (taking into account, in the case of
6
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a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected
space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such
Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and
any subordination agreement binding upon Lender with respect to such Lease. Any such purported new Lease,
cancellation surrender, prepayment or modification made without the written consent of Lender shall be void as against
Lender.
Section 3.9. MAINTENANCE AND USE OF PROPERTY. Borrower shall cause the Property to be maintained
in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished
or materially altered (except for normal replacement of the Personal Property with replacement property of equal or
greater value) without the consent of Lender. Borrower shall promptly repair, replace or rebuild any part of the Property
which may be dsstroyed by any casualty, or become damaged, wom or dilapidated or which may be affected by any
condemnation or taking proceeding and shall complete and pay for any structure at any time in the process of construction
or repair on the Land. Borrower shall not initiate, join in, acquiesce in, or consent to any change in any private restrictive
covenant. zoning law or other public or private restriction, limiting, defining or changing the uses which may be made of
the Property or any part thereof. If under applicable zoning provisions the use of all or any portion of the Property is or
shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the
nonconforming Improvement to be abandoned without the express written consent of Lender, and Borrower shall take
such other steps as Lender may require to establish the legality of such non-conforming use.
Section 3.10. WASTE. Borrower shall not commit or suffer any waste of the Property or make any change in the
use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of
the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or substantially increase
the rates thereunder, or do or permit to be done thereon anything that may in any way impair the value of the Property or
the security of this Security Instrument. Borrower will not, without the prior written consent of Lender, permit any
drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the
Land, regardless of the depth thereof or the method of mining or extraction thereof.
Section 3.11. COMPLIANCE WITH LAWS.
(a) Borrower shall promptly comply with all existing and future federal, state and local laws, orders,
ordinances, governmental rules and regulations or court orders affecting the Property, and the use thereof, including any
Environmental Law (hereinafter defined) ("Applicable Laws").
(b) Borrower shall from time to time, upon Lender's request, provide Lender with evidence reasonably
satisfactory to Lender that the Property complies with all Applicable Laws or is exempt from compliance with Applicable
Laws.
(c) Notwithstanding any provisions set forth herein or in any document regarding Lender's approval of
alterations of the Property, Borrower shall not alter the Property in any manner which would materially increase
Borrowers responsibilities for compliance with Applicable Laws without the prior written approval of Lender. Lenders
approval of the plans, specifications, or working drawings for alterations of the Property shall create no responsibility or
liability on behalf of Lender for their completeness, design, sufficiency or their compliance with Applicable Laws. The
foregoing shall apply to tenant improvements constructed by Borrower or by any of its tenants. Lender may condition
any such approval upon receipt of a certificate of compliance with Applicable Laws from an independent architect,
engineer, or other person acceptable to Lender.
(d) Borrower shall give prompt notice to Lender of the receipt by Borrower of any notice related to a
violation or threatened violation of any Applicable Laws and of the commencement or threatened commencement of any
proceedings or Investigations which relate to compliance with Applicable Laws.
(e) After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal
proceedings, promptly initiated and conducted in good faith and with due diligence, the Applicable Laws affecting the
Property, provided that (i) no Event of Default has occurred and is continuing under the Note, this Security Instrument or
any of the Other Security Documents; (ii) Borrower is permitted to do so under the provisions of any other mortgage,
deed of trust or deed to secure debt affecting the Property; (iii) such proceeding shall be permitted under and be
conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and
shall not constitute a default thereunder; (iv) neither the Property, any part thereof or interest therein, any of the tenants or
occupants thereof, Borrower, nor Lender shall be affected in any material adverse way as a result of such proceeding; (v)
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non-compliance with the Applicable Laws shall not impose civil or criminal liability on Borrower or
Lender; and (vi) Borrower shall have furnished to Lender all other items reasonably requested by Lender.
Section 3.12. BOOKS AND RECORDS
(a) Borrower shall keep and maintain at all times at the Property or the management agent's offices, and
upon Lender's request shall make available at the Property, complete and accurate books of account and records
(including copie: of supporting bills and invoices) adequate to reflect correctly the operation of the Property, and copies
of all written contracts, Leases, and other instruments which affect the Property. Following a default by Borrower, the
books, records, contracts, Leases and other instruments shall be subject to examination and inspection at any reasonable
time by Lender.
(b) Following a default by Borrower, Borrower shall furnish to Lender all of the following:
(1) within ten (10) days following Lender's written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, a statement of income and expenses for Borrower's operation of the Property
for that fiscal year, a statement of changes in financial position of Borrower relating to the Property for that fiscal year
and, when requested by Lender, a balance sheet showing all assets and liabilities of Borrower relating to the Property as
of the end of that fiscal year;
(2) within ten (10) days following Lenders written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, and at any other time upon Lenders request, a rent schedule for the Property
showing the narr_e of each tenant, and for each tenant, the space occupied, the lease expiration date, the rent payable for
the current month, the date through which rent has been paid, and any related information requested by Lender;
(3) within ten (10) days following Lender's written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, and at any other time upon Lender's request, an accounting of all security
deposits held pursuant to all Leases, including the name of the institution (if any) and the names and identification
numbers of the accounts (if any) in which such security deposits are held and the name of the person to contact at such
financial institution, along with any authority or release necessary for Lender to access information regarding such
accou nts;
(4) within ten (10) days following Lender's written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, and at any other time upon Lenders request, a statement that identifies all
owners of any interest in Borrower and the interest held by each, if Borrower is a corporation, all officers and directors of
Borrower, and if Borrower is a limited liability company, all managers who are not members;
(5) within ten (10) days following Lender's written request and thereafter monthly a property
management report for the Property, showing the number of inquiries made and rental applications received from tenants
or prospective tenants and deposits received from tenants and any other information requested by Lender;
(6) within ten (10) days following Lender's written request and thereafter monthly a balance sheet, a
statement of income and expenses for Borrower and a statement of changes in financial position of Borrower for
Borrowers most recent fiscal year; and
(7) within ten (10) days following Lender's written request and thereafter monthly a statement of
income and expense for the Property for the prior month or quarter.
(c) Each of the statements, schedules and reports required hereunder shall be certified to be complete and
accurate by an individual having authority to bind Borrower, and shall be in such form and contain such detail as Lender
may reasonably require; provided that Lender, in Lender's sole discretion, may require that any statements, schedules or
reports be audited at Borrower's expense by independent certified public accountants acceptable to Lender.
(d) If Borrower fails to provide in a timely manner the statements, schedules and reports required
hereunder, Lender shall have the right to have Borrower's books and records audited, at Borrower's expense, by
independent certified public accountants selected by Lender in order to obtain such statements, schedules and reports, and
all related costs and expenses of Lender shall become immediately due and payable and shall become an additional part of
the Debt.
(e) If an Event of Default has occurred and is continuing, Borrower shall deliver to Lender upon written
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demand all books and records relating to the Property or its operation.
(f) Borrower authorizes Lender to obtain a credit report on Borrower at any time.
(g) Borrower, any Guarantor and any Indemnitor shall furnish Lender with such other additional financial
or management information (including State and Federal tax returns) as may, from time to time, be reasonably required
by Lender in form and substance satisfactory to Lender.
(h) Borrower, any Guarantor and any Indemnitor shall furnish to Lender and its agents convenient facilities
for the examination and audit of any such books and records.
Section 3.13. PAYMENT FOR LABOR AND MATERIALS. Borrower will promptly pay when due all bills and
costs for labor, materials, and specifically fabricated materials incurred in connection with the Property and newer permit
to exist in respec: of the Property or any pan thereof any lien or security interest, even though inferior to the liens and the
security interests hereof, and in any event never permit to be created or exist in respect of the Property or any pact thereof
any other or add.tional lien or security interest other than the liens or security interests hereof, except for the Permitted
Exceptions (defined below).
Section 3.14. PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and perform each and
every term to be observed or performed by Borrower pursuant to the terms of any agreement or recorded instrument
affecting or pertaining to the Property, or given by Borrower to Lender for the purpose of further securing an Obligation
and any amendments, modifications or changes thereto.
Section 3.15. CHANGE OF NAME. IDENTITY OR STRUCTURE. Borrower shall not change Borrower's name,
identity (including its trade name or names) or, if not an individual, Borrower's corporate, partnership or other structure or
jurisdiction where the Borrower is organized without notifying the Lender of such change in writing at least thirty (30)
days prior to the effective date of such change and, in the case of a change in Borrower's structure or the jurisdiction
where Borrower is organized, without first obtaining the prior written consent of the Lender.
Section 3.16. EXISTENCE. Borrower will continuously maintain (a) its existence and shall not dissolve or permit
its dissolution, (b) its rights to do business in the state where the Property is located and (c) its franchises and trade names.
Section 3.17. MANAGEMENT. The Property shall be managed by either: (a) Borrower or an entity affiliated with
Borrower and approved by Lender for so long as Borrower or said affiliated entity is managing the Property in a first class
manner, or (b) a professional property management company approved by Lender. Management by an affiliated entity or
a professional p-operty management company shall be pursuant to a written agreement approved by Lender which shall
be in all respects subordinate to this Security Instrument. Following a default by Borrower, no manager shall be removed
or replaced or the terms of any management agreement modified or amended without the prior written consent of Lender.
In the event (x) of default hereunder or under any management contract then in effect, which default is not cured within
any applicable grace or cure period or (y) of the bankruptcy or insolvency of the manager, Lender shall have the right to
immediately terminate, or to direct Borrower to immediately terminate, such management contract and to retain, or to
direct Borrower to retain, a new management agent approved by Lender. All Rents generated by or derived from the
Property shall first be utilized solely for current expenses directly attributable to the ownership and operation of the
Property, including, without limitation, current expenses relating to Borrowers liabilities and obligations with respect to
the Note, this Security Instrument and the Other Security Documents, and none of the Rents generated by or derived from
the Property shzil be diverted by Borrower and utilized for any other purpose unless all such current expenses attributable
to the ownership and operation of the Property have been fully paid and satisfied.
Section 3.18. PRINCIPAL PLACE OF BUSINESS. In the event that Borrower shall change the principal place of
business or chief executive office, or, in the event Borrower is one or more patural persons, the location of its permanent
residence, all as set forth in Subsection 4.18 below, Borrower shall immediately notify Lender in writing. Borrower shall
execute and deliver such additional financing statements, security agreements and other instruments which may be
necessary to effectively evidence or perfect Lender's security interest in the Property as a result of such change of
principal place of business or residence.
ARTICLE 4. - REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that:
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Section 4. 1. WARRANTY OF TITLE. Borrower has good and marketable title to the Property and has the right to
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and that Borrower possesses an
unencumbered fee simple absolute estate in the Land and the Improvements and that it owns the Property free and clear of
all liens, encumbrances and charges whatsoever except for those exceptions shown in the title insurance policy insuring
the lien of this Security Instrument (the "Permitted Exceptions"). Borrower shall forever warrant, defend and preserve the
title and the validity and priority of the lien of this Security Instrument and shall forever warrant and defend the same to
Lender against the claims of all persons whomsoever, and shall make such further assurances to perfect fee simple title to
the Property as Lender may reasonably require.
Section 4.2. LEGAL STATUS AND AUTHORITY. Borrower (a) is duly organized, validly existing and in good
standing under the laws of its state of organization or incorporation; (b) is duly qualified to transact business and is in
good standing in the state where the Property is located; and (c) has all necessary approvals, governmental and otherwise,
and full power and authority to own, operate and lease the Property. Borrower (and the undersigned representative of
Borrower, if any) has full power, authority and legal right to execute this Security Instrument, and to mortgage, grant,
bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms hereof and to keep and
observe all of the terms of this Security Instrument on Borrowers part to be performed.
Section 4.3. VALIDITY OF DOCUMENTS. (a) The execution, delivery and performance of the Note, this Security
Instrument and C-ie Other Security Documents and the borrowing evidenced by the Note (i) are within the power and
authority of Borrower; (ii) have been authorized by all requisite organizational action; (iii) have received all necessary
approvals and consents, corporate, governmental or otherwise; (iv) will not violate, conflict with, result in a breach of or
constitute (with rotice or lapse of time, or both) a default under any provision of law, any order or judgment of any court
or governmental authority, the articles of incorporation, by-laws, partnership or trust agreement, articles of organization,
operating agreement, or other governing instrument of Borrower, or any indenture, agreement or other instrument to
which Borrower is a party or by which it or any of its assets or the Property is or may be bound or affected; (v) will not
result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of its assets, except the lien
and security interest created hereby; and (vi) will not require any authorization or license from, or any filing with, any
governmental or other body (except for the recordation of this Security Instrument in appropriate land records in the State
where the Property is located and except for Uniform Commercial Code filings relating to the security interest created
hereby), and (b) the Note, this Security Instrument and the Other Security Documents constitute the legal, valid and
binding obligations of Borrower, enforceable in accordance with their terms.
Section 4.4. LITIGATION. There is no action, suit or proceeding, judicial, administrative or otherwise (including
any condemnation or similar proceeding), pending or, to the best of Borrower's knowledge, threatened or contemplated
against Borrower, a Guarantor, if any, an Indemnitor, if any, or against or affecting the Property that has not been
disclosed to Lender by Borrower in writing.
Section 4.5. STATUS OF PROPERTY.
(a) Borrower has obtained all necessary certificates, licenses and other approvals, governmental and
otherwise, necessary for the operation of the Property and the conduct of its business and all required zoning, building
code, land use, environmental and other similar permits or approvals, all of which are in full force and effect as of the date
hereof and not subject to revocation, suspension, forfeiture or modification.
(b) The Property and the present and contemplated use and occupancy thereof are in full compliance
with all applicable zoning ordinances, building codes, land use laws, Environmental Laws and other similar laws.
(c) The Property is served by all utilities required for the current or contemplated use thereof. All
utility service is provided by public utilities and the Property has accepted or is equipped to accept such utility service.
(d) All public roads and streets necessary for service of and access to the Property for the current or
contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for
use by the public, and have been dedicated to and accepted for public maintenance by the applicable municipal or county
authorities.
(e) The Property is served by public water and sewer systems.
(f) The Property is free from damage caused by fire or other casualty.
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(g) All costs and expenses of any and all labor, materials, supplies and equipment used in the
construction of the Improvements have been paid in full.
(h) Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other
than tenants" property) used in connection with the operation of the Property, free and clear of any and all security
interests, liens or encumbrances, except the lien and security interest created hereby.
(i) All liquid and solid waste disposal, septic and sewer systems located on the Property are in a good
and safe condition and repair and in compliance with all Applicable Laws.
0) No portion of the Improvements is located in an area identified by the Federal Emergency
Management Agency or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance
Acts or, if any ?option of the Improvements is located within such area, Borrower has obtained and will maintain the
insurance required pursuant to the terms hereof.
(k) All the Improvements lie within the boundaries of the Land.
Section 4.6. NO FOREIGN PERSON. Borrower is not a "foreign person" within the meaning of Section 1445(f)(3)
of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations.
Section 4.7. SEPARATE TAX LOT. The Property is assessed for real estate tax purposes as one or more wholly
independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots,
and no other land or improvements is assessed and taxed together with the Property or any portion thereof.
Section 4.8. LEASES. Except as disclosed in the rent roll for the Property delivered to and approved by Lender, (a)
Borrower is the sole owner of the entire lessor's interest in the Leases; (b) the Leases are valid and enforceable and in full
force and effect; (c) all of the Leases are arms-length agreements with bona fide, independent third parties; (d) no party
under any Lease is in default; (e) all Rents due have been paid in full; (f) the terms of all alterations, modifications and
amendments to the Leases are reflected in the certified occupancy statement delivered to and approved by Lender, (g)
none of the Rents reserved in the Leases have been assigned or otherwise pledged or hypothecated; (h) none of the Rents
have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected
in advance); (i) the premises demised under the Leases have been completed in accordance with the Leases, and the
tenants under the Leases have accepted the same and have taken possession of the same on a rent-paying basis; 0) there
exist no offsets or defenses to the payment of any portion of the Rents and Borrower has no monetary obligation to any
tenant under any Lease; (k) Borrower has received no notice from any tenant challenging the validity or enforceability of
any Lease; (1) there are no agreements with the tenants under the Leases other than expressly set forth in each Lease; (m)
the Leases are valid and enforceable against Borrower and the tenants set forth therein; (n) no Lease contains an option to
purchase, right of first refusal to purchase, right of first refusal to relet, or any other similar provision; (o) no person or
entity has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease; (p) each Lease
is subordinate to this Security Instrument, either pursuant to its terms or a recordable subordination agreement; (q) no
Lease has the benefit of a non-disturbance agreement that would be considered unacceptable to prudent institutional
lenders; (r) all security deposits relating to the Leases reflected on the certified rent roll delivered to Lender have been
collected by Borrower; and (s) no brokerage commissions or finders fees are due and payable regarding any Lease.
Section 4.9. FINANCIAL CONDITION.
(a) (i) Borrower is solvent and no proceeding under Creditors Rights Laws (hereinafter defined) with
respect to Borrower has been initiated, and (ii) Borrower has received reasonably equivalent value for the granting of this
Security Instrument.
(b) No petition in bankruptcy has been filed by or against Borrower, any Guarantor, any Indemnitor or
any related entity, or any principal, general partner or member thereof, in the last seven (7) years, and neither Borrower,
any Guarantor, any lndemnitor nor any related entity, or any principal, general partner or member thereof, in the last
seven (7) years has ever made any assignment for the benefit of creditors or taken advantage of any Creditors Rights
Laws.
Section 4.10. BUSINESS PURPOSES. The loan evidenced by the Note secured by the Security Instrument and the
Other Security Documents (the "Loan") is solely for the business purpose of Borrower, and is not for personal, family,
household, or agricultural purposes.
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Section 4.11. TAXES. Borrower, any Guarantor and any Indemnitor have filed all federal, state, county, municipal,
and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and
related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them.
Neither Borrower, any Guarantor nor any Indemnitor knows of any basis for any additional assessment in respect of any
such taxes and related liabilities for prior years.
Section 4.12. MAILING ADDRESS. Borrower's mailing address, as set forth in the opening paragraph hereof or as
changed in accordance with the provisions hereof, is true and correct.
Section 4.13. NO CHANGE IN FACTS OR CIRCUMSTANCES. All information in the application for the Loan
submitted to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in
connection with the application or in satisfaction of the terms thereof, are accurate, complete and correct in all respects.
There has been ro adverse change in any condition, fact, circumstance or event that would make any such information
inaccurate, incomplete or otherwise misleading.
Section 4.14. DISCLOSURE. Borrower has disclosed to Lender all material facts and has not failed to disclose any
material fact that could cause any representation or warranty made herein to be materially misleading.
Section 4.15. THIRD PARTY REPRESENTATIONS. Each of the representations and the warranties made by each
Guarantor and Indemnitor in any Other Security Document(s) is true and correct in all material respects.
Section 4.16. ILLEGAL ACTIVITY. No portion of the Property has been or will be purchased, improved, equipped
or furnished with proceeds of any illegal activity and to the best of Borrower's knowledge, there are no illegal activities or
activities relating to controlled substances at the Property.
Section 4.17. PERMITTED EXCEPTIONS. None of the Permitted Exceptions, individually or in the aggregate,
materially interfere with the benefits of the security intended to be provided by the Security Instrument, the Note, and the
Other Security Documents, materially and adversely affect the value of the Property, impair the use or the operation of the
Property or impair Borrower's ability to pay its obligations in a timely manner.
Section 4.18. PRINCIPAL PLACE OF BUSINESS. Borrower's principal place of business is as set forth in the
opening paragraph to this Security Instrument.
Section 4.19. PROPERTY USE. The Property shall continue to be used in accordance with its present use, and for
no other use without the prior written consent of Lender.
ARTICLE 5. - OBLIGATIONS AND RELIANCE
Section 5.1. RELATIONSHIP OF BORROWER AND LENDER. The relationship between Borrower and Lender
is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with Borrower, and no term
or condition of any of the Note, this Security Instrument and the Other Security Documents shall be construed so as to
deem the relationship between Borrower and Lender to be other than that of debtor and creditor.
Section 5.2. NO RELIANCE, The members, general partners, principals and (if Borrower is a trust) beneficial
owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower
and Lender are relying solely upon such expertise in connection with the ownership and operation of the Property.
Borrower is not relying on Lender's expertise, business acumen or advice in connection with the Property.
Section 5.3. NO LENDER OBLIGATIONS. Notwithstanding anything to the contrary contained herein, Lender is
not undertaking the performance of (a) any obligations under the Leases; or (b) any obligations with respect to such
agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents. By
accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this
Security Instrument, the Note or the Other Security Documents, including without limitation, any officer's certificate,
balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall
not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or effectiveness of same, and such
acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.
Section 5.4. RELIANCE. Borrower recognizes and acknowledges that in accepting the Note, this Security
Instrument and the Other Security Documents, Lender is expressly and primarily relying on the truth and accuracy of the
12 3048817
warranties and representations set forth herein without any obligation to investigate the Property and notwithstanding any
investigation of the Property by Lender; that such reliance existed on the part of Lender prior to the date hereof; that the
warranties and representations are a material inducement to Lender in accepting the Note, this Security Instrument and the
Other Security Documents; and that Lender would not be willing to make the Loan and accept this Security Instrument in
the absence of the warranties and representations as set forth herein.
ARTICLE 6. - FURTHER ASSURANCES
Section 6.1. RECORDING OF SECURITY INSTRUMENT. ETC. Borrower forthwith upon the execution and
delivery of this Security Instrument and thereafter, from time to time, will cause this Security Instrument and any of the
Other Security Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required
by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof
upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all
expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, this Security Instrument,
the Other Security Documents, any note or mortgage supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and
all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Security Instrument, any mortgage supplemental hereto, any security instrument
with respect to tze Property or any instrument of further assurance, and any modification or amendment of the foregoing
documents, except where prohibited by law so to do.
Section 6.2. FURTHER ACTS. ETC. Borrower will, at the cost of Borrower, and without expense to Lender, do,
execute, acknowledge and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of
assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Lender the Property and rights hereby mortgaged, granted,
bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be,
or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the
intention or facilitating the performance of the terms of this Security Instrument or for filing, registering or recording this
Security Instrument, or for complying with all applicable state or federal law. Borrower, on demand, will execute and
deliver and hereby authorizes Lender, following 10 days' notice to Borrower, to execute in the name of Borrower or
without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence or perfect more effectively the security interest of Lender in the Property.
Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and
perfecting any and all rights and remedies available to Lender hereunder.
Section 6.3. CHANGES IN TAX. DEBT CREDIT AND DOCUMENTARY STAMP LAWS.
(a, If 'any law is enacted or adopted or amended after the date of this Security Instrument which
deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or
indirectly, on the Debt or Lender's interest in the Property, Borrower will pay the tax, with interest and penalties thereon,
if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to
Lender or unenforceable or provide the basis for a defense of usury, then Lender shall have the option, exercisable by
written notice of not less than ninety (90) days, to declare the Debt immediately due and payable.
(b) Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for
any part of the Taxes or Other Charges assessed against the Property, or any part thereof.
(c) If at any time the United States of America, any State thereof or any subdivision of any such State
shall require revenue or other stamps to be affixed to the Note, this Security Instrument, or any of the Other Security
Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties
thereon, if any.
Section 6.4. ESTOPPEL CERTIFICATES.
(a) After request by Lender. Borrower, within ten (10) days, shall furnish Lender or any proposed
assignee with a statement, duly acknowledged and certified, setting forth (i) the original principal amount of the Note, (ii)
the unpaid principal amount of the Note, (iii) the rate of interest of the Note, (iv) the terms of payment and maturity date
of the Note, (v) the date installments of interest and/or principal were last paid, (vi) that, except as provided in such
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or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such
partnership interest, or the Sale or Pledge of limited partnership interests or the creation or issuance of new limited
partnership interests in one or a series of transactions, by which such limited partnership interests shall be vested in a
party or parties who are not now limited partners; (v) if a Restricted Party is a limited liability company, any merger or
consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no
managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no
managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of
non-managing membership interests or the creation or issuance of new non-managing membership interests in one or a
series of transactions, by which such non-managing membership interests shall be vested in a party or parties who are not
now non-managing members, (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or
Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial
interests in one or a series of transactions, by which such beneficial or legal interests shall be vested in a party or parties
who are not now legal or beneficial owners; or (vii) the removal or the resignation of the managing agent (including,
without limitation, an Affiliated Manager) other than in accordance herewith.
Section 7.3. PERMITTED TRANSFERS. Notwithstanding anything to the contrary contained herein, the
following transfers shall not be deemed to be a Transfer: (a) a transfer by devise or descent or by operation of law upon
the death of a member, partner or shareholder of a Restricted Party; and (b) the Sale or Pledge of stock or limited
partnership or non-managing membership interests in a Restricted Party by which, in one or a series of transactions, in the
aggregate, not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing
membership inte:ests (as the case may be) in a Restricted Party, shall be vested in parties not now having an ownership
interest; provided, however, no such transfer shall result in the change of voting control in the Restricted Party, and as a
condition to each such transfer, Lender shall receive not less than ten (10) days prior written notice of such proposed
transfer.
Section 7.4. ASSIGNMENT/ASSUMPTION. Notwithstanding anything to the contrary contained in this Article 7,
and in addition to the transfers permitted hereunder, Lender may, in Lenders sole and absolute discretion, permit a sale,
assignment, or other transfer of the Property, provided that: (i) Lender receives sixty (60) days prior written notice of the
proposed transfer hereunder; (ii) no Event of Default has occurred and is continuing; and (iii) all underwriting
requirements deemed necessary by Lender (in its sole and absolute discretion) are satisfied, including but not limited to
the following:
(a) Borrower shall pay any and all fees and out-of-pocket costs incurred in connection with the transfer
of the Property (including, without limitation, Lender's counsel fees and disbursements and all recording fees, title
insurance premiums and mortgage and intangible taxes);
(b) The proposed transferee (the "Transferee") or Transferee's principals must have demonstrated
expertise in owning and operating properties similar in location, size and operation to the Property, which expertise shall
be determined by Lender, in Lender's sole discretion;
(c) Transferee and Transferee's principals shall, as of the date of such transfer, have an aggregate net
worth and liquidity acceptable to Lender, in Lender's sole discretion;
(d) Transferee shall assume all of the obligations of Borrower under the Loan Documents in all
respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to
Lender (in Lender's sole discretion) and one or more Transferee's principals shall execute in favor of Lender a Guaranty
and an Affidavit and Indemnity of Borrower and Guarantor Regarding Hazardous and Toxic Materials;
(e) No Event of Default or event which, with the giving of notice, passage of time or both, shall
constitute an Event of Default, shall otherwise occur as a result of such transfer, and Transferee and Transferee's
principals shall deliver (A) all organization documentation requested by Lender, which shall be satisfactory to Lender (in
Lenders sole discretion), and (B) all certificates, agreements and covenants required by Lender; and
(f) Borrower shall deliver, at its sole cost and expense, an endorsement to the existing title policy
insuring the Security Instrument, as modified by the assumption agreement, as a valid first lien on the Property and
naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the
assumption agreement, the Property shall not be subject to any additional exceptions or liens other than those contained in
the title policy is.3ued on the date hereof.
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15 3048817
statement, there are no defaults or events which with the passage of time or the giving of notice or both,
would constitute an event of default under the Note or the Security Instrument, (vii) that the Note and this Security
Instrument are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such
modification, (viii) whether any offsets or defenses exist against the obligations secured hereby and, if any are alleged to
exist, a detailed description thereof, (ix) that all Leases are in full force and effect and (provided the Property is not a
residential multifamily property) have not been modified (or if modified, setting forth all modifications), (x) the date to
which the Rents thereunder have been paid pursuant to the Leases, (xi) whether or not, to the best knowledge of
Borrower, any of the lessees under the Leases are in default under the Leases, and, if any of the lessees are in default,
setting forth the specific nature of all such defaults, (xii) the amount of security deposits held by Borrower under each
Lease and that such amounts are consistent with the amounts required under each Lease, and (xiii) as to any other matters
reasonably requested by Lender and reasonably related to the Leases, the obligations secured hereby, the Property or this
Security Instrument.
(b) Borrower shall use its best efforts to deliver to Lender, promptly upon request, duly executed
estoppel certificates from any one or more lessees as required by Lender attesting to such facts regarding the Lease as
Lender may require, including, but not limited to attestations that each Lease covered thereby is in full force and effect
with no defaults thereunder on the part of any party, that none of the Rents have been paid more than one month in
advance, except as security, and that the lessee claims no defense or offset against the full and timely performance of its
obligations under the Lease.
(c) Upon any transfer or proposed transfer of the Property at Lender's request, Borrower, any
Guarantors and any Indemnitor(s) shall provide an estoppel certificate in such form, substance and detail as Lender may
require.
Section 6.5. FLOOD INSURANCE. After Lender's request, Borrower shall deliver evidence satisfactory to Lender
that no portion of the Improvements is situated in a federally designated "special flood hazard area" or, if it is, that
Borrower has obtained insurance meeting the requirements hereof.
Section 6.6. REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an officer of Lender as to the loss,
theft, destruction or mutilation of the Note or any Other Security Document which is not of public record, and, in the case
of any such mutilation, upon surrender and cancellation of such Note or Other Security Document, Borrower will issue, in
lieu thereof, a replacement Note or Other Security Document, dated the date of such lost, stolen, destroyed or mutilated
Note or Other Security Document in the same principal amount thereof and otherwise of like tenor.
ARTICLE 7. - DUE ON SALVENCUMBRANCE
Section 7.1. TRANSFER DEFINITIONS. For purposes of this Article, an "Affiliated Manager" shall mean any
managing agent in which Borrower, any Guarantor or Indemnitor has, directly or indirectly, any legal, beneficial or
economic interest; a "Restricted Party" shall mean Borrower, any Guarantor, any Indemnitor, or any Affiliated Manager
or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of
Borrower, any Guarantor, any Indemnitor, any Affiliated Manager or any non-member manager; and a "Sale" shall mean
a voluntary or involuntary sale, conveyance, transfer or pledge of a legal or beneficial interest.
Section 7.2. NO SALEIENCUMBRANCE
(a) Borrower shall not sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options
with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law
or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial
interest therein (collectively a "Transfer"), other than pursuant to Leases of space in the Improvements to tenants in
accordance with the provisions hereof without the prior written consent of Lender.
(b) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower
agrees to sell thz Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing
all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment
or other transfer of, or the grant of a security interest in, Borrowers right, title and interest in and to any Leases or any
Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation's stock
or the creation or issuance of new stock in one or a series of transactions, by which such corporation's stock shall be
vested in a party or parties who are not now shareholders; (iv) if a Restricted Party is a limited or general partnership or
joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale
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14 3048817
If all Lender requirements have been satisfied (including but not limited to those listed hereinabove) and
Lender approves the proposed transfer to the Transferee, then Borrower shall be released from all liability under this
Security Instrument, the Note and the Other Loan Documents immediately upon the transfer of the Property to the
Transferee.
ARTICLE 8. - DEFAULT
Section 8.1. EVENTS OF DEFAULT. The occurrence of any one or more of the following events shall constitute
an "Event of Default":
(a) if any portion of the Debt is not paid on or prior to the date the same is due or if the entire Debt is
not paid on or before the Maturity Date;
(b) if Borrower fails to repay any sum paid or advanced by Lender under the terms of this Security
Instrument or anv Other Loan Document;
(c) if Borrower fails to repay any sum owed to Lender or its successor or assignee under the terms of
any other Security Instrument, promissory note or other loan document in connection with any other loan; provided that
such failure to repay shall constitute an Event of Default hereunder only if the person or entity to which payment is owed
under such other Security Instrument, promissory note or other loan document is the holder of the Note;
(d) if any of the Taxes or Other Charges is not paid when the same is due and payable except to the
extent sums sufficient to pay such Taxes and Other Charges have been deposited with Lender in accordance with the
terms of this Security Instrument;
(e) if the Policies are not kept in full force and effect, or if the Policies are not delivered to Lender as
provided herein;
(f) if Borrower violates or does not comply with any of the provisions of this Security Instrument or
any Other Loan Document;
(S) if any representation or warranty of Borrower, any Indemnitor or any person guaranteeing payment
of the Debt or any portion thereof or performance by Borrower of any of the terms of this Security Instrument (a
"Guarantor"), or any member, general partner, principal or beneficial owner of any of the foregoing, made herein or in
any guaranty, or in any certificate, report, financial statement or other instrument or document furnished to Lender shall
have been false or misleading in any material respect when made;
(h) if (i) Borrower or any managing member or general partner of Borrower, or any Guarantor or
Indemnitor shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors ("Creditors Rights
Laws"), seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Borrower or any managing member or general partner of
Borrower, or any Guarantor or Indemnitor shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against Borrower or any managing member or general partner of Borrower or any Guarantor or
Indemnitor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a
period of sixty (60) days; or (iii) there shall be commenced against the Borrower or any managing member or general
partner of Borrower, or any Guarantor or Indemnitor any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry
of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within
sixty (60) days from the entry thereof; or (iv) the Borrower or any managing member or general partner of Borrower or
any Guarantor or Indemnitor shall take any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any managing member or
general partner of Borrower, or any Guarantor or Indemnitor shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due;
W if Borrower shall be in default beyond applicable notice and grace periods under any of er
16 3048817
mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property
whether it be superior or junior in lien to this Security Instrument;
0) if the Property becomes subject to any mechanic's, materialman's or other lien other than a lien for
any Taxes not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise)
for a period of thirty (30) days;
(k) if any federal or state tax lien is filed against Borrower, any member or general partner of
Borrower, any Guarantor, any Indemnitor or the Property and same is not discharged of record within thirty (30) days
after same is filed;
(I) if any default occurs under any guaranty or indemnity executed in connection herewith, and such
default continues after the expiration of applicable grace periods, if any; or
(m) if Borrower tiles of record, without the prior written consent of Lender which Lender may grant or
withhold for any reason in its sole and absolute discretion, any notice limiting the maximum principal amount that may be
secured hereunder; or
(n) if Borrower sells, transfers (whether voluntary or by operation of law), pledges, hypothecates or
further encumbers all or any part of the Property or any interest therein or any interest in the Borrower (except as
otherwise expressly provided herein), or additionally assigns all or any part of the rents, income or profits arising
therefrom, in either case without the prior written consent of Lender, which may be withheld for any reason in Lender's
sole and absolute discretion; or
(o) if Borrower or any Guarantor or Indemnitor is dissolved, merges into another entity, or otherwise
terminates its existence (other than as specifically allowed pursuant to the terms hereof) or if the person(s) controlling
such entity shall take any action authorizing or leading to the same; or
(p) if for more than ten (10) days after notice from Lender, Borrower shall continue to be in default
under any other term, covenant or condition of the Note, this Security Instrument or the Other Security Documents in the
case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender
in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day
period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to cure the same, such thirty (30) day period shalt be extended for so long as it shall
require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a
period in excess of sixty (60) days.
ARTICLE 9. - RIGHTS AND REMEDIES
Section 9.1. REMEDIES. Upon the occurrence of any Event of Default, to the extent permitted by applicable law,
Borrower agrees that Lender may take any action available at law, in equity, and as otherwise provided in this Security
Instrument, without notice or demand, as it deems advisable to protect and enforce its rights against Borrower in and to
the Property, including, but not limited to the following actions, each of which may be pursued concurrently or otherwise,
at such time and in such order as Lender may determine, in its sole discretion, without impairing or otherwise affecting
the other rights and remedies of Lender:
(a) declare the entire unpaid Debt to be immediately due and payable;
(b) institute proceedings, judicial or otherwise, for the complete foreclosure of this Security Instrument
under any applicable state or federal law in which case the Property or any interest therein may be sold for cash or upon
credit in one or more parcels or in several interests or portions and in any order or manner;
(c; with or without entry, to the extent permitted and pursuant to the procedures provided by applicable
state or federal law, institute proceedings for the partial foreclosure of this Security Instrument for the portion of the Debt
then due and payable, subject to the continuing lien and security interest of this Security Instrument for the balance of the
Debt not then due, unimpaired and without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof and all estate, claim, demand, right, title
and interest of Borrower therein and rights of redemption thereof, pursuant to power of sale or otherwise, at one or more
17
3048817
sales, in one or more parcels, at such time and place, upon such terms and after such notice thereof as may
be required or permitted by law;
(e) institute an action, suit or proceeding in equity for the specific performance of any covenant,
condition or agreement contained herein, in the Note or in the Other Security Documents;
(f) recover judgment on the Note either before, during or after any proceedings for the enforcement of
this Security Instrument or the Other Security Documents;
(g) apply for the appointment of a receiver, trustee, liquidator or conservator of the Property, without
notice and without regard for the adequacy of the security for the Debt and without regard for the solvency of Borrower,
any Guarantor, Indemnitor or of any person, firm or other entity liable for the payment of the Debt;
(h) subject to any applicable state or federal law, the license granted to Borrower to collect and receive
rents hereunder shall automatically be revoked and Lender may enter into or upon the Property, either personally or by its
agents, nominees or attorneys and dispossess Borrower and its agents and servants therefrom, without liability for
trespass, damages or otherwise and exclude Borrower and its agents or servants wholly therefrom, and take possession of
all rent rolls, leases (including the form lease) and amendments and exhibits, subleases (including the form sublease) and
amendments and exhibits and rental and license agreements with the tenants, subtenants and licensees in possession of the
Property or any ?art or parts thereof; tenants', subtenants' and licensees' money deposits or other property (including,
without limitation, any letter of credit) given to secure tenants', subtenants' and licensees' obligations under leases,
subleases or licenses, together with a list of the foregoing; all lists pertaining to current rent and license fee arrears; any
and all architects' plans and specifications, licenses and permits, documents, books, records, accounts, surveys and
property which relate to the management, leasing, operation, occupancy, ownership, insurance, maintenance, or service of
or construction upon the Property and Borrower agrees to surrender possession thereof and of the Property to Lender
upon demand, and thereupon Lender may (i) use, operate, manage, control, insure, maintain, repair, restore and otherwise
deal with all and every part of the Property and conduct the business thereat; (ii) complete any construction on the
Property in such manner and form as Lender deems advisable; (iii) make alterations, additions, renewals, replacements
and improvemen-s to or on the Property; (iv) exercise all rights and powers of Borrower with respect to the Property,
whether in the name of Borrower or otherwise, including without limitation, the right to make, cancel, enforce or modify
Leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents of the Property and every part thereof;
(v) either require Borrower (A) to pay monthly in advance to Lender, or any receiver appointed to collect the Rents, the
fair and reasonable rental value for the use and occupation of such part of the Property as may be occupied by Borrower,
or (B) to vacate and surrender possession of the Property to Lender or to such receiver and, in default thereof, Borrower
may be evicted by summary proceedings or otherwise; and (vi) apply the receipts from the Property to the payment of the
Debt, in such order, priority and proportions as Lender shall deem appropriate in its sole discretion after deducting
therefrom all expenses (including reasonable attorneys' fees) incurred in connection with the aforesaid operations and all
amounts necessary to pay the Taxes, Other Charges, Insurance Premiums and other expenses in connection with the
Property, as well as just and reasonable compensation for the services of Lender, its counsel, agents and employees;
W exercise any and all rights and remedies granted to a secured party upon default under the Uniform
Commercial Cote, including, without limiting the generality of the foregoing: (i) the right to take possession of the
Personal Property or any part thereof, and to take such other measures as Lender may deem necessary for the care,
protection and preservation of the Personal Property, and (ii) request Borrower at its expense to assemble the Personal
Property and make it available to Lender at a convenient place acceptable to Lender. Any notice of sale, disposition or
other intended action by Lender with respect to the Personal Property sent to Borrower in accordance with the provisions
hereof at least five (S) days prior to such action, shall constitute commercially reasonable notice to Borrower;
Q) apply any sums then deposited in the Escrow Fund and any other sums held in escrow or otherwise
by Lender in accordance with the terms of this Security Instrument or any Other Security Document to the payment of the
following items in any order in its sole discretion: (i) Taxes and Other Charges; (ii) Insurance Premiums; (iii) interest on
the unpaid principal balance of the Note; (iv) amortization of the unpaid principal balance of the Note; and (v) all other
sums payable pursuant to the Note, this Security Instrument and the Other Security Documents, including, without
limitation, advances made by Lender pursuant to the terms of this Security Instrument;
(k) surrender the Policies maintained pursuant hereto, collect the unearned Insurance Premiums and
apply such sums as a credit on the Debt in such priority and proportion as Lender in its discretion shall deem proper, and
in connection therewith, Borrower hereby appoints Lender as agent and attorney-in-fact (which is coupled with an interest
and is therefore irrevocable) for Borrower to collect such untamed Insurance Premiums;
6-1-?
18 3048817
(1) apply the undisbursed balance of any net proceeds deficiency deposit, together with interest
thereon, to the payment of the Debt in such order, priority and proportions as Lender shall deem to be appropriate in its
discretion; or
(m) pursue such other remedies as Lender may have under applicable state or federal law.
In the event of a sale, by foreclosure, to the extent permitted by applicable law, power of sale, or otherwise,
of less than all of the Property, this Security Instrument shall continue as a lien and security interest on the remaining
portion of the Property unimpaired and without loss of priority. Notwithstanding the provisions of this Section to the
contrary, if any Event of Default shall occur, and the Lender elects to declare the entire unpaid Debt to be automatically
due and payable, such remedy may be pursued without any further notice, demand or other action by Lender.
Section 9.2. APPLICATION OF PROCEEDS. The purchase money, proceeds and avails of any disposition of the
Property, or any part thereof, or any other sums collected by Lender pursuant to the Note, this Security Instrument or the
Other Security Documents, may be applied by Lender to the payment of the Debt in such priority and proportions as
Lender in its discretion shall deem proper and which are in accordance with applicable law or as shall be required by a
court of competent jurisdiction.
Section 9.3. RIGHT TO CURE DEFAULTS. Upon the occurrence of any Event of Default or if Borrower fails to
make any payment or to do any act as herein provided, Lender may, but without any obligation to do so and without
notice to or demand on Borrower and without releasing Borrower from any obligation hereunder, make or do the same in
such manner and to such extent as Lender may deem necessary to protect the security hereof. Lender is authorized to
enter upon the Property for such purposes, or appear in, defend, or bring any action or proceeding to protect its interest in
the Property or to foreclose this Security Instrument or collect the Debt. The cost and expense of any cure hereunder
(including reasonable attorneys' fees to the extent permitted by law), with interest at the Default Rate (defined in the
Note), shall constitute a portion of the Debt and shall be due and payable to Lender upon demand. All costs and expenses
incurred by Lender in remedying any Event of Default or failed payment or act or in appearing in, defending, or bringing
any such action or proceeding shall bear interest at the Default Rate defined in the Note, for the period after notice from
Lender that such cost or expense was incurred to the date of payment to Lender. All such costs and expenses incurred by
Lender together with interest thereon calculated at the Default Rate shall be deemed to constitute a portion of the Debt
and be secured by this Security Instrument and the Other Security Documents and shall be immediately due and payable
upon demand by Lender therefor.
Section 9.4. ACTIONS AND PROCEEDINGS. At any time, Lender has the right to appear in and defend,
compromise or settle any action or proceeding brought with respect to the Property, and after the occurrence and during
the continuance of an Event of Default, to bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its discretion, decides should be brought to protect its interest in the Property.
Section 9.5. RECOVERY OF SUMS REQUIRED TO BE PAID. Lender shall have the right from time to time to
take action to recover any sum or sums which constitute a part of the Debt as the same become due, without regard to
whether or not the balance of the Debt shall be due, and without prejudice to the right of Lender thereafter to bring an
action of foreclosure, or any other action, for a default or defaults by Borrower existing at the time such earlier action was
commenced.
Section 9.6. EXAMINATION OF BOOKS AND RECORDS. Lender, its agents, accountants and attorneys shall
have the right upon prior written notice to Borrower (unless an Event of Default exists, in which case no notice shall be
required), to examine and audit, during reasonable business hours, the records, books, management and other papers of
Borrower and its affiliates or of any Guarantor or Indemnitor which pertain to their financial condition or the income,
expenses and operation of the Property, at the Property or at any office regularly maintained by Borrower, its affiliates or
any Guarantor or Indemnitor where the books and records are located. Lender and its agents shall have the right upon
notice to make copies and extracts from the foregoing records and other papers at no cost to Lender.
Section 9.7. OTHER RIGHTS. ETC.
(a) The failure of Lender to insist upon strict performance of any term hereof shall not be deemed to be
a waiver of any term of this Security Instrument. Borrower shall not be relieved of Borrower's obligations hereunder by
reason of (i) the failure of Lender to comply with any request of Borrower, any Guarantor or any Indemnitor to take any
action to foreclose this Security Instrument or otherwise enforce any of the provisions hereof or of the Note or the Other
Security Documents, (ii) the release, regardless of consideration, of the whole or any part of the Property, or of any
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person liable for the Debt or any portion thereof, or (iii) any agreement or stipulation by Lender extending
the time of payment, changing the rate of interest, or otherwise modifying or supplementing the terms of the Note, this
Security Instrument or the Other Security Documents.
(b) It is agreed that the risk of loss or damage to the Property is on Borrower, and Lender shall have no
liability whatsoever for decline in value of the Property, for failure to maintain the Policies, or for failure to determine
whether insurance in force is adequate as to the amount of risks insured. Possession by Lender shall not be deemed an
election of judicial relief, if any such possession is requested or obtained, with respect to any Property or collateral not in
Lender's possession.
(c) Lender may resort for the payment of the Debt to any other security held by or guaranties given to
Lender in such order and manner as Lender, in its discretion, may elect. Lender may take action to recover the Debt, or
any portion thereof, or to enforce any covenant hereof without prejudice to the right of Lender thereafter to foreclose this
Security Instrument. The rights of Lender under this Security Instrument shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Lender shall be construed as an election to proceed
under any one provision herein to the exclusion of any other provision. Lender shall not be limited exclusively to the
rights and remedies herein stated but shall be entitled to every right and remedy now or hereafter afforded at law or in
equity.
Section 9.8. RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may release any portion of the
Property for such consideration as Lender may require without, as to the remainder of the Property, in any way impairing
or affecting the lien or priority of this Security Instrument, or improving the position of any subordinate lienholder with
respect thereto, except to the extent that the obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by assignment, pledge or otherwise any other
property in place thereof as Lender may require without being accountable for so doing to any other lienholder. This
Security Instrument shall continue as a lien and security interest in the remaining portion of the Property.
Section 9.9. VIOLATION OF LAWS. If the Property is not in compliance with Applicable Laws, Lender may
impose additional requirements upon Borrower in connection herewith including, without limitation, monetary reserves or
financial equivalents.
Section 9.10. RIGHT OF ENTRY. Lender and its agents shall have the right to enter and inspect the Property at all
reasonable times.
Section 9.11. SUBROGATION. If any or all of the proceeds of the Note have been used to extinguish, extend or
renew any indebtedness heretofore existing against the Property, then, to the extent of the funds so used, Lender shall be
subrogated to all of the rights, claims, liens, titles, and interests existing against the Property heretofore held by, or in
favor of, the holder of such indebtedness and such former rights, claims, liens, titles, and interests, if any, are not waived
but rather are continued in full force and effect in favor of Lender and are merged with the lien and security interest
created herein as cumulative security for the repayment of the Debt, the performance and discharge of Borrowers
obligations hereunder, under the Note and the Other Security Documents and the performance and discharge of the Other
Obligations.
ARTICLE 10. - ENVIRONMENTAL HAZARDS
Section 10.1. ENVIRONMENTAL DEFINITIONS. For the purpose of this Section, "Environmental Law" means
any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other
government directives or requirements, as well as common law, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply
to Borrower or the Property and relate to Hazardous Materials. "Environmental Liens" means all Liens and other
encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other
person or entity. "Environmental Report" means the written reports resulting from the environmental site assessments of
the Property delivered to Lender. "Hazardous Materials" shall mean petroleum and petroleum products and compounds
containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials;
polychlorinated biphenyls ("PCBs") and compounds containing them; lead and lead-based paint; asbestos or asbestos-
containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether
empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal,
state or local authority; any substance that requires special handling; and any other material or substance now or in the
future defined as a "hazardous substance," "hazardous material," "hazardous waste," "toxic substance," "toxic pollutant,"
6)
20 30488]7
"contaminant," or "pollutant" within the meaning of any Environmental Law. "Release" of any Hazardous Materials
includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting,
pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.
Section 10.2. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except
those that arc bosh (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits
are required), if any, and (ii) either (A) in amounts not in excess of that necessary to operate the Property or (B) fully
disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or
threatened (defined below) Release of Hazardous Materials in violation of any Environmental Law and which would
require remediation by a governmental authority in, on, under or from the Property except as described in the
Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as
described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with
permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e)
Borrower does not know of, and has not received, any written or oral notice or other communication from any person or
entity (including but not limited to a governmental entity) relating to Hazardous Materials in, on, under or from the
Property; and (f; Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to
environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower's files and
records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the
Property and/or to the environmental condition of the Property.
Section 10.3. ENVIRONMENTAL COVENANTS. Borrower covenants and agrees that so long as Borrower
owns, manages, is in possession of, or otherwise controls the operation of the Property: (a) all uses and operations on or
of the Property, whether by Borrower or any other person or entity, shall be in compliance with all Environmental Laws
and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the
Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in
compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii)
(A) in amounts not in excess of that necessary to operate the Property or (B) fully disclosed to and approved by Lender in
writing; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost
and expense, fully and expeditiously cooperate in all activities pursuant to this Section, including but not limited to
providing all relevant information and making knowledgeable persons available for interviews; (I) Borrower shall, at its
sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in
connection with the Property, pursuant to any reasonable written request of Lender, upon Lenders reasonable belief that
the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results
thereof, and Lender and other Indemnified Parties (hereinafter defined) shall be entitled to rely on such reports and other
results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to
(i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with
any Environmental Law; (h) Borrower shall not allow any tenant or other user of the Property to violate any
Environmental Law; and (i) Borrower shall immediately notify Lender in writing after it has become aware of (A) any
presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards the Property;
(B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential
Environmental Lien; (D) any required or proposed remediation of environmental conditions relating to the Property; or
(E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever
(including but not limited to a governmental entity) relating in any way to Hazardous Materials. Any failure of Borrower
to perform its obligations pursuant to this Section 10.3 shall constitute bad faith waste with respect to the Property.
Section 10.4. LENDER'S RIGHTS. Lender and any other person or entity designated by Lender, including but not
limited to any representative of a governmental entity, and any environmental consultant, and any receiver appointed by
any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable
times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to
conducting any environmental assessment or audit at Borrowers expense (the scope of which shall be determined in
Lenders sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting
other invasive tzsting. Borrower shall cooperate with and provide access to Lender and any such person or entity
designated by Lender.
Section 10.5. OPERATIONS AND MAINTENANCE PROGRAMS. If recommended by the Environmental Report
or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations
and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared
by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos containing
material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the
C
21 3048817
generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and
at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address
changing circumstances, laws or other matters, (c) at Borrower's sole expense, supplemental examination of the Property
by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the
environmental condition of the Property and Borrowers compliance with any operations and maintenance program, and
(e) variation of the operations and maintenance program in response to the reports provided by any such consultants.
ARTICLE 11. - INDEMNIFICATION
Section 11.1. GENERAL INDEMNIFICATION. Borrower shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless the Indemnified Parties (defined below) from and against any and all Losses
(defined below) imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising
out of or in any way relating to any one or more of the following (a) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (b)any use, nonuse or condition in, on or about the Property
or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c)
performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any
part thereof; (d) any failure of the Property to be in compliance with any Applicable Laws; (e) any and all claims and
demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) Borrower's breach of
any term, covenant, condition, representation or warranty contained herein; or (g) the payment of any commission, charge
or brokerage fee to anyone which may be payable in connection with the funding of the Loan evidenced by the Note and
secured by this Security Instrument. Any amounts payable to Lender by reason of the application of this Section shall
become immediately due and payable and shall bear interest at the Default Rate from the date loss or damage is sustained
by Lender until paid. The term "Losses" shall mean any and all claims, suits, liabilities (including, without limitation,
strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees,
judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to attorneys' fees and
other costs of defense). The term "Indemnified Parties" shall mean (a) Lender, (b) any prior owner or holder of the Note,
(c) any servicer or prior servicer of the Loan, (d) any Investor (defined below) or any prior Investor in any Participations
(defined below), (e) any trustees, custodians or other fiduciaries who hold or who have held a full or partial interest in the
Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or
other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents,
servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the
heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any
successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties' assets and
business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Loan.
Section 11.2. MORTGAGE. DOCUMENTARY STAMPS AND/OR INTANGIBLE TAX. Borrower shall, at its
sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any
and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising
out of or in any way relating to any tax or fee on the making and/or recording of this Security Instrument, the Note or any
of the Other Security Documents.
Section 11.3. DUTY TO DEFEND: ATTORNEYS' FEES AND OTHER FEES AND EXPENSES. Upon written
request by any Indemnified Party, Borrower shall defend such Indemnified Party (if requested by any Indemnified Party,
in the name of the Indemnified Party) by attorneys and other professionals approved by the Indemnified Parties.
Notwithstanding the foregoing, any Indemnified Parties may, in their sole discretion, engage their own attorneys and
other professionals to defend or assist them, and, at the option of Indemnified Parties, their attorneys shall control the
resolution of any claim or proceeding. Upon demand, Borrower shall pay or, in the sole discretion of the Indemnified
Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories, surveyors, title searches and other professionals in connection therewith, which
any Indemnified Parties may engage as a result of any Losses.
Section 11.4. ENVIRONMENTAL INDEMNITY. As between Borrower and Lender, all risk of loss associated
with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within,
contiguous to cr otherwise affecting the Property, shall lie solely with Borrower. Accordingly, Borrower shall bear all
risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or
liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Lender or by
law. Borrower shall indemnify, defend and hold Lender harmless from and against all loss, liabilities, damages, claims,
costs and expenses (including reasonable costs of defense) arising out of or associated, in any way, with the non- -
22 3048817
compliance with Environmental Laws, or the existence of Hazardous Materials in, on, or about the Property, or a breach
of any representation, warranty or covenant contained in Article 10 hereof, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint,
concurrent, or comparative negligence of Lender; however, Borrower shall not be liable under such indemnification to the
extent such loss, liability, damage, claim, cost or expense results solely from Lenders gross negligence or willful
misconduct. Borrower's obligations hereunder shall arise upon the discovery of the presence of any Hazardous Material,
whether or not any governmental authority has taken or threatened any action in connection with the presence of any
Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account
thereof is disclosed in any site assessment and shall continue notwithstanding the repayment of the Note or any transfer or
sale of any right, title and interest in the Property (by foreclosure, deed in lieu of foreclosure or otherwise). Of even date
herewith, Borrower and other persons or entities (collectively, Borrower and such other parties, the "Indemnitors") may as
circumstances require execute and deliver a certain environmental indemnity agreement in favor of the Lender
incorporating the environmental indemnities set forth herein as well as additional provisions and requirements with
respect to envircnmental matters (the "Environmental Indemnity"). In the event an Environmental Indemnity is executed,
it shall be included in the definition of "Other Security Documents".
ARTICLE 12. - WAIVERS
Section 12.1. WAIVER OF COUNTERCLAIM. Borrower hereby waives the right to assert a counterclaim, other
than a mandatory or compulsory counterclaim, in any action or proceeding brought against it by Lender arising out of or
in any way connected with this Security Instrument, the Note, any of the Other Security Documents, or the Obligations.
Section 12.2. MARSHALLING AND OTHER MATTERS. Borrower hereby waives, to the extent permitted by
law, the benefit of all appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in
force, the equity of redemption and any statutory right of redemption, and all rights of marshalling in the event of any sale
hereunder of the Property or any part thereof or any interest therein. Further, Borrower hereby expressly waives any and
all rights of redemption from sale under any order or decree of foreclosure of this Security Instrument on behalf of
Borrower, and on behalf of each and every person acquiring any interest in or title to the Property subsequent to the date
of this Security Instrument and on behalf of all persons to the extent permitted by applicable state or federal law.
Section 12.3. WAIVER OF NOTICE. Borrower shall not be entitled to any notices of any nature whatsoever from
Lender except (a) with respect to matters for which this Security Instrument specifically and expressly provides for the
giving of notice by Lender to Borrower and (b) with respect to matters for which Lender is required by applicable state or
federal law to give notice, and Borrower hereby expressly waives the right to receive any notice from Lender with respect
to any matter for which this Security Instrument does not specifically and expressly provide for the giving of notice by
Lender to Borrower.
Section 12.4. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby expressly waives and releases to
the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or
performance of its Other Obligations-
Section 12.5. SOLE DISCRETION OF LENDER. Wherever pursuant to this Security Instrument (a) Lender
exercises any right given to it to approve or disapprove, (b) any arrangement or term is to be satisfactory to Lender, or (c)
any other decision or determination is to be made by Lender, the decision to approve or disapprove all decisions that
arrangements cr terms are satisfactory or not satisfactory, and all other decisions and determinations made by Lender,
shall be in the sole discretion of Lender, except as may be otherwise expressly and specifically provided herein.
Section 12.6. WAIVER OF FORECLOSURE DEFENSE. Borrower hereby waives any defense Borrower might
assert or have by reason of Lender's failure to make any tenant or lessee of the Property a party defendant in any
foreclosure proceeding or action instituted by Lender.
Section 12.7 WAIVER REGARDING FEES. The Borrower hereby expressly waives and releases, to the fullest
extent it may lEwfully do so, all benefit of any present or future moratorium law, the merger doctrine, and other present or
future law, regulation or judicial decision that may be necessary for Lender to protect and enforce its claims against
Borrower for or relating to the collection of the full amount of attorneys fees, costs, insurance premiums, taxes and other
similar advances and claims, whether arising or asserted prior to or subsequent to the entry of judgment by Lender
against Borrower.
ARTICLE 13. - NOTICES
23 3048817
Section 13.1. NOTICES . All notices or other written communications hereunder shall be deemed to have been
properly given (a) upon delivery, if delivered in person with receipt acknowledged by the recipient thereof, (b) one (1)
Business Day (defined below) after having been deposited for overnight delivery with any reputable overnight courier
service, or (c) three (3) Business Days after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested,
addressed to Bo--rower or Lender, as the case may be, at the addresses set forth on the first page of this Security
Instrument or addressed as such party may from time to time designate by written notice to the other parties.
Either party by notice to the other may designate additional or different addresses for subsequent notices or
communications, For purposes of this Subsection, "Business Day" shall mean a day on which commercial banks are not
authorized or required by law to close in New York, New York.
ARTICLE 14. - CHOICE OF LAW
Section 14.1. CHOICE OF LAW. This Security Instrument and any determination of deficiency judgments shall be
governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and
applicable federal law.
Section 14.2. PROVISIONS SUBJECT TO LAW. All rights, powers and remedies provided in this Security
Instrument may be exercised only to the extent that the exercise thereof does not violate any applicable state or federal
law and are intended to be limited to the extent necessary so that they will not render this Security Instrument invalid,
unenforceable or not entitled to be recorded, registered or filed under any applicable state or federal law.
ARTICLE 15. - SECONDARY MARKET
Section 15.1. TRANSFER OF LOAN. Lender may, at any time, sell, transfer or assign the Note, this Security
Instrument and the Other Security Documents, and any or all servicing rights with respect thereto, or grant participations
therein (the "Participations") or issue mortgage passthrough certificates or other securities evidencing a beneficial interest
in a rated or unrated public offering or private placement (the "Securities"). Lender may forward to each purchaser,
transferee, assignee, servicer, participant, or investor in such Participations or Securities (collectively, the "Investor") or
any Rating Agency rating such Securities, each prospective Investor, and any organization maintaining databases on the
underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or
may hereafter acquire relating to the Debt and to Borrower, any Guarantor, any Indemnitor(s) and the Property, whether
furnished by Borrower, any Guarantor, any Indemnitor(s) or otherwise, as Lender determines necessary or desirable.
Borrower irrevocably waives any and all rights it may have under applicable state or federal law to prohibit such
disclosure, including but not limited to any right of privacy.
Section 15.2. COOPERATION. Borrower, any Guarantor and any Indemnitor agree to cooperate with Lender in
connection with any transfer made pursuant to this Section, including, without limitation, the delivery of an estoppel
certificate required pursuant to the terms hereof and such other documents as may be reasonably requested by Lender.
Borrower shall also furnish and Borrower, any Guarantor and any Indemnitor consent to Lender furnishing to such
Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the
Leases, the financial condition of Borrower, any Guarantor and any Indemnitor as may be requested by Lender, any
Investor or any prospective Investor or any Rating Agency in connection with any sale, transfer or Participations or
Securities.
ARTICLE 16. - COSTS
Section 16.1. PERFORMANCE AT BORROWER'S EXPENSE. Borrower acknowledges and confirms that Lender
shall impose certain administrative processing and/or commitment fees in connection with (a) the extension, renewal,
modification, atrendment and termination of the Loan, (b) the release or substitution of collateral therefor, (c) obtaining
certain consents, waivers and approvals with respect to the Property, or (d) the review of any Lease or proposed Lease or
the preparation or review of any subordination, non-disturbance agreement (the occurrence of any of the above shall be
called an "Event'). Borrower further acknowledges and confirms that it shall be responsible for the payment of all costs
of reappraisal of the Property or any part thereof, whether required by law, regulation, Lender or any governmental or
quasi-governmental authority. Borrower hereby acknowledges and agrees to pay, immediately, with or without demand,
all such fees (as the same may be increased or decreased from time to time), and any additional fees of a similar type or
nature which may be imposed by Lender from time to time, upon the occurrence of any Event or otherwise. Wherever it
is provided for herein that Borrower pay any costs and expenses, such costs and expenses shall include, but not be limited
24 3048817
to, all reasonable counsel fees of Lender.
Section 16.2. COUNSEL FEES FOR ENFORCEMENT. (a) Borrower shall pay all reasonable counsel fees
incurred by Lender in connection with (i) the preparation of the Note, this Security Instrument and the Other Security
Documents; and (ii) the items set forth in this Article, and (b) Borrower shall pay to Lender on demand any and all
expenses, including legal fees incurred or paid by Lender in protecting its interest in the Property or in collecting any
amount payable under the Note, this Security Instrument or the Other Security Documents, or in enforcing its rights
hereunder with respect to the Property, whether or not any legal proceeding is commenced hereunder or thereunder,
together with interest thereon at the Default Rate from the date paid or incurred by Lender until such expenses are paid by
Borrower.
ARTICLE 17. - DEFINITIONS
Section 17.1. GENERAL DEFINITIONS. Unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used in this Security Instrument may be used interchangeably in singular or plural
form and the wcrd "Borrower" shall mean "each Borrower and any subsequent owner or owners of the Property or any
part thereof or any interest therein," the word "Lender" shall mean "Lender and any subsequent holder of the Note," the
word "Note" shall mean "the Note and any other evidence of indebtedness secured by this Security Instrument," the word
"person" shall include an individual, corporation, limited liability company, partnership, trust, unincorporated association,
government, governmental authority, and any other entity, the word "Property" shall include any portion of the Property
and any interest therein, and the phrases "counsel fees" shall include any and all attorneys", paralegal and law clerk fees
and disbursements, including, but not limited to fees and disbursements at the pre-trial, trial and appellate levels incurred
or paid by Lender in protecting its interest in the Property, the Leases and the Rents and enforcing its rights hereunder,
whether with respect to retained firms, the reimbursement for the expenses of in-house staff or otherwise.
Section 17.2. HEADINGS. ETC. The headings and captions of various Articles and Sections of this Security
Instrument are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope
or intent of the provisions hereof.
ARTICLE 18. - MISCELLANEOUS PROVISIONS
Section 18.1. NO ORAL CHANGE. This Security Instrument, and any provisions hereof, may not be modified,
amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is sought.
Section 18.2. LIABILITY. If Borrower consists of more than one person, the obligations and liabilities of each such
person hereunder shall be joint and several. This Security Instrument shall be binding upon and inure to the benefit of
Borrower and Lender and their respective successors, assigns, heirs, personal representatives, executors and
administrators forever.
Section 18.3. INAPPLICABLE PROVISIONS. If any term, covenant or condition of the Note or this Security
Instrument is held to be invalid, illegal or unenforceable in any respect, the Note and this Security Instrument shall be
construed withcut such provision.
Section 18.4. DUPLICATE ORIGINALS: COUNTERPARTS. This Security Instrument may be executed in any
number of duplicate originals and each duplicate original shall be deemed to be an original. This Security Instrument
may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of
which together shall constitute a single Security Instrument. The failure of any party hereto to execute this Security
Instrument, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.
Section 18.5. NUMBER AND GENDER. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include
the plural and vice versa.
Section 18.6. LEGAL DESCRIPTION. Borrower represents to Lender that it has reviewed and delivered to Lender
a copy of the legal description set forth in Exhibit "A"; that such legal description is the accurate and proper legal
description of the Land; and Borrower further acknowledges that neither Lender nor Lender's counsel prepared or
reviewed such legal description. Borrower shall indemnify, defend and hold Lender harmless from and against any and
SG
25 3048817
all losses, liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs or disbursements
of any kind or nature whatsoever, including the reasonable fees and actual expenses of Lender's counsel, in connection
with any claim that title to the Property is impaired due to or based upon an inaccurate or improper legal description set
forth herein.
Section 18.7. INCONSISTENCIES. In the event of any inconsistencies between the terms and conditions of this
Article and the other provisions of this Security Instrument, the terms and conditions of this Article shall control and be
binding.
Section 18.8. WAIVER OF TRIAL BY JURY. BORROWER BY ACCEPTANCE OF THIS SECURITY
INSTRUMENT, HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE APPLICATION FOR THE LOAN,
THE NOTE, THIS SECURITY INSTRUMENT OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR
OMISSIONS OF LENDER OR BORROWER.
[NO FURTHER TEXT - SIGNATURES APPEAR ON NEXT PAGE]
THIS INSTRUMENT INCLUDES A RIDER, THE TERMS OF WHICH ARE ATTACHED HERETO AND BY
THIS REFERENCE MADE A PART HEREOF
26 3048817
IN WITNESS WHEREOF, this Security Instrument has been executed by borrower the day and year first
above written.
Signed, sealed and delivered
in the presence of:
Borrower:
dnt Name:_Gais / • xr Hc? '?/ ?Z ?c
Samuel =Chandler
Print Name:
This Instrument prepared by: Antonio Chimienti, Esq.
Upon recording return to: Bayview Lending Group, LLC
Attn: Title Processing Department
4425 Ponce de Leon Blvd., 4th Floor
Coral Gables, FL 33146
27 3048817
ACKNOWLEDGMENT
COMMONWEALTH OF )
PENNSYLVANIA ss.:
COUNTY OF
l G.n? )
The foregoing instrument was acknowledged bef re me on June 12, X2008 by Samuel D Chandler.
He/she is personally known tome or produced ?d Lt C,e.nI-Ik as
identification, and did/did not take an oath.
[Official Notary Seal]
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Lisa A. Seay. Notary Public
Chy of HarrjSWrg, Dauphin 2 County
11
My Commission Expires.hM
Member, Pennsylvaroo Association of NoW668
Notary Public,`Comrrionwealthrof Pennsylvania
Print or Type Name: <<ra A_T
My Co mission.•E1 res:
28
3048817
EXHIBIT A -LEGAL DESCRIPTION
Tax ID Number(s): 12-22-0824289
Land situated in the Borough of Lemoyne in the County of Cumberland in the State of
PA
All that certain lot of land situate in the Borough of Lemoyne, Cumberland
County, Pennsylvania, more particularly bounded and described as follows to wit:
Bounded on the South by a 15 feet wide alley, said alley being adjacent to and
parallel with the Northern line of land of-the Philadelphia, Barrisburg and
Pittsburgh Railroad Company, now the Philadelphia and Reading Railway
Company; on the East side by Blackberry Alley and on the North by Peach Alley,
and extends along said 15 feet wide alley 375 feet, more or less, along Blackberry
Alley, 112 112 feet, more or less, and along Peach Alley, 350 feet, more or less, as
more fully set forth and designated in the plot of the Borough of Lemoyne
(MacDonald and Roberts, Engineers) recorded in Plan Book 1, Page 59.
Commonly known as: 231 South 8Th Street, Lemoyne, PA 17043
Page 6 of 9
RIDER TO MORTGAGE AND SECURITY AGREEMENT
( PENNSYLVANIA)
THIS RIDER is made June 12, 2008, and is incorporated into and shall be deemed to amend and
supplement the Mortgage and Security Agreement (the "Security Instrument") of the same date
hereof, given by Samuel D Chandler (the "Borrower") to secure that certain Promissory Note in the
amount of One Hundred Eighty-Nine Thousand and No/100 Dollars ($189,000.00) (the "Note")
given to Silver Hill Financial, LLC, a Delaware Limited Liability Company, (the "Lender"), on the
same date hereof and covering the Property described in the Security Instrument and located at 231
South 8th Street, Lemoyne, PA 17043 (the "Property Address").
In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender
further covenant and agree as follows:
The Security Instrument is also known as an Open End Mortgage and Security Agreement
2. Section 9.12 CONFESSION OF JUDGMENT IN EJECTMENT is added to the Security
Instrument and reads as follows: BORROWER HEREBY IRREVOCABLY AUTHORIZES
AND EMPOWERS THE PROTHONOTARY, CLERK OR ANY ATTORNEY OF ANY
COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA OR
ELSEWHERE, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST BORROWER, AS WELL AS AGAINST ALL
PERSONS CLAIMING UNDER, BY OR THROUGH BORROWER, AND IN FAVOR OF
LENDER, ITS SUCCESSORS OR ASSIGNS, AS OF ANY TERM, PAST, PRESENT OR
FUTURE, WITH OR WITHOUT DECLARATION, FOR POSSESSION, CONTROL OR
BOTH OF THE PREMISES, IMPROVEMENTS AND BUILDING EQUIPMENT, WITHOUT
THE NECESSITY OF FILING ANY BOND AND WITHOUT ANY STAY OF EXECUTION
OR APPEAL. THIS INSTRUMENT, OR A COPY HEREOF VERIFIED BY AFFIDAVIT,
SHALL BE SUFFICIENT WARRANT THEREFOR; WHEREUPON, APPROPRIATE
PROCESS TO OBTAIN POSSESSION, CONTROL OR BOTH OF THE PREMISES,
IMPROVEMENTS AND BUILDING EQUIPMENT, INCLUDING LEVY AND EXECUTION,
MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING
WHATSOEVER. BORROWER HEREBY RELEASES AND AGREES TO RELEASE
LENDER AND SAID ATTORNEYS FROM ALL PROCEDURAL ERRORS AND DEFECTS
WHATSOEVER IN ENTERING SUCH JUDGMENT OR JUDGMENTS OR IN CAUSING
SUCH WRITS OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON OR
CONCERNING THE SAME, PROVIDED THAT LENDER SHALL HAVE FILED IN SUCH
ACTION OR ACTIONS AN AFFIDAVIT OR AFFIDAVITS MADE BY SOMEONE ON
LENDER'S BEHALF SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE
ENTRY OF SUCH JUDGMENT OR JUDGMENTS ACCORDING TO THE TERMS OF THIS
INSTRUMENT, OF WHICH FACTS SUCH AFFIDAVIT OR AFFIDAVITS SHALL BE
PRIMA FACIE EVIDENCE. IT IS HEREBY EXPRESSLY AGREED THAT IF FOR ANY
REASON AFTER ANY SUCH ACTION OR ACTIONS HAVE BEEN COMMENCED THE
SAME SHALL BE DISCONTINUED, MARKED SATISFIED OF RECORD OR BE
TERMINATED, OR POSSESSION OF THE PREMISES, IMPROVEMENTS OR BUILDING
EQUIPMENT REMAINS IN OR IS RESTORED TO BORROWER OR ANYONE CLAIMING
UNDER, BY OR THROUGH BORROWER, LENDER MAY, WHENEVER AND AS OFTEN
AS LENDER SHALL HAVE THE RIGHT TO AGAIN TAKE POSSESSION OF THE
PREMISES, IMPROVEMENTS AND BUILDING EQUIPMENT, BRING ONE OR MORE
3048817
FURTHER CONFESSIONS IN THE MANNER SET FORTH HEREIN TO RECOVER
POSSESSION OF THE PREMISES, IMPROVEMENTS AND BUILDING EQUIPMENT. THE
AUTHORITY AND POWER ABOVE GIVEN SHALL CONTINUE FROM TIME TO TIME
AND AT ALL TIMES UNTIL FINAL PAYMENT IN FULL OF ALL SECURED
INDEBTEDNESS.
3. Article 19 Special Pennsylvania Provisions is added to the Security instrument and reads as
follows:
FUTURE ADVANCES: The Security Instrument secures such future or additional advances (in
addition to the principal amount of the Note) as may be made by Lender or the holder hereof, at
its exclusive option, to Borrower or its successors or assigns in title, for any purpose, provided
that all such advances are made within 20 years from the date of the Security Instrument or within
such lesser period of time as may be provided by law as a prerequisite for the sufficiency of
actual notice or record notice of such optional future or additional advances as against the rights
of creditors or subsequent purchasers for valuable consideration to the same extent as if such
future or additional advances were made on the date of the execution of the Security Instrument.
The total amount of indebtedness secured by the Security Instrument may be increased or
decreased from time to time, but the total unpaid balance so secured at any one time shall not
exceed a maximum principal amount equal to two times the amount first set forth in the Security
Instrument, plus interest thereon and any disbursements made under the Security Instrument for
the payment of impositions, taxes, assessments, levies, insurance, or otherwise with interest on
such disbursements. It is the intent of the parties that the Security Instrument shall secure the
payment of the Note and any additional advances made from time to time pursuant to any
additional promissory notes or otherwise contemplated under the Loan Documents, all of said
indebtedn.-ss being equally secured hereby and having the same priority as any amounts advanced
as of the date of the Security Instrument. It is agreed that any additional sum or sums advanced by
Lender sl_all be equally secured with, and have the same priority as, the original indebtedness
evidenced by the Note and shall be subject to all of the terms, provisions and conditions of the
Security Instrument, whether or not such additional loans or advances are evidenced by other
promissory notes of Borrower and whether or not identified by a recital that it or they are secured
by the Security Instrument. It is further agreed that any additional promissory note or promissory
notes executed and delivered pursuant to this paragraph shall automatically be deemed to be
included in the term "Note" wherever it appears in the context of the Security Instrument.
2 3048817
BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained
in this Rider to Pennsylvania Mortgage and Security Agreement and agrees that the terms hereof are
hereby incorporated into and with the terms of the Security Instrument as if both the Security
Instrument and this instrument are one and the same document. Nothing contained herein shall
invalidate or change any terms of the Security Instrument except to the extent as maybe explicitly set
forth herein.
Signed, sealed and delivered
in the presence of.
Print Name: s ,:-
Borrower:
c?'
0?" 6L--
Samuel D Chandler
Print Name:
This Instrument prepared by: Antonio Chimienti, Esq.
Upon recording return to: Bayview Lending Group, LLC
Attn: Title Processing Department
4425 Ponce de Leon Blvd., 4th Floor
Coral Gables, FL 33146
CERTIFICATE OF RESIDENCE
I hereby certify that the precise residence of the Mortgagee
is 895 SW 30 Ave, Suite 103, Pompano Beach, Florida 33069.
Witness the due execution hereof.
By/For Mortgagee
3048817
ACKNOWLEDGMENT
COMMONWEALTH OF
PENNSYLVANIA
COUNTY OF
StAA,%?
ss.:
The foregoing instrument was acknowledged befor me on June 12, 2008 by Samuel D Chandler.
He/she is personally known to me or produced ,? n ?r cov?vc as
identification, and did/did not take an oath.
[Official Notary Seal]
COMMONWEALTH of PENNSYLVANIA
Notarial Seal
Lisa A- Seay, (. otg y FhA sic.
Lily of Fenisbury, DauQhin county
pty Gomm Lsskn E Orm ,;uty 74.'2011
Member, Pennsyhvarda Assn?iation or Notaries
Notary Publ',!Corn iinwealth.-of Pennsylvania
Print oqy e Name: La: `
My Co sio n Expires: ?-
4 3048817
Exhibit "C"
EXHIBIT "A"
LEGAL DESCRIPTION
LAND SITUATED IN THE BOROUGH OF LEMOYNE IN THE COUNTY OF CUMBERLAND IN
THE STATE OF PA
ALL THAT CERTAIN LOT OF LAND SITUATE IN THE BOROUGH OF LEMOYNE, CUMBERLAND
COUNTY, PENNSYLVANIA, MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS
TO WIT:
BOUNDED ON THE SOUTH BY A 15 FEET WIDE ALLEY, SAID ALLEY BEING ADJACENT TO
AND PARALLEL WITH THE NORTHERN LINE OF LAND OF THE PHILADELPHIA, BARRISBURG
AND PITTSBURGH RAILROAD COMPANY, NOW THE PHILADELPHIA AND READING RAILWAY
COMPANY; ON THE EAST SIDE BY BLACKBERRY ALLEY AND ON THE NORTH BY PEACH
ALLEY, AND EXTENDS ALONG SAID 15 FEET WIDE ALLEY 375 FEET, MORE OR LESS,
ALONG BLACKBERRY ALLEY, 112 1/2 FEET, MORE OR LESS, AND ALONG PEACH ALLEY,
350 FEET, MORE OR LESS, AS MORE FULLY SET FORTH AND DESIGNATED IN THE PLOT
OF THE BOROUGH OF LEMOYNE (MACDONALD AND ROBERTS, ENGINEERS) RECORDED
IN PLAN BCOK I, PAGE 59.
Exhibit "D"
NOTICE REQUIRED BY THE FAIR DEBT COLLECTION PRACTICES ACT,
- - -_ -•-- t • (the Act) 15 U.S.C. SECTION 1692 AS AMENDED
1. The law firm maybe deemed a `debt collector' under the Fair Debt Collection Practices Act_
Any and all information obtained during the prosecution of this lawsuit may be used for the
purpose of collecting a debt.
2 The amount of the debt is stated in the attached letter, or Complaint-
3_ The Plaintiff named in the attached letter or complaint is the creditor to whom the debt is
owed, or is the servicing agent for thecreditor to whom the debt is owed- The undersigned
atiomey represents the interests of the Plaintiff.
4_ The debt described in the letter or complaint will be assumed to be valid by the creditor's
law firm unless the debtor, within thirty (30) days after the receipt of this notice, disputes in
writing the validity of the debt or some portion thereof-
If the debtor notifies the creditor's law firm in writing within thirty (30) days of the receipt of
this notice that the debt or any portion thereof is disputed, the creditor's law firm will obtain
a verification of the debt and a copy of the verification will be mailed to the debtor by the
creditor's law firm-
6. If the creditor named as Plaintiff in the attached letter or complaint is not the original
creditor, and if the debtor makes a written request to the creditors law firm within the thirty
(30) days from the receipt of this notice, the name and address of the original creditor will
be mailed to the debtor by the creditor's law firm.
7_ FEDERAL LAW GIVES YOU THIRTY (30) DAYS AFTER YOU RECEIVE THIS NOTICE
TO DISPUTE THE VALIDITY OF THE DEBT OR. ANY PART OF IT- THE LAW DOES
NOT REQUIRE THAT WE WAIT UNTIL THE END OF THE THIRTY-DAY PERIOD TO
CONTINUE WITH THE SUBJECT LEGAL ACTION- IF, HOWEVER, YOU REQUEST
PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR
WITHIN THE THIRTY-DAY PERIOD THAT BEGINS WITH YOUR RECEIPT OF THIS
LETTER, THE LAW REQUIRES THAT WE SUSPEND OUR EFFORTS (THROUGH
LITIGATION OR OTHERWISE) TO COLLECT THE MORTGAGE QUID NOTE,
INCLUDING SEEKING A DEFAULT IN THE FORECLOSURE SUIT FORYOUR FAILURE
TO RESPOND TO THE ATTACHED COMPLAINT WITHIN THE TIME REQUIRED UNDER
THE SUMMONS, UNTIL WE MAIL THE REQUESTED- INFORMATION TO YOU. IF YOU
REQUEST VALIDATION OF THE DEBT, AS STATED HEREIN, YOU ARE UNDER NO
OBLIGATION TO RESPOND TO THE SUMMONS AND COMPLAINT UNTIL WE
RESPOND WITH THE REQUESTED INFORMATION
8_ Written requests should addressed to Law Offices of Mattleman, Weinroth & Miller, 401
Route 70 East, Suite 100, Cherry Hill, NJ 08034, Attn: Foreclosure Department
9- This is attempt to collect a debt, and any information obtained will be used for that purpose-
However, if you have previously received a discharge in Bankruptcy, this correspondence
is not and should not be construed as an attempt to collect a debt, but only enforcement
of a fien against your property.
G)
OF Tic
? - .U
tCV?? -11 .:..'; c.?c ! : ?;
*1S.50 Po ATT Y
av-'*` ?Sa9UP
ero U,7 009
Sheriffs Office of Cumberland County
R Thomas Kline
Sheriff ?t °t c u'nbr,Edward L Schorpp
Solicitor
Ronny R Anderson
Chief Deputy
;wERiFr Jody S Smith
Civil Process Sergeant
IB Property Holdings LLC
-------------
vs.
Samuel D. Chandler Case Number
2009-42Q1
SHERIFF'S RETURN OF SERVICE`
06/26/2009 06:00 PM - Michael Barrick, Deputy Sheriff, who being & Jj?
duly sworn according to law, statest it ???_
26, 2009 at 1800 hours, he served a true copy of the within Complaint in Mortgage Forecl e?upon?the_j.',
ir ;
within named defendant, to wit: Samuel D. Chandler, by making known unto Susan Chandler-wife -
defendant at 231 South 8th Street Lemoyne, Cumberland County, Pennsylvania 17048 itsro._'tentsd ak?s
the same time handing to her personally the said true and correct copy of the same. r'
06/30/2009 09:51 AM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that oh JurW,30,
2009 at 0951 hours, he served a true copy of the within Complaint in Mortgage Foreclosure, upon the
within named defendant, to wit: Samuel D. Chandler, by making known unto himself personally,
at 231 South 8th Street Lemoyne, Cumberland County, Pennsylvania 1704 defendant
3 its contents and at the same
time handing to him personally the said true and correct copy of the same.
SHERIFF COST: $71.90
SO ANSWERS,
.?+:%W
July 01, 2009-_t
R THOMAS KLINE, SHERIFF
Deputy She i f
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
ATTORNEY I.D. NO. 51520
401 ROUTE 70 EAST, SUITE 100
CHERRY HILL, NJ 08034
(856) 429-5507
ATTORNEY FOR PLAINTIFF
Our File No.: 902.75298
IB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 094201 Civil Term
COMPLAINT - CIVIL ACTION
AMENDED COMPLAINT IN MORTGAGE FORECLOSURE
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following pages,
you must take action within twenty (20) days after this compliant and notice are served, by entering a
written appearance personally or by attorney and filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the court without further notice for
any money claimed in the compliant or for any other claim or relief requested by the Plaintiff. You my
lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN
PROVIDE YOU WITH. THE INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT
AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
PERSONS AT A REDUCE FEE OR NO FEE.
LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVE
CARLISLE, PA 17013
717-249-3166
AVISO
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las
paginas siguientes, usted tiene veinte (20) dias de plazo a partir de la fecha de la demanda y la
notiticacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la
corte en forma escrita sus defensas o sus objeciones a las demadadas en contra de su persona. Sea
avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya
sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandato y requiere que
usted crumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades o
otros dereches importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE AHOGADO O SI
NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O
LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO
PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIAL LEGAL.
LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVE
CARLISLE, PA 17013
717-249-3166
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
ATTORNEY I.D. NO. 51520
401 ROUTE 70 EAST, SUITE 100
CHERRY HILL, NJ 08034
(856) 429-5507
ATTORNEY FOR PLAINTIFF
Our File No.: 902.75298
113 PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 09-4201 Civil Term
AMENDED COMPLAINT IN MORTGAGE FORECLOSURE
1. Plaintiff is IB Property Holdings LLC, a Delaware LLC authorized to do business in the
Commonwealth of Pennsylvania with its principal place of business located at 4425 Ponce de
Leon Blvd, Coral Gables, FL 33146.
2. The name and last known address of the Defendant(s) is: Samuel D. Chandler, 231 South 8th
Street, Lemoyne, PA 17043.
3. The interest of each individual Defendant(s) is as mortgagor, and/or real owner of the real
property subject to the mortgage described below, or both.
4. On or about June 12, 2008, in consideration of their indebtedness to Silver Hill Financial LLC,
Samuel D. Chandler made, executed and delivered to Silver Hill Financial LLC, a Promissory
Note in the original principal amount of $189,000.00. A true and correct copy of said Note is
attached hereto as Exhibit "A" and incorporated herein by reference.
On or about June 12, 2008 Mortgagor(s) made, executed and delivered a Mortgage upon the
premises hereinafter described to Silver Hill Financial LLC subject Mortgage is recorded as
follows:
Office of the Recorder of Deeds in and for Cumberland County
DATE OF MORTGAGE: June 12, 2008
DATE RECORDED: June 19, 2008
INSTRUMENT NO: 200820610
The Mortgage is a matter of public record and is incorporated herein as provided by Pa. R.C.P.
1019(g). A true and correct copy of said Mortgage is attached hereto as Exhibit "B" and
incorporated herein by reference.
6. Plaintiff is the legal holder of the Mortgage by virtue of being either the original Mortgagee, the
legal successor in interest to the original Mortgagee, or the present holder of the Mortgage by
virtue of the following assignments:
ASSIGNOR: Silver Hill Financial LLC
ASSIGNEE: 113 Property Holdings LLC, a Delaware LLC
DATE OF ASSIGNMENT: July 15, 2009
RECORDING DATE: Being recorded in the Office of Recorder of
Deeds in and for Cumberland County
The Mortgage is secured by property located at 231 South 8th Street, Lemoyne, PA 17043
which is more particularly described in the legal description attached hereto as Exhibit "C" and
incorporated herein by reference.
8. To further induce Silver Hill Financial, LLC to make the Loan, Samuel D. Chandler executed and
delivered to Silver Hill Financial, LLC a certain Assignment of Leases and rents dated June 12,
2008, which is recorded in the Office of Recorder of Deeds in and for Cumberland County on
June 19, 2008 as Instrument No., 200820611. The Assignment of Leases and Rents was further
assigned to IB Property Holdings LLC, a Delaware LLC on July 15, 2009, same is being
recorded in the Office of Recorder of Deeds in and for Cumberland County.
9:
10.
The Mortgage is in default because the monthly installments of principal and interest and other -
charges stated below, all as authorized by the Mortgage, due April 1, 2009 and monthly thereafter
have not been paid, whereby the whole balance of principal and all interest due thereon have
become immediately due and payable forthwith together with late charges, escrow deficit (if any),
and costs of collection including title search fees and reasonable attorney's fees.
The following amounts are due on the Mortgage:
Principal Balance: $187,507.70
8.50 % interest from March 1, 2009 $4,471.54
through June 9, 2009 at $44.27 per day
10.00 % interest from April 6, 2009 $3,385.56
through June 9, 2009 at $52.09 per day
Prepayment Consideration $9,375.39
at 5.00% of Unpaid Principal Balance
Lockout from June 10, 2009 through $64,815.16
June 12, 2013 at $44.27 per day
Late Charges from April 1, 2009 $538.23
through June 9, 2009 at $179.41 per month
Escrow Balance $0.00
Attorney's Fees and Costs $11,557.89
TOTAL AMOUNT DUE $281,651.47
11
12
Interest continues to accrue at the per diem rate of $96.36 for every day after June 15, 2009 that
the debt remains unpaid.
During the course of this litigation costs may continue to accrue, including but not limited to
escrow advances, late charges, attorney's fees, and any other lawful foreclosure cost and fees
expended by the plaintiff.
The attorney's fees set forth above are in conformity with the Mortgage documents and
Pennsylvania Law, and will be collected in the event of a third party purchaser at Sheriff s Sale.
If the Mortgage is reinstated prior to the sheriff sale, reasonable attorney's fees will be charged.
13. . The original principal balance of the Mortgage is in excess of $50;000:00 and therefore, Notice of
Intention to Foreclose Mortgage, Pursuant Act 6, 41 P.S. 403, is not applicable.
14. Pursuant to the notice provisions of Act 91, 35 P.S.1680.403 (c) and the notice provisions of Act
6, 41 P.S. 403, as governed by 12 Pa code Section 31.201 et seq. as amended by Act 160 of 1998
effective February 19, 1999, neither Notice of Intention to Foreclose Mortgage nor Act 91 notice
were sent to Defendant(s), Samuel D. Chandler, because the subject property is not residential
property and therefore such notices were not necessary.
15. Defendant(s) has failed to cure the default and Defendant(s) has failed to meet with the plaintiff
or any of the consumer credit counseling agencies listed in the notice and/or have further failed to
meet the time limitations specified in the notice and/or have been denied assistance from the
Pennsylvania Housing Finance Agency.
16. Notice pursuant to the Fair Debt Collection Practices Act is attached as Exhibit "D".
WHEREFORE, Plaintiff respectfully requests this court to enter judgment IN REM in favor of
Plaintiff and against the within named property of the Defendants in the amount set forth in paragraph ten
(10) of this complaint $281,651.47, plus additional fees and costs expended by the Plaintiff in payment
of taxes, sewer and water rents, claims or charges for insurance costs or repairs and any and all other
advances hereafter made by the Plaintiff, pursuant to the rights and privileges granted under the terms of
the subject mortgage, and for foreclosure and sale of the Mortgaged property, plus 6% legal rate of
interest, from the date of Judgment to the time of sale.
VERIFICATION
The undersigned hereby states that he/she is an authorized officer,
representative or agent for Plaintiff in this action and that he/she is authorized to make
this Verification on behalf of Plaintiff and that the facts set forth in the foregoing
Complaint are taken from records maintained by persons supervised by the
undersigned who maintain the business records of the Mortgage held by Plaintiff, in the
ordinary course of business and that those facts are true and correct to the best of
his/her knowledge, information and belief.
THE UNDERSIGNED UNDERSTANDS THAT FALSE STATEMENTS HEREIN
ARE MADE SUBJECT TO THE PENALTIES OF 18 PA.C.S. '4904 RELATING TO
UNSWORN FALSIFICATION TO AUTHORITIES.
Date:
Name: Karen br' h
Company: Bayvie Lo Servicing
Title: Assistant Vice President
Exhibit "A "
J
PROMISSORY NOTE
( PENNSYLVANIA )
$189,000.00 DATE: June 12, 2008
MATURES: July 1, 2033
FOR VALUE RECEIVED, Samuel D Chandler, a married man, whose address is 31 Victoria Way,
Camp Hill, PA 17011 17011, as maker (the "Borrower"), hereby unconditionally, jointly and
severalty (if more than one), promises to pay to the order of Silver Hill Financial, LLC, a Delaware
Limited Liability Company, as payee, having an address at 895 SW 30 Ave, Suite 103, Pompano
Beach, Florida 33069, (the "Lender"), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of One Hundred Eighty-Nine Thousand and No/100
Dollars ($189,000.00), in lawful money of the United States of America with interest thereon to be
computed from the date of this Promissory Note ("Note") at the Applicable Interest Rate (defined
below) in accordance with the terms of this Note.
1. PAYMENT TERMS.Borrower agrees to pay sums under this Note in equal payments of principal
and interest, each in the amount of One Thousand Five Hundred Thirty-Seven Dollars And
Eighty-One Cents ($1,537.81) commencing August 1, 2008, and on the Ist day of each calendar
month thereafter (each, a "Payment Date"). The entire principal balance and all accrued and
unpaid interest thereon shall be due and payable on July 1, 2033 (the "Maturity Date"). Each
installment payment shall be applied as follows: (i) first, to the payment of late charges and
interest computed at the Default Rate (defined below), if applicable; (ii) second, to the payment of
interest at the Applicable Interest Rate; and (iii) third, the balance toward the reduction of the
principal balance.
2. INTERE T . Interest on the unpaid principal balance due hereunder shall accrue at a rate of Eight
And One Half Percent (8.500) per annum (the "Applicable Interest Rate"). Interest shall be
computed on the actual number of days elapsed and an assumed year of 360 days.
SECURITY. This Note is secured by that certain Mortgage and Security Agreement, Deed of
Trust and Security Agreement, or Deed to Secure Debt and Security Agreement; and Assignment
of Leases and Rents and Security Agreement and Fixture Filing (the "Security Instrument") of
even date herewith given by Borrower to Lender encumbering certain premises located in
CUMBERLAND County, Parish or Judicial District of the Commonwealth or State of PA, (the
"Real Property") and the Other Security Documents (as defined in the Security Instrument)
encumbering other property ("Other Property"), as more particularly described therein (the Real
Property and the Other Property are hereinafter collectively referred to as the "Property").
4. DEFAULT AND ACCELERATION. If any payment required in this Note is not paid (a) prior to
the fifth (5`h) day after a Payment Date, (b) on the Maturity Date or (c) on the happening of any
other default, after the expiration of any applicable notice and grace periods, herein or under the
terms of the Security Instrument or any of the Other Security Documents (collectively, an "Event
of Default"), and the Lender declares an Event of Default, then, at the option of Lender (i) the
whole of the principal sum of this Note, (ii) interest, default interest, late charges and other sums,
as provided in this Note, the Security Instrument or the Other Security Documents, (iii) all other
monies agreed or provided to be paid by Borrower in this Note, the Security Instrument or the
Other Security Documents, (iv) all sums advanced pursuant to the Security Instrument to protect
3048817
and preserve the Property and any lien and security interest created thereby; (v) all sums advanced
and costs and expenses incurred by Lender in connection with the Debt (defined below) or any
part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof,
or the acquisition or perfection of the security therefor, whether made or incurred at the request of
Borrower or Lender ; (vi) the Prepayment Consideration, if any; and (vii) any and all additional
advances made by Lender to complete Improvements or to preserve or protect the Property, or for
taxes, assessments or insurance premiums, or for the performance of any of Borrower's
obligations hereunder or under the Other Security Documents (all the sums referred to
in (i) through (vii) above shall collectively be referred to as the "Debt") shall without notice
become immediately due and payable.
5. DEFAULT INTEREST. Borrower agrees that upon the occurrence (and Lender's declaration) of
an Event of Default, Lender shall be entitled to receive and Borrower shall pay interest on the
entire unpaid principal sum at a per annum rate equal to the lesser of (i) ten percent (10%) plus
the Applicable Interest Rate, or (ii) the maximum interest rate which Borrower may by law pay
(the "Default Rate"), and shall be due and payable ON DEMAND. The Default Rate shall be
computed from the occurrence of the Event of Default. Interest calculated at the Default Rate
shall be deemed secured by the Security Instrument and the Other Security Documents. This
clause, however, shall not be construed as an agreement or privilege to extend the date of the
payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason
of the occurrence of any Event of Default.
6. LATE CHARGE. If any monthly installment payable under this Note is not paid prior to the fifth
(5th) day after the applicable Payment Date, Borrower shall pay to Lender upon demand an
amount equal to the lesser of (a) five percent (5%) of such unpaid sum or (b) the maximum
amount permitted by applicable law to defray the expenses incurred by Lender in handling and
processing the delinquent payment and to compensate Lender for the loss of the use of the
delinquent payment; and this amount shall be secured by the Security Instrument and the Other
Security Documents. This clause, however, shall not be construed as an agreement or privilege to
extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing
to Lender by reason of the occurrence of any Event of Default.
7. PREPAYMENT.
a. Lockout Period : Borrower shall not be permitted to make any full or partial
prepayment of the principal balance of this Note (a "Prepayment") prior to that date
that is sixty (60) months after the date of this Note (the "Lockout Period"). If, for any
reason, a Prepayment is made during the Lockout Period (a "Lockout Prepayment"),
Borrower shall, simultaneously therewith, be obligated to pay: (i) the aggregate
amount of interest which would have accrued on the unpaid principal balance of this
Note from the date of such Lockout Prepayment through the expiration date of the
Lockout Period (the "Lockout Fee"), plus (ii) all amounts specified in Section 7(b)
below).
b. Prcpayment Period: At any time during the Prepayment Period (as defined below),
the principal balance of this Note may be prepaid in whole, but not in part, pursuant
to the terms contained in this Section 7. If Borrower makes any Prepayment within
3048817
the first Five years after the date of this Note (the "Prepayment Period"), the Borrower
shall be obligated to pay to Lender the following amounts:
(i) an amount equal to Five percent (5.000%) of the then outstanding
unpaid principal balance of this Note (the "Prepayment
Consideration"); and
(ii) all accrued interest on the outstanding principal balance to and
including date on which the Prepayment is made; and
(iii) all other'sums due under this Note, the Security Instrument and all
Other Security Documents.
c. Prepayments Without Consideration: No Prepayment Consideration or Lockout Fee (if
any) shall be due or payable with respect to any full or partial Prepayment made by
Borrower after the expiration of the Prepayment Period.
d. Notice of Prepayment: Prior to making any Prepayment, Borrower must provide Lender
with not less than sixty (60) days advance written notice of Borrower's intent to make such
Prepayment. Such notice must specify: (i) the date on which Prepayment is to be made,
and (ii) the principal amount of such Prepayment. Lender shall not be obligated to accept
any Prepayment unless it is accompanied by all other amounts due in connection therewith.
e. Permitted Prepayment Date : Borrower may only make a Prepayment on a regularly
scheduled Payment Date (as defined in Section I of this Note). Lender shall not be
required to accept any Prepayment made on a date other than a regularly scheduled
Payment Date. If Borrower submits a Prepayment on any date other than a regularly
scheduled Payment Date, then Borrower shall be required to pay all interest that would
have accrued through the next scheduled Payment Date.
f. Insurance/Condemnation Prepayments: Notwithstanding anything to the contrary
contained herein, and provided no Event of Default exists, no Prepayment Consideration
shall be due in connection with any Prepayment resulting from the application of insurance
proceeds or condemnation awards pursuant to the terms of the Security Instrument or
changes in tax and debt credit pursuant to the terms of the Security Instrument.
For purposes of this Section 7, the terms "Lockout Prepayment" and "Prepayment" shall
include, without limitation, any prepayment of principal that occurs as a result of any Event
of Default in any of the Loan Documents or an acceleration of the Maturity Date under any
circumstances, any prepayment of principal occurring in connection with foreclosure
proceedings or exercise of any applicable power of sale, any statutory right of redemption
exercised by Borrower or any other party having a statutory right to redeem or prevent
foreclosure, any sale in foreclosure or under exercise of any applicable power of sale, deed
in lieu of foreclosure or otherwise, and any other voluntary or involuntary prepayment of
principal made by Borrower.
8. LOAN CHARGES. Borrower agrees to an effective rate of interest that is the rate stated in this
Note, plus any additional rate of interest resulting from any other sums, amounts, and charges in
the nature of interest paid or to be paid by or on behalf of Borrower, or any benefit or value
3048817
received or to be received by the holder of this Note, in connection with this Note. Without limiting
the foregoing, this Note, the Security Instrument and the Other Security Documents are subject to
the express condition that at no time shall Borrower be obligated or required to pay interest on the
principal balance due hereunder at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum interest rate which Borrower is permitted
by applicable law to contract or agree to pay. If by the terms of this Note, the Security Instrument
and the Other Security Documents, Borrower is at any time required or obligated to pay interest
on the principal balance due hereunder at a rate in excess of such maximum rate, the Applicable
Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced
to such maximum rate and all previous payments in excess of the maximum rate shall be deemed
to have been payments in reduction of principal and not on account of the interest due hereunder,
and any excess remaining shall be refunded to Borrower. All sums paid or agreed to be paid to
Lender fo- the use, forbearance, or detention of the Debt, shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the
Note until payment in full so that the rate or amount of interest on account of the Debt does not
exceed the maximum lawful rate of interest from time to time in effect and applicable to the Debt
for so long as the Debt is outstanding. In determining whether or not the interest paid or payable
hereunder exceeds the maximum lawful rate, the Lender may utilize any law, rule or regulation in
effect from time to time and available to the Lender.
9. WAIVERS. Borrower and all others who may become liable for the payment of all or any part of
the Debt do hereby severally waive (a) presentment and demand for payment, notice of dishonor,
protest and notice of protest and non-payment and all other notices of any kind, except for notices
expressly provided for in this Note, the Security Instrument or the Other Security Documents and
(b) any defense of the statute of limitations in any action hereunder or for the collection of the
Debt. No release of any security for the Debt or extension of time for payment of this Note or any
installment hereof, and no alteration, amendment or waiver of any provision of this Note, the
Security Instrument or the Other Security Documents made by agreement between Lender or any
other person or party shall release, modify, amend, waive, extend, change, discharge, terminate or
affect the liability of Borrower, and any other person or entity who may become liable for the
payment of all or any part of the Debt, under this Note, the Security Instrument or the Other
Security Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the
obligation of Borrower or of the right of Lender to take further action without further notice or
demand as provided for in this Note, the Security Instrument or the Other Security Documents. If
Borrower is a partnership, corporation or limited liability company, the agreements contained
herein shall remain in full force and effect, notwithstanding any changes in the individuals or
entities comprising the Borrower, and the term Borrower, as used herein, shall include any
alternate or successor entity, but any predecessor entity, and its partners or members, as the case
may be, shall not thereby be released from any liability. (Nothing in the foregoing sentence shall
be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests
in Borrower which may be set forth in the Security Instrument or any Other Security Document).
10. AUTHORITY. Borrower (and the undersigned representative of Borrower, if any) represents that
Borrower has full power, authority and legal right to execute and deliver this Note, the Security
Instrument and the Other Security Documents and that this Note, the Security Instrument and the
Other Security Documents constitute legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms.
3048817
11. GOVERNING LAW. This Note shall be governed, construed, applied and enforced in
accordance with the laws of the State in which the Real Property is located, without regard to
principles of conflicts of law.
12. NOTI ES. All notices required or permitted hereunder shall be given as provided in the Security
Instrument.
13. INCORPORATION BY REFERENCE. All of the terms, covenants and conditions contained in
the Security Instrument and the Other Security Documents are hereby made part of this Note to
the same extent and with the same force as if they were fully set forth herein. In the event of any
conflict in terms, the terms of the Note, Security Instrument and Other Security Documents (in
that order) shall control.
14. MISCELLANEOUS.
a. To the extent permitted by applicable law, wherever pursuant to this Note it is provided that
Borrower pay any costs and expenses, such costs and expenses shall include, but not be
limited to, reasonable legal fees and disbursements of Lender, whether with respect to
retained firms, the reimbursement for the expenses of in-house staff, or otherwise. To the
extent permitted by applicable law, Borrower shall pay to Lender on demand any and all
expenses, including legal expenses and reasonable attorneys fees (at all levels including
appeals), incurred or paid by Lender in enforcing this Note, whether or not any legal
proceeding is commenced hereunder, together with interest thereon at the Default Rate from
the date paid or incurred by Lender until such expenses are paid by Borrower.
b. This Note may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by
an agr.-ement in writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
c. If Borrower consists of more than one person or party, the obligations and liabilities of each
person or party shall be joint and several.
d. Whenever used, the singular number shall include the plural, the plural number shall include
the singular, and the words "Lender" and "Borrower" shall include their respective successors,
assigns, heirs, executors and administrators.
e. The headings of this Note are for convenience only and are not to affect the construction of or
to be taken into account in interpreting the substance of this Note.
f. Time is of the essence hereunder.
g. A determination that any provision of this Note is unenforceable or invalid shall not affect
the enforceability or validity of any other provision and a determination that the application of
any provision of this Note to any person or circumstance is illegal or unenforceable shall not
affect the enforceability or validity of such provision as it may apply to other persons or
circumstances. The remaining provisions of this Note shall remain operative and in full force
and effect and shall in no way be affected, prejudiced or disturbed thereby.
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15. DOCUMENTARY STAMPS. Any and/or all documentary stamps or taxes required to be paid in
connection with this Note has been paid at the time of recordation of the Security Instrument.
16. FINAL AGREEMENT. This Note, the Security Instrument and the other Security Documents,
represent the final agreement between the parties and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements. There are no unwritten oral agreements
between the parties. All prior or contemporaneous agreements, understandings, representations
and statements, oral or written, are merged into the Guaranty and the other Security Documents.
17. POWER OF ATTORNEY. To the extent permitted by applicable law, borrower hereby
irrevocably authorizes any attorney at law elected by Lender to appear for it in any action on this
Note in any court of record in the State ofPA or any other state or territory of the United States, or
at any time after the indebtedness evidenced by this Note, or any part thereof becomes due (by
acceleration or otherwise), to waive the issuance and service of process, and confess a judgment
in favor of Lender or any subsequent holder of this Note against Borrower, for the amount that
may then be due, together with the costs of suit and interest, and to waive and release all errors
and all rights to second trial, appeal, and stay of execution. The foregoing warrant of attorney
shall survive any judgment, and if any judgment be vacated for any reason, the holder hereof
nevertheless may thereafter use the foregoing warrant of attorney to obtain an additional
judgment or judgments against Borrower.
18. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER, BY ITS ACCEPTANCE
HEREOF, EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THIS NOTE, THE APPLICATION FOR
THE LOAN EVIDENCED BY THIS NOTE, THIS NOTE, THE SECURITY INSTRUMENT
OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF ANY
PARTY OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, DIRECTORS OR
AGENTS IN CONNECTION THEREWITH. THIS WAIVER OF THE RIGHT TO TRIAL BY
JURY IS A MATERIAL INDUCEMENT TO THE LENDER FOR THE LENDER TO MAKE
THE LOAN.
READ ALL CREDIT AGREEMENTS BEFORE SIGNING. THE TERMS OF ALL CREDIT
AGREEMENTS SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN
WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED OR SPECIFICALLY INCORPORATED BY WRITING IN THIS WRITTEN
CREDIT AGREEMENT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE
TERMS OF THIS CREDIT AGREEMENT ONLY BY OTHER WRITTEN CREDIT
AGREEMENTS.
[NO FURTHER TEXT - SIGNATURES APPEAR ON NEXT PAGE]
6 3048817
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and date first
above written.
Signed, sealed and delivered
in the presence of:
Print Name: L u?5 ?} t'c =/ T7F
Print Name:
Borrower:
Samuel D Chandler
7
3048817
ALLONGE TO NOTE
FOR PURPOSES OF FURTHER ENDORSEMENT OF THE NOTE
REFERRED TO BELOW:
BORROWER:
LENDER:
DATED:
Samuel D Chandler
Silver Hill Financial, LLC, a Delaware Limited
Liability Company
June 12, 2008
ORIGINAL PRINCIPAL BALANCE: $189,000.00
PAY TO THE ORDER OF:
WITHOUT RECOURSE:
Silver Hill Financial, LLC, a Delaware Limited Liability Company
By.
Ti
Print Name: ffictow
Title:
3048817
Exhibit "B "
GD?(
pt 5;
UPON RECORDING RETURN TO:
1W
Bayview Lending Group, LLC
Attn: Title Processing Department
4425 Ponce de Leon Blvd., 4(h Floor
Coral Gables, FL 33146
OPEN-END MORTGAGE & SECURITY AGREEMENT
[ PENNSYLVANIA)
[This Mortgage Secures Future Advances]
Samuel D Chandler, a married man,
as mortgagor
(Borrower)
To
Silver Hill Financial, LLC, a Delaware
Limited Liability Company
as mortgagee
(Lender)
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THIS MORTGAGE AND SECURITY AGREEMENT (the "Security Instrument") is made as of June 12,
2008, by Samuel D Chandler, a married man, whose address is 31 Victoria Way, Camp Bill, PA 17011 17011, as
mortgagor ("Borrower") to Silver Hill Financial, LLC, a Delaware Limited Liability Company, whose address is 895 SW
30 Ave, Suite 103, Pompano Beach, Florida 33069, as mortgagee ("Lender").
RECITALS:
Borrower by its Promissory Note of even date herewith given to Lender is indebted to Lender in the principal sum of One
Hundred Eighty-Nine Thousand and No/100 Dollars ($189,000.00) in lawful money of the United States of America (the
Note together with all extensions, renewals, modifications, substitutions and amendments thereof shall collectively be
referred to as the "Note"), with interest from the date thereof at the rates set forth in the Note, principal and interest to be
payable in accordance with the terms and conditions provided in the Note and with a maturity date of July 1, 2033.
By its execution sereof, Borrower desires to secure the payment of the Debt (hereinafter defined) and the performance of
all of its obligations under the Note and the Other Obligations (hereinafter defined) and any and all other indebtedness
now or hereafter owing by Borrower to Lender.
ARTICLE 1. - GRANTS OF SECURITY
Section LL PROPERTY MORTGAGED. Borrower does hereby irrevocably mortgage, grant, bargain, sell,
pledge, assign, warrant, transfer and convey to Lender with mortgage covenants upon the Statutory Condition and, as
provided and/or authorized by applicable law, with the STATUTORY POWER OF SALE, and grant a security interest to
Lender in, the following property, rights, interests and estates now owned, or hereafter acquired by Borrower to the fullest
extent permitted by applicable law (collectively, the "Property"):
(a) Land. The real property described in Exhibit "A" attached hereto and made a part hereof (the
"Land");
(b) Additional Land. All additional lands, estates and development rights hereafter acquired by
Borrower for use in connection with the Land and the development of the Land and all additional lands and estates therein
which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this
Security Instrument;
(c) Improvements. The buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (the
"Improvements");
(d) Easements. All easements, servitudes rights-of-way or use, rights, strips and gores of land, streets,
ways, alleys, passages, sewer-rights, water, water courses, water rights and powers, air rights and development rights, and
all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any
nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements and
the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower
and rights of dower, courtesy and rights of courtesy, property, possession, claim and demand whatsoever, both at law and
in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel thereof, with the
appurtenances thereto;
(e) Fixtures and Personal Property. All machinery, equipment, fixtures (including, but not limited to,
all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) trade fixtures and other property
of every kind and nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, including
without limitation, letter of credit rights, deposit accounts, payment intangibles, investment property, electronic chattel
paper, timber to be cut and farm animals and, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or future operation and occupancy of the Land and the
Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in
which Borrower has or shall have an interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the
Improvements (collectively, the "Personal Property"), and the right, title and interest of Borrower in and to any of the
Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopt
1 3048817
and enacted by the state or states where any of the Property is located (the "Uniform Commercial Code"),
superior in lien to the lien of this Security Instrument, and all proceeds and products of all of the above;
(f) Leases and Rents. All leases, subleases and other agreements affecting the use, enjoyment or
occupancy of the Land and/or the Improvements heretofore or hereafter entered into and all extensions, amendments and
modifications thereto, whether before or after the filing by or against Borrower of any petition for relief under Creditors
Rights Laws (hereinafter defined) (the "Leases") and all right, title and interest of Borrower, its successors and assigns
therein and thereunder, including, without limitation, any guaranties of the lessees' obligations thereunder, cash or
securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents,
additional rents, revenues, room revenues, accounts, accounts receivable, issues and profits (including all oil and gas or
other mineral royalties and bonuses) from the Land and the Improvements whether paid or accruing before or after the
filing by or against Borrower of any petition for relief under the Creditors Rights Laws (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt;
(g) Insurance Proceeds. All proceeds of and any unearned premiums on any insurance policies
covering the Property, including, without limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Property;
(h) Condemnation Awards. All awards or payments, including interest thereon, which may heretofore
and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including,
but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or
for any other injury to or decrease in the value of the Property;
(i) Tax Certiorari. All refunds, rebates or credits in connection with a reduction in real estate taxes and
assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction;
0) Conversion. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing
including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims;
(k) Ri t . The right, in the name and on behalf of Borrower, to appear in and defend any action or
proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of
Lender in the Property;
(1) Agreements. All agreements, contracts, certificates, instruments, franchises, permits, licenses,
plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any
Improvements or respecting any business or activity conducted on the Land and any part thereof and all right, title and
interest of Borrower therein and thereunder, including, without limitation, the right, upon the occurrence and during the
continuance of an Event of Default (hereinafter defined), to receive and collect any sums payable to Borrower thereunder,
(m) lntan ig tiles. All trade names, trademarks, servicemarks, logos, copyrights, goodwill, books and
records and all other intellectual property rights and general intangibles relating to or used in connection with the
operation of the Property;
(n) Cash and Accounts. Cash and Accounts. All cash funds, deposit accounts and other rights and
evidence of rights to cash, all present and future funds, accounts, instruments, accounts receivable, documents, causes of
action, or claims now or hereafter held, created or otherwise capable of credit to the Debtor/Borrower; and
(o) Other Rights. Any and all other rights of Borrower in and to the items set forth in Subsections (a)
through (n) above.
Section 1.2. ASSIGNMENT OF LEASES AND RENTS. Borrower hereby absolutely and unconditionally assigns
to Lender Borrower's right, title and interest in and to all current and future Leases and Rents; it being intended by
Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security
only. Notwithstanding the foregoing, Lender grants to Borrower a revocable license to collect and receive the Rents.
Borrower shall hold a portion of the Rents sufficient to discharge all current sums due on the Debt, for use in the payment
of such sums.
Section 1.3. SECURITY AGREEMENT. This Security Instrument is both a real property mortgage and a "securit
2 3048817
agreement" within the meaning of the Uniform Corr nercial Code. The Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of Borrower in the Property. By executing and
delivering this Security Instrument, Borrower her by grants to Lender, as security for the Obligations (hereinafter
defined), a security interest in the Personal Propen:, as well as all other property and interests set forth in Section 1.1
herein to the full extent that the same may be subasct to the Uniform Commercial Code. Borrower hereby authorizes
Lender to file any financing or continuation statements under the Uniform Commercial Code with respect to the liens
granted under th.s Security Instrument or any of the. Other Security Documents, including financing statements with "all
assets" or other such descriptions of collateral.
Section 1.4. PLEDGE OF MONIES HELD. Borrower hereby pledges to and grants a continuing security interest
in favor of Lender any and all monies now or herea:i er held by Lender, including, without limitation, any sums deposited
in the Escrow Fund (hereinafter defined), Net Prtl:eeds (hereinafter defined) and condemnation awards or payments
(hereinafter described) as additional security for tht Obligations until expended or applied as provided in this Security
Instrument.
CON'J,ITIONS TO GRANT
TO HAVE AND TO HOLD the above granted i nd described Property to the use and benefit of Lender, and the
successors and assigns of Lender, forever;
PROVIDED, HOWEVER, these presents are uporl the express condition that, if Borrower shall well and truly pay to
Lender the Debt at the time and in the manner prov j Jed in the Note and this Security Instrument, shall perform the Other
Obligations as set forth in this Security Instrument and shall abide by and comply with each and every covenant and
condition set forth herein and in the Note, these presents and the estate hereby granted shall cease, terminate and be void,
except to the extent any provision herein provides the it shall survive the repayment of the obligations.
ARTICLE 2. - DEBT AND OBLIGATIONS SECURED
Section 2.1. DEBT. This Security Instrument and the grants, assignments and transfers made pursuant to the terms
hereafter are given for the purpose of securing the payment of the following, in such order of priority as Lender may
determine in its sole discretion (the "Debt"):
(a) the indebtedness evidenced by the Note in lawful money of the United States of America;
(b) interest, default interest, late charges and other sums, as provided in the Note, this Security
Instrument or the Other Security Documents (hereinafter defined);
(c) the Prepayment Consideration (defined in the Note), if any;
(d) all other monies agreed or provided to be paid by Borrower in the Note, this Security Instrument or
the Other Security Documents (hereinafter defined);
(e) all sums advanced pursuant to this Security Instrument to protect and preserve the Property and the
lien and the security interest created hereby; and
(f) all sums advanced and costs and expenses incurred by Lender in connection with the Debt or any
part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof, or the acquisition or
perfection of the security therefor, whether made or incurred at the request of Borrower or Lender; and
(g) any and all additional advances made by Lender to complete Improvements or to preserve or
protect the Property, or for taxes, assessments or insurance premiums, or for the performance of any of Borrower's
obligations hereunder or under the Other Security Documents (hereinafter defined).
Section 2.2. OTHER OBLIGATIONS. This Security Instrument and the grants, assignments and transfers made
pursuant to the terms hereof are also given for the purpose of securing the performance of the following (the "Other
Obligations"):
(a) all other obligations of Borrower contained herein;
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M each obligation of Borrower contained in the Note and in the Other Security Documents; and
(c) each obligation of Borrower contained in any renewal, extension, amendment, modification,
consolidation, change of, or substitution or replacement for, all or any part of the Note, this Security Instrument or the
Other Security Documents.
(d) any and all other indebtedness now or hereafter owing by Borrower to Lender.
Section 2.3. DEBT AND OTHER OBLIGATIONS. Borrowers obligations for the payment of the Debt and the
performance of the Other Obligations shall be referred to collectively as the "Obligations."
Section 2.4. PAYMENTS. Unless payments are made in the required amount in immediately available funds at the
place where the Note is payable, remittances in payment of all or any part of the Debt shall not, regardless of any receipt
or credit issued therefor, constitute payment until the required amount is actually received by Lender in funds
immediately available at the place where the Note is payable (or any other place as Lender, in Lenders sole discretion,
may have estabti.;hed by delivery of written notice thereof to Borrower) and shall be made and accepted subject to the
condition that any check or draft may be handled for collection in accordance with the practice of the collecting bank or
banks; provided, however, Lender shall not be required to accept payment for any Obligation in cash. Acceptance by
Lender of any payment in an amount less than the amount then due shall be deemed an acceptance on account only, and
the failure to pay the entire amount then due shall be and continue to be an Event of Default.
ARTICLE 3. - BORROWER COVENANTS
Borrower covenants and agrees that:
Section 3.1. PAYMENT OF DEBT AND PERFORMANCE OF OBLIGATIONS. Borrower will pay the Debt at
the time and in the manner provided in the Note and in this Security Instrument; without relief from valuation or
appraisement laws, and shall promptly and fully perform all of the Obligations in this Security Agreement and the Other
Security Documents (hereinafter defined).
Section 3.2. INCORPORATION BY REFERENCE. All the covenants, conditions and agreements contained in (a)
the Note and (b) all and any of the documents other than the Note or this Security Instrument now or hereafter executed
by Borrower and/or others and by or in favor of Lender, which wholly or partially secure or guaranty payment of the Note
or are otherwise executed and delivered in connection with the Loan (the "Other Security Documents") are hereby made a
part of this Security Instrument to the same extent and with the same force as if fully set forth herein.
Section 3.3. INSURANCE. Borrower shall maintain with respect to the Property at all times, insurance against loss
or damage by fire and other casualties and hazards by insurance written on an "all risks" basis including specifically
windstorm and/or hail damage, in an amount not less than the greater of: (i) the unpaid balance of the indebtedness as
evidenced by the Note, or (ii) the maximum insurable value of the Improvements, naming Lender as loss payee and
additional insured; (iii) if the Property is required to be insured pursuant to the National Flood Reform Act of 1994, and
the regulations promulgated there under, flood insurance is required in the amount equal to the lesser of the loan amount
or the maximum available under the National Flood Insurance Program, but in no event should the amount of coverage be
less than the value of the improved structure, naming Lender as additional insured and loss payee; (iv) liability insurance
providing coverage in such amount as Lender may require but in no event less than $500,000.00 naming Lender as an
additional insured; and (v) such other insurances as Lender may reasonably require from time to time.
All casualty insurance policies shall contain an endorsement or agreement by the insurer in form satisfactory to
Lender that any loss shall be payable in accordance with the terms of such policy notwithstanding any act of negligence
of Borrower and the further agreement of the insurer waiving rights of subrogation against Lender, and rights of set-off,
counterclaim or deductions against Borrower.
All insurance policies shall be in form, provide coverages, be issued by companies and be in amounts
satisfactory to Lender. At least 30 days prior to the expiration of such policy, Borrower shall furnish Lender with
evidence satisfe_ctory to Lender that such policy has been renewed or replaced. All such policies shall provide that the
policy will not be canceled or materially amended without at least 30 days prior written notice to Lender. In the event
Borrower fails to provide, maintain, keep in force and furnish to Lender the policies of insurance in such amounts, at such
premium, for such risks and by such means as Lender chooses, then Lender may procure such insurance at Borrower's
sole cost and expense, provided Lender shall have no responsibility to obtain any insurance, but if Lender does obtain
4 3048817
insurance, Lender shall have no responsibility to assure that the insurance obtained shall be adequate or provide
any protection to Borrower.
In the event of a foreclosure of the Security Instrument or other transfer of title to the Property in extinguishment
in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the
Property, to the extent assignable, and all proceeds payable thereunder shall thereupon vest in Lender or the purchaser at
such foreclosure or other transferee in the event of such other transfer of title.
Section 3.4. PAYMENT OF TAXES. ETC.
(a) Borrower shall promptly pay by the date same are initially payable all taxes, assessments, impact
fees, levies, inspection and license fees, water rates, sewer rents and other governmental impositions, including, without
limitation, vault and meter charges and license fees for the use of vaults, chutes and similar areas adjoining the Land, now
or hereafter levied or assessed or imposed against the Property or any part thereof (the "Taxes") not paid from the Escrow
Fund (hereinafter defined), all ground rents, maintenance charges and similar charges, now or hereafter levied or assessed
or imposed against the Property or any part thereof (the "Other Charges"), and all charges for utility services provided to
the Property as same become due and payable. Borrower will deliver to Lender, receipts or other, evidence satisfactory to
Lender that the Taxes, Other Charges and utility service charges have been so paid or are not then delinquent. Borrower
shall not suffer and shall promptly cause to be paid and discharged any lien or charge whatsoever, which may be or
become a lien or charge against the Property, except to the extent sums sufficient to pay all Taxes and Other Charges have
been deposited with Lender in accordance with the terms of this Security Instrument.
(b) After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate
legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Taxes, provided that (i) no Event of Default has occurred and is continuing
under the Note, this Security Instrument or any of the Other Security Documents, (ii) Borrower is permitted to do so
under the provisions of any other mortgage, deed of trust or deed to secure debt affecting the Property, (iii) such
proceeding shall suspend the collection of the Taxes from Borrower and from the Property or Borrower shall have paid all
of the Taxes under protest, (iv) such proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder, (v) neither
the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost
and (vi) Borrower shall have deposited with Lender adequate reserves (determined by Lender in its sole discretion) for the
payment of the Taxes, together with all interest and penalties thereon, unless Borrower has paid all of the Taxes under
protest, and Bo-rower shall have furnished such other security as may be required in the proceeding, or as may be
reasonably requested by Lender to insure the payment of any contested Taxes, together with all interest and penalties
thereon, taking into consideration the amount in the Escrow Fund available for payment of Taxes.
Section 3.5. ESCROW FUND. In addition to the initial deposits with respect to Taxes and Insurance Premiums
made by Borrower to Lender on the date hereof to be held by Lender in escrow, Borrower shall pay to Lender on the first
day of each calendar month (a) one-twclfth of an amount which would be sufficient to cover the payment of the Taxes
payable, or estimated by Lender to be payable, during the next ensuing twelve (12) months and (b) one-twelfth of an
amount which would be sufficient to pay the Insurance Premiums due for the renewal of the coverage afforded by the
Policies upon the expiration thereof (the amounts in (a) and (b) above shall be called the "Escrow Fund"). Borrower
agrees to notify Lender immediately of any changes to the amounts, schedules and instructions for payment of any Taxes
and Insurance Premiums of which it has or obtains knowledge and authorizes Lender or its agent to obtain the bills for
Taxes directly from the appropriate taxing authority. The Escrow Fund and the payments of interest or principal or both,
payable pursuant to the Note shall be added together and shall be paid as an aggregate sum by Borrower to Lender.
Provided there are sufficient amounts in the Escrow Fund and no Event of Default exists, Lender shall be obligated to pay
the Taxes and Insurance Premiums as they become due on their respective due dates on behalf of Borrower by applying
the Escrow Fund to the payments of such Taxes and Insurance Premiums required to be made by Borrower. If the
amount of the Escrow Fund shall exceed the amounts reasonably necessary for the payment of Taxes and Insurance
Premiums, Lender shall, in its discretion, return any excess to Borrower or credit such excess against future payments to
be made to the Escrow Fund. In allocating such excess, Lender may deal with the person shown on the records of Lender
to be the owner of the Property. If the Escrow Fund is not sufficient to pay the items set forth in (a) and (b) above as and
when they are due, Borrower shall promptly pay to Lender, upon demand, an amount which Lender shall reasonably
estimate as sufficient to make up the deficiency. Unless otherwise required by applicable state or federal law, the Escrow
Fund shall not constitute a trust fund and may be commingled with other monies held by Lender. Unless otherwise
required by applicable state or federal law, no earnings or interest on the Escrow Fund shall be payable to Borrower.
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Upon payment ir full of the Debt, and full performance of the Obligations, the funds remaining in the Escrow Fund, if
any, shall be paid to the record owner of the Land encumbered by the lien of this Security Instrument within a reasonable
time following the date of such full payment and performance.
Section 3.6. CONDEMNATION. Borrower shall promptly give Lender notice of the actual or threatened
commencement of any condemnation or eminent domain proceeding and shall deliver to Lender copies of any and all
papers, documents, surveys and correspondence served or received in connection with such proceedings.
Notwithstanding any taking by any public or quasi-public authority through eminent domain or otherwise (including, but
not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay
the Debt at the time and in the manner provided for its payment in the Note and in this Security Instrument and the Debt
shall not be reduced until any award or payment therefor shall have been actually received and applied by Lender, after
the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the
interest paid on tae award by the condemning authority but shall be entitled to receive out of the award interest at the rate
or rates provided in the Note. Borrower hereby assigns and shall cause all awards and payments made in any
condemnation or eminent domain proceeding, to be paid directly to Lender. Lender may apply any award or payment to
the reduction or discharge of the Debt whether or not then due and payable. If the Property is sold, through foreclosure or
otherwise, prior to the receipt by Lender of the award or payment, Lender shall have the right, whether or not a deficiency
judgment on the Note shall have been sought, recovered or denied, to receive the award or payment, or a portion thereof
sufficient to pay the Debt. In addition, Borrower authorizes Lender, at Lender's option but without any obligation, as
attorney-in-fact for Borrower to commence, appear in and prosecute, in Borrowers or Lender's name, any action or
proceeding relating to any condemnation (which term for purposes hereunder shall mean any action regarding damage or
taking by any governmental authority, quasi-governmental authority, any party having power of condemnation, or any
transfer by priva-e sale in lieu thereof) or other taking of the Property and to settle or compromise any claim in connection
with such condemnation or other taking. Notwithstanding any application of condemnation proceeds by Lender to the
Debt, Borrower shall repair, restore and rebuild the Property affected by the condemnation to a condition as close to that
existing prior to such condemnation as is reasonable practicable, and otherwise sufficient for the use and enjoyment
thereof as determined by Lender.
Section 3.7. RESTORATION AFTER CASUALTY.
(a) In the event of loss, Borrower shall give immediate written notice to the insurance carrier and to
Lender. Borrower hereby authorizes and appoints Lender as attorney in fact for Borrower to make proof of loss, to adjust
and compromise any claims under policies of property damage insurance, to appear in and prosecute any action arising
from such property damage insurance policies, to collect and receive the proceeds of property damage insurance, and to
deduct from such proceeds Lenders expenses incurred in the collection of such proceeds. This power of attorney is
coupled with an interest and therefore is in-evocable. However, nothing contained in this Section 3.7 shall require Lender
to incur any expense or take any action. Lender may, at Lender's option, (1) hold the balance of such proceeds to be used
to reimburse Borrower for the cost of restoring and repairing the Property to the equivalent of its original condition or to a
condition approved by Lender (the "Restoration"), or (2) apply the balance of such proceeds to the payment of the Debt,
whether or not then due. To the extent Lender determines to apply insurance proceeds to Restoration, Lender shall do so
in accordance with Lender's then-current policies relating to the restoration of casualty damage on similar properties.
(b) Lender shall not exercise its option to apply insurance proceeds to the payment of the Debt if all of the
following conditions are met: (1) no Event of Default (or any event which, with the giving of notice or the passage of
time, or both, would constitute an Event of Default) has occurred and is continuing; (2) Lender determines, in its
discretion, that there will be sufficient funds to complete the Restoration; (3) Lender determines, in its discretion, that the
net cash flow from the Property after completion of the Restoration will be sufficient to meet all operating costs and other
expenses, deposits to the Escrow Fund, deposits to reserves and loan repayment obligations relating to the Property; (4)
Lender determines, in its discretion, that the Restoration will be completed before the earlier of (A) one year before the
maturity date of the Note or (B) one year after the date of the loss or casualty; and (5) upon Lender's request, Borrower
provides Lender evidence of the availability during and after the Restoration of the insurance required to be maintained
by Borrower pursuant to Section 3.3.
Section 3.8. LEASES AND RENTS. Borrower shall maintain, enforce and cause to be performed all of the terms
and conditions .ruder any Lease or sublease, which may constitute a portion of the Property. Borrower shall not, without
the consent of Lender enter into any new Lease of all or any portion of the Property, agree to the cancellation or surrender
under any Lease of all or any portion of the Property, agree to prepayment of Rents, issues or profits (other than Rent paid
at the signing of a lease or sublease), modify any such Lease so as to shorten the tern, decrease the Rent, accelerate the
payment of Rent, or change the terms of any renewal option, provided that such action (taking into account, in the case of
6
cf? )
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a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected
space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such
Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and
any subordination agreement binding upon Lender with respect to such Lease. Any such purported new Lease,
cancellation surrender, prepayment or modification made without the written consent of Lender shall be void as against
Lender.
Section 3.9. MAINTENANCE AND USE OF PROPERTY. Borrower shall cause the Property to be maintained
in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished
or materially altered (except for normal replacement of the Personal Property with replacement property of equal or
greater value) without the consent of Lender. Borrower shall promptly repair, replace or rebuild any part of the Property
which may be d,.stroyed by any casualty, or become damaged, wom or dilapidated or which may be affected by any
condemnation or taking proceeding and shall complete and pay for any structure at any time in the process of construction
or repair on the Land. Borrower shall not initiate, join in, acquiesce in, or consent to any change in any private restrictive
covenant, zoning law or other public or private restriction, limiting, defining or changing the uses which may be made of
the Property or any pan thereof. If under applicable zoning provisions the use of all or any portion of the Property is or
shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the
nonconforming improvement to be abandoned without the express written consent of Lender, and Borrower shall take
such other steps as Lender may require to establish the legality of such non-conforming use.
Section 3.10. WASTE. Borrower shall not commit or suffer any waste of the Property or make any change in the
use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of
the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or substantially increase
the rates thereunder, or do or permit to be done thereon anything that may in any way impair the value of the Property or
the security of this Security Instrument. Borrower will not, without the prior written consent of Lender, permit any
drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the
Land, regardless of the depth thereof or the method of mining or extraction thereof.
Section 3.11. COMPLIANCE WITH LAWS.
(a) Borrower shall promptly comply with all existing and future federal, state and local laws, orders,
ordinances, governmental rules and regulations or court orders affecting the Property, and the use thereof, including any
Environmental Law (hereinafter defined) ("Applicable laws").
(b) Borrower shall from time to time, upon Lender's request, provide Lender with evidence reasonably
satisfactory to Lender that the Property complies with all Applicable Laws or is exempt from compliance with Applicable
Laws.
(c) Notwithstanding any provisions set forth herein or in any document regarding Lender's approval of
alterations of the Property, Borrower shall not alter the Property in any manner which would materially increase
Borrowers responsibilities for compliance with Applicable Laws without the prior written approval of Lender. Lenders
approval of the plans, specifications, or working drawings for alterations of the Property shall create no responsibility or
liability on behalf of Lender for their completeness, design, sufficiency or their compliance with Applicable Laws. The
foregoing shall apply to tenant improvements constructed by Borrower or by any of its tenants. Lender may condition
any such approval upon receipt of a certificate of compliance with Applicable Laws from an independent architect,
engineer, or other person acceptable to Lender.
(d) Borrower shall give prompt notice to Lender of the receipt by Borrower of any notice related to a
violation or threatened violation of any Applicable Laws and of the commencement or threatened commencement of any
proceedings or :nvestigations which relate to compliance with Applicable Laws.
(e) After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal
proceedings, promptly initiated and conducted in good faith and with due diligence, the Applicable Laws affecting the
Property, provided that (i) no Event of Default has occurred and is continuing under the Note, this Security Instrument or
any of the Other Security Documents; (ii) Borrower is permitted to do so under the provisions of any other mortgage,
deed of trust or deed to secure debt affecting the Property; (iii) such proceeding shall be permitted under and be
conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and
shall not constitute a default thereunder; (iv) neither the Property, any part thereof or interest therein, any of the tenants or
occupants thereof, Borrower, nor Lender shall be affected in any material adverse way as a result of such proceeding; (v)
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non-compliance with the Applicable Laws shall not impose civil or criminal liability on Borrower or
Lender; and (vi) Borrower shall have furnished to Lender all other items reasonably requested by Lender.
Section 3.12. BOOKS AND RECORDS
(a) Borrower shall keep and maintain at all times at the Property or the management agent's offices, and
upon Lender's request shall make available at the Property, complete and accurate books of account and records
(including copies of supporting bills and invoices) adequate to reflect correctly the operation of the Property, and copies
of all written contracts, Leases, and other instruments which affect the Property. Following a default by Borrower, the
books, records, contracts, Leases and other instruments shall be subject to examination and inspection at any reasonable
time by Lender.
(b) Following a default by Borrower, Borrower shall furnish to Lender all of the following:
(1) within ten (10) days following Lenders written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, a statement of income and expenses for Borrower's operation of the Property
for that fiscal year, a statement of changes in financial position of Borrower relating to the Property for that fiscal year
and, when requested by Lender, a balance sheet showing all assets and liabilities of Borrower relating to the Property as
of the end of that fiscal year,
(2) within ten (10) days following Lenders written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, and at any other time upon Lenders request, a rent schedule for the Property
showing the narr_e of each tenant, and for each tenant, the space occupied, the lease expiration date, the rent payable for
the current Monti), the date through which rent has been paid, and any related information requested by Lender;
(3) within ten (10) days following Lender's written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, and at any other time upon Lenders request, an accounting of all security
deposits held pursuant to all Leases, including the name of the institution (if any) and the names and identification
numbers of the accounts (if any) in which such security deposits are held and the name of the person to contact at such
financial institution, along with any authority or release necessary for Lender to access information regarding such
accou nts;
(4) within ten (10) days following Lender's written request and thereafter annually within 120 days
after the end of each fiscal year of Borrower, and at any other time upon Lenders request, a statement that identifies all
owners of any interest in Borrower and the interest held by each, if Borrower is a corporation, all officers and directors of
Borrower, and if Borrower is a limited liability company, all managers who are not members;
(5) within ten (10) days following Lender's written request and thereafter monthly a property
management report for the Property, showing the number of inquiries made and rental applications received from tenants
or prospective tenants and deposits received from tenants and any other information requested by Lender;
(5) within ten (10) days following Lender's written request and thereafter monthly a balance sheet, a
statement of income and expenses for Borrower and a statement of changes in financial position of Borrower for
Borrower's most recent fiscal year; and
(7) within ten (10) days following Lender's written request and thereafter monthly a statement of
income and expense for the Property for the prior month or quarter.
(c) Each of the statements, schedules and reports required hereunder shall be certified to be complete and
accurate by an individual having authority to bind Borrower, and shall be in such form and contain such detail as Lender
may reasonably require; provided that Lender, in Lenders sole discretion, may require that any statements, schedules or
reports be audited at Borrowers expense by independent certified public accountants acceptable to Lender.
(d) If Borrower fails to provide in a timely manner the statements, schedules and reports required
hereunder, Lender shall have the right to have Borrowers books and records audited, at Borrowers expense, by
independent cert'fied public accountants selected by Lender in order to obtain such statements, schedules and reports, and
all related costs and expenses of Lender shall become immediately due and payable and shall become an additional part of
the Debt.
(e) If an Event of Default has occurred and is continuing, Borrower shall deliver to Lender upon written
8
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demand all books and records relating to the Property or its operation.
{f) Borrower authorizes Lender to obtain a credit report on Borrower at any time.
(g) Borrower, any Guarantor and any Indemnitor shall furnish Lender with such other additional financial
or management information (including State and Federal tax returns) as may, from time to time, be reasonably required
by Lender in form and substance satisfactory to Lender.
(h) Borrower, any Guarantor and any Indemnitor shall furnish to Lender and its agents convenient facilities
for the examination and audit of any such books and records.
Section 3.13. PAYMENT FOR LABOR AND MATERIALS. Borrower will promptly pay when due all bills and
costs for labor, materials, and specifically fabricated materials incurred in connection with the Property and never permit
to exist in respec: of the Property or any part thereof any lien or security interest, even though inferior to the liens and the
security interests hereof, and in any event never permit to be created or exist in respect of the Property or any part thereof
any other or add.tional lien or security interest other than the liens or security interests hereof, except for the Permitted
Exceptions (defined below).
Section 3.14. PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and perform each and
every term to be observed or performed by Borrower pursuant to the terms of any agreement or recorded instrument
affecting or pertaining to the Property, or given by Borrower to Lender for the purpose of further securing an Obligation
and any amendments, modifications or changes thereto.
Section 3.15. CHANGE OF NAME IDENTITY OR STRUCTURE. Borrower shall not change Borrower's name,
identity (including its trade name or names) or, if not an individual, Borrowers corporate, partnership or other structure or
jurisdiction where the Borrower is organized without notifying the Lender of such change in writing at least thirty (30)
days prior to the effective date of such change and, in the case of a change in Borrower's structure or the jurisdiction
where Borrower is organized, without first obtaining the prior written consent of the Lender.
Section 3.16. EXISTENCE. Borrower will continuously maintain (a) its existence and shall not dissolve or permit
its dissolution, (b) its rights to do business in the state where the Property is located and (c) its franchises and trade names.
Section 3.17. MANAGEMENT. The Property shall be managed by either: (a) Borrower or an entity affiliated with
Borrower and approved by Lender for so long as Borrower or said affiliated entity is managing the Property in a first class
manner, or (b) a professional property management company approved by Lender. Management by an affiliated entity or
a professional property management company shall be pursuant to a written agreement approved by Lender which shall
be in all respects subordinate to this Security Instrument. Following a default by Borrower, no manager shall be removed
or replaced or the terms of any management agreement modified or amended without the prior written consent of Lender.
In the event (x) of default hereunder or under any management contract then in effect, which default is not cured within
any applicable grace or cure period or (y) of the bankruptcy or insolvency of the manager, Lender shall have the right to
immediately terminate, or to direct Borrower to immediately terminate, such. management contract and to retain, or to
direct Borrower to retain, a new management agent approved by Lender. All Rents generated by or derived from the
Property shall first be utilized solely for current expenses directly attributable to the ownership and operation of the
Property, including, without limitation, current expenses relating to Borrower's liabilities and obligations with respect to
the Note, this Security Instrument and the Other Security Documents, and none of the Rents generated by or derived from
the Property shzil be diverted by Borrower and utilized for any other purpose unless all such current expenses attributable
to the ownership and operation of the Property have been fully paid and satisfied.
Section 3.18. PRINCIPAL PLACE OF BUSINESS. In the event that Borrower shall change the principal place of
business or chief executive office, or, in the event Borrower is one or more tiatural persons, the location of its permanent
residence, all a, set forth in Subsection 4.18 below, Borrower shall immediately notify Lender in writing. Borrower shall
execute and deliver such additional financing statements, security agreements and other instruments which may be
necessary to effectively evidence or perfect Lenders security interest in the Property as a result of such change of
principal place of business or residence.
ARTICLE 4. - REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that:
C??
9 3048817
Section 4. L WARRANTY OF TITLE. Borrower has good and marketable title to the Property and has the right to
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and that Borrower possesses an
unencumbered fee simple absolute estate in the Land and the Improvements and that it owns the Property free and clear of
all liens, encumbrances and charges whatsoever except for those exceptions shown in the title insurance policy insuring
the lien of this Security Instrument (the "Permitted Exceptions"). Borrower shall forever warrant, defend and preserve the
title and the validity and priority of the lien of this Security Instrument and shall forever warrant and defend the same to
Lender against the claims of all persons whomsoever, and shall make such further assurances to perfect fee simple title to
the Property as Lender may reasonably require.
Section 4.2. LEGAL STATUS AND AUTHORITY. Borrower (a) is duly organized, validly existing and in good
standing under the laws of its state of organization or incorporation; (b) is duly qualified to transact business and is in
good standing in the state where the Property is located; and (c) has all necessary approvals, governmental and otherwise,
and full power and authority to own, operate and lease the Property. Borrower (and the undersigned representative of
Borrower, if any) has full power, authority and legal right to execute this Security Instrument, and to mortgage, grant,
bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms hereof and to keep and
observe all of the terms of this Security Instrument on Borrower's part to be performed.
Section 4.3. VALIDITY OF DOCUMENTS. (a) The execution, delivery and performance of the Note, this Security
Instrument and tie Other Security Documents and the borrowing evidenced by the Note (i) are within the power and
authority of Borrower, (ii) have been authorized by all requisite organizational action; (iii) have received all necessary
approvals and consents, corporate, governmental or otherwise; (iv) will not violate, conflict with, result in a breach of or
constitute (with rotice or lapse of time, or both) a default under any provision of law, any order or judgment of any court
or governmental authority, the articles of incorporation, by-laws, partnership or trust agreement, articles of organization,
operating agreement, or other governing instrument of Borrower, or any indenture, agreement or other instrument to
which Borrower is a party or by which it or any of its assets or the Property is or may be bound or affected; (v) will not
result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of its assets, except the lien
and security interest created hereby; and (vi) will not require any authorization or license from, or any filing with, any
governmental or other body (except for the recordation of this Security Instrument in appropriate land records in the State
where the Property is located and except for Uniform Commercial Code filings relating to the security interest created
hereby), and (b) the Note, this Security Instrument and the Other Security Documents constitute the legal, valid and
binding obligations of Borrower, enforceable in accordance with their terms.
Section 4.4. LITIGATION. There is no action, suit or proceeding, judicial, administrative or otherwise (including
any condemnation or similar proceeding), pending or, to the best of Borrower's knowledge, threatened or contemplated
against Borrower, a Guarantor, if any, an Indemnitor, if any, or against or affecting the Property that has not been
disclosed to Lender by Borrower in writing.
Section 4.5. STATUS OF PROPERTY.
(a) Borrower has obtained all necessary certificates, licenses and other approvals, governmental and
otherwise, necessary for the operation of the Property and the conduct of its business and all required zoning, building
code, land use, environmental and other similar permits or approvals, all of which are in full force and effect as of the date
hereof and not subject to revocation, suspension, forfeiture or modification.
(b) The Property and the present and contemplated use and occupancy thereof are in full compliance
with all applicable zoning ordinances, building codes, land use laws, Environmental Laws and other similar laws.
(c) The Property is served by all utilities required for the current or contemplated use thereof. All
utility service is provided by public utilities and the Property has accepted or is equipped to accept such utility service.
(d) All public roads and streets necessary for service of and access to the Property for the current or
contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for
use by the public, and have been dedicated to and accepted for public maintenance by the applicable municipal or county
authorities.
(e) The Property is served by public water and sewer systems.
(f) The Property is free from damage caused by fire or other casualty.
10 3048817
(g) All costs and expenses of any and all labor, materials, supplies and equipment used in the
construction of the Improvements have been paid in full.
(h) Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other
than tenants" property) used in connection with the operation of the Property, free and clear of any and all security
interests, liens or encumbrances, except the lien and security interest created hereby.
(i) All liquid and solid waste disposal, septic and sewer systems located on the Property are in a good
and safe condition and repair and in compliance with all Applicable Laws.
0) No portion of the Improvements is located in an area identified by the Federal Emergency
Management Agency or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance
Acts or, if any ?ortion of the Improvements is located within such area, Borrower has obtained and will maintain the
insurance required pursuant to the terms hereof.
(k) All the Improvements lie within the boundaries of the Land.
Section 4.6. NO FOREIGN PERSON. Borrower is not a "foreign person" within the meaning of Section 1445(f)(3)
of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations.
Section 4.7. SEPARATE TAX LOT. The Property is assessed for real estate tax purposes as one or more wholly
independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots,
and no other land or improvements is assessed and taxed together with the Property or any portion thereof.
Section 4.8. LEASES. Except as disclosed in the rent roll for the Property delivered to and approved by Lender, (a)
Borrower is the sole owner of the entire lessor's interest in the Leases; (b) the Leases are valid and enforceable and in full
force and effect; (c) all of the Leases are arms-length agreements with bona fide, independent third parties; (d) no party
under any Lease is in default; (e) all Rents due have been paid in full; (f) the terms of all alterations, modifications and
amendments to the Leases are reflected in the certified occupancy statement delivered to and approved by Lender, (g)
none of the Rents reserved in the Leases have been assigned or otherwise pledged or hypothecated; (h) none of the Rents
have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected
in advance); (i) the premises demised under the Leases have been completed in accordance with the Leases, and the
tenants under the Leases have accepted the same and have taken possession of the same on a rent-paying basis; 6) there
exist no offsets or defenses to the payment of any portion of the Rents and Borrower has no monetary obligation to any
tenant under any Lease; (k) Borrower has received no notice from any tenant challenging the validity or enforceability of
any Lease; (1) there are no agreements with the tenants under the Leases other than expressly set forth in each Lease; (m)
the Leases are valid and enforceable against Borrower and the tenants set forth therein; (n) no Lease contains an option to
purchase, right of first refusal to purchase, right of first refusal to relet, or any other similar provision; (o) no person or
entity has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease; (p) each Lease
is subordinate to this Security Instrument, either pursuant to its terms or a recordable subordination agreement; (q) no
Lease has the benefit of a non-disturbance agreement that would be considered unacceptable to prudent institutional
lenders; (r) all security deposits relating to the Leases reflected on the certified rent roll delivered to Lender have been
collected by Borrower, and (s) no brokerage commissions or finders fees are due and payable regarding any Lease.
Section 4.9. FINANCIAL CONDITION.
(a) (i) Borrower is solvent and no proceeding under Creditors Rights Laws (hereinafter defined) with
respect to Borrower has been initiated, and (ii) Borrower has received reasonably equivalent value for the granting of this
Security Instrument.
(b) No petition in bankruptcy has been filed by or against Borrower, any Guarantor, any Indemnitor or
any related entity, or any principal, general partner or member thereof, in the last seven (7) years, and neither Borrower,
any Guarantor, any Indemnitor nor any related entity, or any principal, general partner or member thereof, in the last
seven (7) years has ever made any assignment for the benefit of creditors or taken advantage of any Creditors Rights
Laws.
Section 4.10. BUSINESS PURPOSES. The loan evidenced by the Note secured by the Security Instrument and the
Other Security Documents (the "Loan") is solely for the business purpose of Borrower, and is not for personal, family,
household, or agricultural purposes.
30488]7
Section 4.11. TAXES. Borrower, any Guarantor and any Indemnitor have filed all federal, state, county, municipal,
and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and
related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them.
Neither Borrower, any Guarantor nor any Indemnitor knows of any basis for any additional assessment in respect of any
such taxes and related liabilities for prior years.
Section 4.12. MAILING ADDRESS. Borrower's mailing address, as set forth in the opening paragraph hereof or as
changed in accordance with the provisions hereof, is true and correct.
Section 4.13. NO CHANGE IN FACTS OR CIRCUMSTANCES. All information in the application for the Loan
submitted to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in
connection with the application or in satisfaction of the terms thereof, are accurate, complete and correct in all respects.
There has been ro adverse change in any condition, fact, circumstance or event that would make any such information
inaccurate, incomplete or otherwise misleading.
Section 4.14. DISCLOSURE. Borrower has disclosed to Lender all material facts and has not failed to disclose any
material fact that could cause any representation or warranty made herein to be materially misleading.
Section 4.15. THIRD PARTY REPRESENTATIONS. Each of the representations and the warranties made by each
Guarantor and Indemnitor in any Other Security Document(s) is true and correct in all material respects.
Section 4.16. ILLEGAL ACTIVITY. No portion of the Property has been or will be purchased, improved, equipped
or furnished with proceeds of any illegal activity and to the best of Borrowers knowledge, there are no illegal activities or
activities relating to controlled substances at the Property.
Section 4.17. PERMITTED EXCEPTIONS. None of the Permitted Exceptions, individually or in the aggregate,
materially interfere with the benefits of the security intended to be provided by the Security Instrument, the Note, and the
Other Security Documents, materially and adversely affect the value of the Property, impair the use or the operation of the
Property or impair Borrower's ability to pay its obligations in a timely manner.
Section 4.18. PRINCIPAL PLACE OF BUSINESS. Borrowers principal place of business is as set forth in the
opening paragraph to this Security Instrument.
Section 4.19. PROPERTY USE. The Property shall continue to be used in accordance with its present use, and for
no other use without the prior written consent of Lender.
ARTICLE 5. • OBLIGATIONS AND RELIANCE
Section 5.1. RELATIONSHIP OF BORROWER AND LENDER. The relationship between Borrower and Lender
is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with Borrower, and no term
or condition of any of the Note, this Security Instrument and the Other Security Documents shall be construed so as to
deem the relationship between Borrower and Lender to be other than that of debtor and creditor.
Section 5.2. NO RELIANCE. The members, general partners, principals and (if Borrower is a trust) beneficial
owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower
and Lender are relying solely upon such expertise in connection with the ownership and operation of the Property.
Borrower is not relying on Lender's expertise, business acumen or advice in connection with the Property.
Section 5.3. NO LENDER OBLIGATIONS. Notwithstanding anything to the contrary contained herein, Lender is
not undertaking the performance of (a) any obligations under the Leases; or (b) any obligations with respect to such
agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents. By
accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this
Security Instrument, the Note or the Other Security Documents, including without limitation, any officer's certificate,
balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall
not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or effectiveness of same, and such
acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.
Section 5.4. RELIANCE. Borrower recognizes and acknowledges that in accepting the Note, this Security
Instrument and the Other Security Documents, Lender is expressly and primarily relying on the truth and accuracy of the
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warranties and representations set forth herein without any obligation to investigate the Property and notwithstanding any
investigation of the Property by Lender; that such reliance existed on the pan of Lender prior to the date hereof; that the
warranties and representations are a material inducement to Lender in accepting the Note, this Security Instrument and the
Other Security Documents; and that Lender would not be willing to make the Loan and accept this Security Instrument in
the absence of the warranties and representations as set forth herein.
ARTICLE 6. - FURTHER ASSURANCES
Section 6.1. RECORDING OF SECURITY INSTRUMENT ETC. Borrower forthwith upon the execution and
delivery of this Security Instrument and thereafter, from time to time, will cause this Security Instrument and any of the
Other Security Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required
by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof
upon, and the intcrest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all
expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, this Security Instrument,
the Other Security Documents, any note or mortgage supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and
all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Security Instrument, any mortgage supplemental hereto, any security instrument
with respect to tae Property or any instrument of further assurance, and any modification or amendment of the foregoing
documents, except where prohibited by law so to do.
Section 6.2. FURTHER ACTS. ETC. Borrower will, at the cost of Borrower, and without expense to Lender, do,
execute, acknowledge and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of
assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Lender the Property and rights hereby mortgaged, granted,
bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be,
or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the
intention or facilitating the performance of the terms of this Security Instrument or for filing, registering or recording this
Security Instrument, or for complying with all applicable state or federal law. Borrower, on demand, will execute and
deliver and hereby authorizes Lender, following 10 days' notice to Borrower, to execute in the name of Borrower or
without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence or perfect more effectively the security interest of Lender in the Property.
Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and
perfecting any and all rights and remedies available to Lender hereunder.
Section 6.3. CHANGES IN TAX DEBT CREDIT AND DOCUMENTARY STAMP LAWS.
(a, If *any Jaw is enacted or adopted or amended after the date of this Security Instrument which
deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or
indirectly, on the Debt or Lenders interest in the Property, Borrower will pay the tax, with interest and penalties thereon,
if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to
Lender or unenforceable or provide the basis for a defense of usury, then Lender shall have the option, exercisable by
written notice of not less than ninety (90) days, to declare the Debt immediately due and payable.
(b) Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for
any part of the Taxes or Other Charges assessed against the Property, or any part thereof.
(c) If at any time the United States of America, any State thereof or any subdivision of any such State
shall require revenue or other stamps to be affixed to the Note, this Security Instrument, or any of the Other Security
Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties
thereon, if any.
Section 6.4. ESTOPPEL CERTIFICATES.
(a) After request by Lender, Borrower, within ten (10) days, shall furnish Lender or any proposed
assignee with a statement, duly acknowledged and certified, setting forth (i) the original principal amount of the Note, (ii)
the unpaid principal amount of the Note, (iii) the rate of interest of the Note, (iv) the terms of payment and maturity date
of the Note, (v) the date installments of interest and/or principal were last paid, (vi) that, except as provided in such
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statement, there are no defaults or events which with the passage of time or the giving of notice or both,
would constitute an event of default under the Note or the Security Instrument, (vii) that the Note and this Security
Instrument are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such
modification, (viii) whether any offsets or defenses exist against the obligations secured hereby and, if any are alleged to
exist, a detailed description thereof, (ix) that all Leases are in full force and effect and (provided the Property is not a
residential multifamily property) have not been modified (or if modified, setting forth all modifications), (x) the date to
which the Rents thereunder have been paid pursuant to the Leases, (xi) whether or not, to the best knowledge of
Borrower, any of the lessees under the Leases arc in default under the Leases, and, if any of the lessees are in default,
setting forth the specific nature of all such defaults, (xii) the amount of security deposits held by Borrower under each
Lease and that such amounts are consistent with the amounts required under each Lease, and (xiii) as to any other matters
reasonably requested by Lender and reasonably related to the Leases, the obligations secured hereby, the Property or this
Security Instrument.
(b) Borrower shall use its best efforts to deliver to Lender, promptly upon request, duly executed
estoppel certificates from any one or more lessees as required by Lender attesting to such facts regarding the Lease as
Lender may require, including, but not limited to attestations that each Lease covered thereby is in full force and effect
with no defaults thereunder on the part of any party, that none of the Rents have been paid more than one month in
advance, except as security, and that the lessee claims no defense or offset against the full and timely performance of its
obligations under the Lease.
(c) Upon any transfer or proposed transfer of the Property at Lender's request, Borrower, any
Guarantors and any Indemnitor(s) shall provide an estoppel certificate in such form, substance and detail as Lender may
require.
Section 6.5. FLOOD INSURANCE. After Lender's request, Borrower shall deliver evidence satisfactory to Lender
that no portion of the Improvements is situated in a federally designated "special flood hazard area" or, if it is, that
Borrower has obtained insurance meeting the requirements hereof.
Section 6.6. REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an officer of Lender as to the loss,
theft, destruction or mutilation of the Note or any Other Security Document which is not of public record, and, in the case
of any such mutilation, upon surrender and cancellation of such Note or Other Security Document, Borrower will issue, in
lieu thereof, a replacement Note or Other Security Document, dated the date of such lost, stolen, destroyed or mutilated
Note or Other Security Document in the same principal amount thereof and otherwise of like tenor.
ARTICLE 7. - DUE ON SALEIENCUMBRANCE
Section 7.1. TRANSFER DEFINITIONS. For purposes of this Article, an "Affiliated Manager" shall mean any
managing agent in which Borrower, any Guarantor or Indemnitor has, directly or indirectly, any legal, beneficial or
economic interest; a "Restricted Party" shall mean Borrower, any Guarantor, any Indemnitor, or any Affiliated Manager
or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of
Borrower, any. Guarantor, any Indemnitor, any Affiliated Manager or any non-member manager; and a "Sale" shall mean
a voluntary or involuntary sale, conveyance, transfer or pledge of a legal or beneficial interest.
Section 7.2. NO SALEIENCUMBRANCE
(a) Borrower shall not sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options
with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law
or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial
interest therein (collectively a "Transfer"), other than pursuant to Leases of space in the Improvements to tenants in
accordance with the provisions hereof without the prior written consent of Lender.
(b) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower
agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing
all or a substantial pan of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment
or other transfer of, or the grant of a security interest in, Borrowers right, title and interest in and to any Leases or any
Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation's stock
or the creation or issuance of new stock in one or a series of transactions, by which such corporation's stock shall be
vested in a party or parties who are not now shareholders; (iv) if a Restricted Party is a limited or general partnership or
joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale
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14 3048817
or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such
partnership interest, or the Sale or Pledge of limited partnership interests or the creation or issuance of new limited
partnership interests in one or a series of transactions, by which such limited partnership interests shall be vested in a
party or parties who are not now limited partners; (v) if a Restricted Party is a limited liability company, any merger or
consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no
managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no
managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of
non-managing membership interests or the creation or issuance of new non-managing membership interests in one or a
series of transactions, by which such non-managing membership interests shall be vested in a party or parties who are not
now non-managing members; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or
Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial
interests in one or a series of transactions, by which such beneficial or legal interests shall be vested in a party or parties
who are not now legal or beneficial owners; or (vii) the removal or the resignation of the managing agent (including,
without limitation, an Affiliated Manager) other than in accordance herewith.
Section 7.3. PERMITTED TRANSFERS. Notwithstanding anything to the contrary contained herein, the
following transfers shall not be deemed to be a Transfer: (a) a transfer by devise or descent or by operation of law upon
the death of a member, partner or shareholder of a Restricted Party; and (b) the Sale or Pledge of stock or limited
partnership or non-managing membership interests in a Restricted Party by which, in one or a series of transactions, in the
aggregate, not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing
membership interests (as the case may be) in a Restricted Party, shall be vested in parties not now having an ownership
interest; provided, however, no such transfer shall result in the change of voting control in the Restricted Party, and as a
condition to each such transfer, Lender shall receive not less than ten (10) days prior written notice of such proposed
transfer.
Section 7.4. ASSIGNMENT/ASSUMPTION. Notwithstanding anything to the contrary contained in this Article 7,
and in addition to the transfers permitted hereunder, Lender may, in Lender's sole and absolute discretion, permit a sale,
assignment, or other transfer of the Property, provided that: (i) Lender receives sixty (60) days prior written notice of the
proposed transfer hereunder; (ii) no Event of Default has occurred and is continuing; and (iii) all underwriting
requirements deemed necessary by Lender (in its sole and absolute discretion) are satisfied, including but not limited to
the following:
(a) Borrower shall pay any and all fees and out-of-pocket costs incurred in connection with the transfer
of the Property (including, without limitation, Lender's counsel fees and disbursements and all recording fees, title
insurance premiums and mortgage and intangible taxes);
(b) The proposed transferee (the "Transferee") or Transferee's principals must have demonstrated
expertise in owning and operating properties similar in location, size and operation to the Property, which expertise shall
be determined by Lender, in Lenders sole discretion;
(c) Transferee and Transferee's principals shall, as of the date of such transfer, have an aggregate net
worth and liquidity acceptable to Lender, in Lenders sole discretion;
(d) Transferee shall assume all of the obligations of Borrower under the Loan Documents in all
respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to
Lender (in Lender's sole discretion) and one or more Transferee's principals shall execute in favor of Lender a Guaranty
and an Affidavit and Indemnity of Borower and Guarantor Regarding Hazardous and Toxic Materials;
(e) No Event of Default or event which, with the giving of notice, passage of time or both, shall
constitute an Event of Default, shall otherwise occur as a result of such transfer, and Transferee and Transferee's
principals shall deliver (A) all organization documentation requested by Lender, which shall be satisfactory to Lender (in
Lenders sole discretion), and (B) all certificates, agreements and covenants required by Lender; and
(f) Borrower shall deliver, at its sole cost and expense, an endorsement to the existing title policy
insuring the Security Instrument, as modified by the assumption agreement, as a valid first lien on the Property and
naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the
assumption agreement, the Property shall not be subject to any additional exceptions or liens other than those contained in
the title policy issued on the date hereof.
Cam'
15 3048817
If all Lender requirements have been satisfied (including but not limited to those listed hereinabove) and
Lender approves the proposed transfer to the Transferee, then Borrower shall be released from all liability under this
Security Instrument, the Note and the Other Loan Documents immediately upon the transfer of the Property to the
Transferee.
ARTICLE 8. - DEFAULT
Section 8.1. EVENTS OF DEFAULT. The occurrence of any one or more of the following events shall constitute
an "Event of Default":
(a) if any portion of the Debt is not paid on or prior to the date the same is due or if the entire Debt is
not paid on or before the Maturity Date;
(b) if Borrower fails to repay any sum paid or advanced by Lender under the terms of this Security
Instrument or any Other Loan Document;
(c) if Borrower fails to repay any sum owed to Lender or its successor or assignee under the terms of
any other Security Instrument, promissory note or other loan document in connection with any other loan; provided that
such failure to repay shall constitute an Event of Default hereunder only if the person or entity to which payment is owed
under such other Security Instrument, promissory note or other loan document is the holder of the Note;
(d) if any of the Taxes or Other Charges is not paid when the same is due and payable except to the
extent sums sufficient to pay such Taxes and Other Charges have been deposited with Lender in accordance with the
terms of this Security Instrument;
(e) if the Policies are not kept in full force and effect, or if the Policies are not delivered to Lender as
provided herein;
(f) if Borrower violates or does not comply with any of the provisions of this Security Instrument or
any Other Loan Document;
(g) if any representation or warranty of Borrower, any Indemnitor or any person guaranteeing payment
of the Debt or any portion thereof or performance by Borrower of any of the terms of this Security Instrument (a
"Guarantor"), or any member, general partner, principal or beneficial owner of any of the foregoing, made herein or in
any guaranty, or in any certificate, report, financial statement or other instrument or document furnished to Lender shall
have been false or misleading in any material respect when made;
(h;- if (i) Borrower or any managing member or general partner of Borrower, or any Guarantor or
Indemnitor shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors ("Creditors Rights
Laws"), seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Borrower or any managing member or general partner of
Borrower, or any Guarantor or Indemnitor shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against Borrower or any managing member or general partner of Borrower or any Guarantor or
Indemnitor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a
period of sixty (60) days; or (iii) there shall be commenced against the Borrower or any managing member or general
partner of Borrower, or any Guarantor or Indemnitor any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry
of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within
sixty (60) days from the entry thereof; or (iv) the Borrower or any managing member or general partner of Borrower or
any Guarantor or Indemnitor shall take any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any managing member or
general partner of Borrower, or any Guarantor or Indemnitor shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due;
(i) if Borrower shall be in default beyond applicable notice and grace periods under any of er
16 3048817
mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property
whether it be superior or junior in lien to this Security Instrument;
0) if the Property becomes subject to any mechanic's, materialman's or other lien other than a lien for
any Taxes not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise)
for a period of thirty (30) days;
(k) if any federal or state tax lien is filed against Borrower, any member or general partner of
Borrower, any Guarantor, any Indemnitor or the Property and same is not discharged of record within thirty (30) days
after same is filed;
(1) if any default occurs under any guaranty or indemnity executed in connection herewith, and such
default continues after the expiration of applicable grace periods, if any; or
(m) if Borrower riles of record, without the prior written consent of Lender which Lender may grant or
withhold for any reason in its sole and absolute discretion, any notice limiting the maximum principal amount that may be
secured hereunder; or
(n) if Borrower sells, transfers (whether voluntary or by operation of law), pledges, hypothecates or
further encumbers all or any part of the Property or any interest therein or any interest in the Borrower (except as
otherwise expressly provided herein), or additionally assigns all or any part of the rents, income or profits arising
therefrom, in either case without the prior written consent of Lender, which may be withheld for any reason in Lender's
sole and absolute discretion; or
(o) if Borrower or any Guarantor or Indemnitor is dissolved, merges into another entity, or otherwise
terminates its existence (other than as specifically allowed pursuant to the terms hereof) or if the person(s) controlling
such entity shall take any action authorizing or leading to the same; or
(p) if for more than ten (10) days after notice from Lender, Borrower shall continue to be in default
under any other term, covenant or condition of the Note, this Security Instrument or the Other Security Documents in the
case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender
in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day
period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall
require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a
period in excess of sixty (60) days.
ARTICLE 9. - RIGHTS AND REMEDIES
Section 9.1. REMEDIES. Upon the occurrence of any Event of Default, to the extent permitted by applicable law,
Borrower agrees that Lender may take any action available at law, in equity, and as otherwise provided in this Security
Instrument, without notice or demand, as it deems advisable to protect and enforce its rights against Borrower in and to
the Property, including, but not limited to the following actions, each of which may be pursued concurrently or otherwise,
at such time and in such order as Lender may determine, in its sole discretion, without impairing or otherwise affecting
the other rights and remedies of Lender:
(a) declare the entire unpaid Debt to be immediately due and payable;
(b) institute proceedings, judicial or otherwise, for the complete foreclosure of this Security Instrument
under any applicable state or federal law in which case the Property or any interest therein may be sold for cash or upon
credit in one or more parcels or in several interests or portions and in any order or manner;
(c, with or without entry, to the extent permitted and pursuant to the procedures provided by applicable
state or federal law, institute proceedings for the partial foreclosure of this Security Instrument for the portion of the Debt
then due and payable, subject to the continuing lien and security interest of this Security Instrument for the balance of the
Debt not then due, unimpaired and without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof and all estate, claim, demand, right, title
and interest of Borrower therein and rights of redemption thereof, pursuant to power of sale or otherwise, at one or more
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3048817
sales, in one or more parcels, at such time and place, upon such terms and after such notice thereof as may
be required or permitted by law;
(e) institute an action, suit or proceeding in equity for the specific performance of any covenant,
condition or agreement contained herein, in the Note or in the Other Security Documents;
(f) recover judgment on the Note either before, during or after any proceedings for the enforcement of
this Security Instrument or the Other Security Documents;
(g) apply for the appointment of a receiver, trustee, liquidator or conservator of the Property, without
notice and without regard for the adequacy of the security for the Debt and without regard for the solvency of Borrower,
any Guarantor, Indemnitor or of any person, firm or other entity liable for the payment of the Debt;
(h) subject to any applicable state or federal law, the license granted to Borrower to collect and receive
rents hereunder shall automatically be revoked and Lender may enter into or upon the Property, either personally or by its
agents, nominees or attorneys and dispossess Borrower and its agents and servants therefrom, without liability for
trespass, damages or otherwise and exclude Borrower and its agents or servants wholly therefrom, and take possession of
all rent rolls, leases (including the form lease) and amendments and exhibits, subleases (including the form sublease) and
amendments and exhibits and rental and license agreements with the tenants, subtenants and licensees in possession of the
Property or any ?art or parts thereof; tenants', subtenants' and licensees' money deposits or other property (including,
without limitation, any letter of credit) given to secure tenants', subtenants' and licensees' obligations under leases,
subleases or licenses, together with a list of the foregoing; all lists pertaining to current rent and license fee arrears; any
and all architects' plans and specifications, licenses and permits, documents, books, records, accounts, surveys and
property which relate to the management, leasing, operation, occupancy, ownership, insurance, maintenance, or service of
or construction upon the Property and Borrower agrees to surrender possession thereof and of the Property to Lender
upon demand, and thereupon Lender may (i) use, operate, manage, control, insure, maintain, repair, restore and otherwise
deal with all and every part of the Property and conduct the business thereat; (ii) complete any construction on the
Property in such manner and form as Lender deems advisable; (iii) make alterations, additions, renewals, replacements
and improvemens to or on the Property; (iv) exercise all rights and powers of Borrower with respect to the Property,
whether in the name of Borrower or otherwise, including without limitation, the right to make, cancel, enforce or modify
Leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents of the Property and every part thereof;
(v) either require Borrower (A) to pay monthly in advance to Lender, or any receiver appointed to collect the Rents, the
fair and reasonable rental value for the use and occupation of such part of the Property as may be occupied by Borrower,
or (B) to vacate and surrender possession of the Property to Lender or to such receiver and, in default thereof, Borrower
may be evicted by summary proceedings or otherwise; and (vi) apply the receipts from the Property to the payment of the
Debt, in such order, priority and proportions as Lender shall deem appropriate in its sole discretion after deducting
therefrom all expenses (including reasonable attorneys' fees) incurred in connection with the aforesaid operations and all
amounts necessary to pay the Taxes, Other Charges, Insurance Premiums and other expenses in connection with the
Property, as well as just and reasonable compensation for the services of Lender, its counsel, agents and employees;
(i) exercise any and all rights and remedies granted to a secured party upon default under the Uniform
Commercial Coife, including, without limiting the generality of the foregoing: (i) the right to take possession of the
Personal Property or any part thereof, and to take such other measures as Lender may deem necessary for the care,
protection and preservation of the Personal Property, and (ii) request Borrower at its expense to assemble the Personal
Property and make it available to Lender at a convenient place acceptable to Lender. Any notice of sale, disposition or
other intended action by Lender with respect to the Personal Property sent to Borrower in accordance with the provisions
hereof at least five (5) days prior to such action, shall constitute commercially reasonable notice to Borrower;
0) apply any sums then deposited in the Escrow Fund and any other sums held in escrow or otherwise
by Lender in accordance with the terms of this Security Instrument or any Other Security Document to the payment of the
following items in any order in its sole discretion: (i) Taxes and Other Charges; (ii) Insurance Premiums; (iii) interest on
the unpaid principal balance of the Note; (iv) amortization of the unpaid principal balance of the Note; and (v) all other
sums payable pursuant to the Note, this Security Instrument and the Other Security Documents, including, without
limitation, advances made by Lender pursuant to the terms of this Security Instrument;
(k) surrender the Policies maintained pursuant hereto, collect the unearned Insurance Premiums and
apply such sums as a credit on the Debt in such priority and proportion as Lender in its discretion shall deem proper, and
in connection therewith, Borrower hereby appoints Lender as agent and attorney-in-fact (which is coupled with an interest
and is therefore irrevocable) for Borrower to collect such unearned Insurance Premiums;
V41
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(1) apply the undisbursed balance of any net proceeds deficiency deposit, together with interest
thereon, to the payment of the Debt in such order, priority and proportions as Lender shall deem to be appropriate in its
discretion; or
pursue such other remedies as Lender may have under applicable state or federal law.
(M)
In the event of a sale, by foreclosure, to the extent permitted by applicable law, power of sale, or otherwise,
of less than all of the Property, this Security Instrument shall continue as a lien and security interest on the retraining
portion of the Property unimpaired and without loss of priority. Notwithstanding the provisions of this Section to the
contrary, if any Event of Default shall occur, and the Lender elects to declare the entire unpaid Debt to be automatically
due and payable, such remedy may be pursued without any further notice, demand or other action by Lender.
Section 9.2. APPLICATION OF PROCEEDS. The purchase money, proceeds and avails of any disposition of the
Property, or any part thereof, or any other sums collected by Lender pursuant to the Note, this Security Instrument or the
other Security Documents, may be applied by Lender to the payment of the Debt in such priority and proportions as
Lender in its discretion shall deem proper and which are in accordance with applicable law or as shall be required by a
court of competent jurisdiction.
Section 9.3. RIGHT TO CURE DEFAULTS. Upon the occurrence of any Event of Default or if Borrower fails to
make any payment or to do any act as herein provided, Lender may, but without any obligation to do so and without
notice to or demand on Borrower and without releasing Borrower from any obligation hereunder, make or do the same in
such manner and to such extent as Lender may deem necessary to protect the security hereof. Lender is authorized to
enter upon the Property for such purposes, or appear in, defend, or bring any action or proceeding to protect its interest in
the Property or to foreclose this Security Instrument or collect the Debt. The cost and expense of any cure hereunder
(including reasonable attorneys fees to the extent permitted by law), with interest at the Default Rate (defined in the
Note), shall constitute a portion of the Debt and shall be due and payable to Lender upon demand. All costs and expenses
incurred by Lender in remedying any Event of Default or failed payment or act or in appearing in, defending, or bringing
any such action or proceeding shall bear interest at the Default Rate defined in the Note, for the period after notice from
Lender that such cost or expense was incurred to the date of payment to Lender. All such costs and expenses incurred by
Lender together with interest thereon calculated at the Default Rate shall be deemed to constitute a portion of the Debt
and be secured by this Security Instrument and the Other Security Documents and shall be immediately due and payable
upon demand by Lender therefor.
Section 9.4. ACTIONS AND PROCEEDINGS. At any time, Lender has the right to appear in and defend,
compromise or settle any action or proceeding brought with respect to the Property, and after the occurrence and during
the continuance of an Event of Default, to bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its discretion, decides should be brought to protect its interest in the Property.
Section 9.5. RECOVERY OF SUMS REQUIRED TO BE PAID. Lender shall have the right from time to time to
take action to recover any sum or sums which constitute a part of the Debt as the same become due, without regard to
whether or not the balance of the Debt shall be due, and without prejudice to the right of Lender thereafter to bring an
action of foreclosure, or any other action, for a default or defaults by Borrower existing at the time such earlier action was
commenced.
Section 9.6. EXAMINATION OF BOOKS AND RECORDS. Lender, its agents, accountants and attorneys shall
have the right upon prior written notice to Borrower (unless an Event of Default exists, in which case no notice shall be
required), to examine and audit, during reasonable business hours, the records, books, management and other papers of
Borrower and its affiliates or of any Guarantor or Indemnitor which pertain to their financial condition or the income,
expenses and operation of the Property, at the Property or at any office regularly maintained by Borrower, its affiliates or
any Guarantor or Indemnitor where the books and records are located. Lender and its agents shall have the right upon
notice to make copies and extracts from the foregoing records and other papers at no cost to Lender.
Section 9.7. OTHER RIGHTS. ETC.
(a) The failure of Lender to insist upon strict performance of any term hereof shall not be deemed to be
a waiver of any term of this Security Instrument. Borrower shall not be relieved of Borrowers obligations hereunder by
reason of (i) the failure of Lender to comply with any request of Borrower, any Guarantor or any Indemnitor to take any
action to foreclose this Security Instrument or otherwise enforce any of the provisions hereof or of the Note or the Other
Security Documents, (ii) the release, regardless of consideration, of the whole or any part of the Property, or of any
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19 3048817
person liable for the Debt or any portion thereof, or (iii) any agreement or stipulation by Lender extending
the time of payment, changing the rate of interest, or otherwise modifying or supplementing the terms of the Note, this
Security instrument or the Other Security Documents.
(b) It is agreed that the risk of loss or damage to the Property is on Borrower, and Lender shall have no
liability whatsoever for decline in value of the Property, for failure to maintain the Policies, or for failure to determine
whether insurance in force is adequate as to the amount of risks insured. Possession by Lender shall not be deemed an
election of judicial relief, if any such possession is requested or obtained, with respect to any Property or collateral not in
Lender's possession.
(c) Lender may resort for the payment of the Debt to any other security held by or guaranties given to
Lender in such order and manner as Lender, in its discretion, may elect. Lender may take action to recover the Debt, or
any portion thereof, or to enforce any covenant hereof without prejudice to the right of Lender thereafter to foreclose this
Security Instrument. The rights of Lender under this Security Instrument shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Lender shall be construed as an election to proceed
under any one provision herein to the exclusion of any other provision. Lender shall not be limited exclusively to the
rights and remedies herein stated but shall be entitled to every right and remedy now or hereafter afforded at law or in
equity.
Section 9.8. RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may release any portion of the
Property for such consideration as Lender may require without, as to the remainder of the Property, in any way impairing
or affecting the lien or priority of this Security Instrument, or improving the position of any subordinate lienholder with
respect thereto, except to the extent that the obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by assignment, pledge or otherwise any other
property in place thereof as Lender may require without being accountable for so doing to any other lienholder. This
Security Instrument shall continue as a lien and security interest in the remaining portion of the Property.
Section 9.9. VIOLATION OF LAWS. If the Property is not in compliance with Applicable Laws, Lender may
impose additional requirements upon Borrower in connection herewith including, without limitation, monetary reserves or
financial equivalents.
Section 9.10. RIGHT OF ENTRY. Lender and its agents shall have the right to enter and inspect the Property at all
reasonable times.
Section 9.11. SUBROGATION. If any or all of the proceeds of the Note have been used to extinguish, extend or
renew any indebtedness heretofore existing against the Property, then, to the extent of the funds so used, Lender shall be
subrogated to all of the rights, claims, liens, titles, and interests existing against the Property heretofore held by, or in
favor of, the holder of such indebtedness and such former rights, claims, liens, titles, and interests, if any, are not waived
but rather are continued in full force and effect in favor of Lender and are merged with the lien and security interest
created herein as cumulative security for the repayment of the Debt, the performance and discharge of Borrowers
obligations hereunder, under the Note and the Other Security Documents and the performance and discharge of the Other
Obligations.
ARTICLE 10. - ENVIRONMENTAL HAZARDS
Section 10.1. ENVIRONMENTAL DEFINITIONS. For the purpose of this Section, "Environmental Law" means
any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other
government directives or requirements, as well as common law, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply
to Borrower or the Property and relate to Hazardous Materials. "Environmental Liens" means all Liens and other
encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other
person or entity. "Environmental Report" means the written reports resulting from the environmental site assessments of
the Property delivered to Lender. "Hazardous Materials" shall mean petroleum and petroleum products and compounds
containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials;
polychlorinated biphenyls ("PCBs") and compounds containing them; lead and lead-based paint; asbestos or asbestos-
containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether
empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal,
state or local authority; any substance that requires special handling; and any other material or substance now or in the
future defined as a "hazardous substance," "hazardous material," "hazardous waste," "toxic substance," "toxic pollutant,"
6)
20 3048817
"contaminant," or "pollutant" within the meaning of any Environmental Law. "Release" of any Hazardous Materials
includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting,
pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.
Section 10.2. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except
those that are bosh (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits
are required), if any, and (ii) either (A) in amounts not in excess of that necessary to operate the Property or (B) fully
disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or
threatened (defined below) Release of Hazardous Materials in violation of any Environmental Law and which would
require remediation by a governmental authority in, on, under or from the Property except as described in the
Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as
described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with
permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e)
Borrower does not know of, and has not received, any written or oral notice or other communication from any person or
entity (including but not limited to a governmental entity) relating to Hazardous Materials in, on, under or from the
Property; and (1, Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to
environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower's files and
records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the
Property and/or to the environmental condition of the Property.
Section 10.3. ENVIRONMENTAL COVENANTS. Borrower covenants and agrees that so long as Borrower
owns, manages, is in possession of, or otherwise controls the operation of the Property: (a) all uses and operations on or
of the Property, whether by Borrower or any other person or entity, shall be in compliance with all Environmental Laws
and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the
Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in
compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii)
(A) in amounts not in excess of that necessary to operate the Property or (B) fully disclosed to and approved by Lender in
writing; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost
and expense, fully and expeditiously cooperate in all activities pursuant to this Section, including but not limited to
providing all relevant information and making knowledgeable persons available for interviews; (f) Borrower shall, at its
sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in
connection with the Property, pursuant to any reasonable written request of Lender, upon Lender's reasonable belief that
the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results
thereof, and Lender and other Indemnified Parties (hereinafter defined) shall be entitled to rely on such reports and other
results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to
(i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with
any Environmental Law; (h) Borrower shall not allow any tenant or other user of the Property to violate any
Environmental Law; and (i) Borrower shall immediately notify Lender in writing after it has become aware of (A) any
presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards the Property;
(B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential
Environmental Lien; (D) any required or proposed remediation of environmental conditions relating to the Property; or
(E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever
(including but not limited to a governmental entity) relating in any way to Hazardous Materials. Any failure of Borrower
to perform its obligations pursuant to this Section 10.3 shall constitute bad faith waste with respect to the Property.
Section 10.4. LENDER'S RIGHTS. Lender and any other person or entity designated by Lender, including but not
limited to any representative of a governmental entity, and any environmental consultant, and any receiver appointed by
any court of corrpetent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable
times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to
conducting any environmental assessment or audit at Borrowers expense (the scope of which shall be determined in
Lenders sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting
other invasive tzsting. Borrower shall cooperate with and provide access to Lender and any such person or entity
designated by Lender.
Section 10.5. OPERATIONS AND MAINTENANCE PROGRAMS. If recommended by the Environmental Report
or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations
and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared
by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos containing
material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the
21 3048817
generality of the preceding sentence. Lender may require (a) periodic notices or reports to Lender in form, substance and
at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address
changing circumstances, laws or other matters, (c) at Borrower's sole expense, supplemental examination of the Property
by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the
environmental condition of the Property and Borrowers compliance with any operations and maintenance program, and
(e) variation of the operations and maintenance program in response to the reports provided by any such consultants.
ARTICLE 11. - INDEMNIFICATION
Section I L L GENERAL INDEMNIFICATION. Borrower shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless the Indemnified Parties (defined below) from and against any and all Losses
(defined below) imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising
out of or in any way relating to any one or more of the following (a) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (b)any use, nonuse or condition in, on or about the Property
or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c)
performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any
part thereof; (d) any failure of the Property to be in compliance with any Applicable Laws; (e) any and all claims and
demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) Borrower's breach of
any term, covenEnt, condition, representation or warranty contained herein; or (g) the payment of any commission, charge
or brokerage fee to anyone which may be payable in connection with the funding of the Loan evidenced by the Note and
secured by this Security Instrument. Any amounts payable to Lender by reason of the application of this Section shall
become immediately due and payable and shall bear interest at the Default Rate from the date loss or damage is sustained
by Lender until paid. The term "Losses" shall mean any and all claims, suits, liabilities (including, without limitation,
strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees,
judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to attorneys' fees and
other costs of defense). The term "Indemnified Parties" shall mean (a) Lender, (b) any prior owner or holder of the Note,
(c) any servicer or prior servicer of the Loan, (d) any Investor (defined below) or any prior Investor in any Participations
(defined below), (e) any trustees, custodians or other fiduciaries who hold or who have held a full or partial interest in the
Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or
other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents,
servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the
heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any
successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties' assets and
business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Loan.
Section 11.2. MORTGAGE DOCUMENTARY STAMPS AND/OR INTANGIBLE TAX. Borrower shall, at its
sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any
and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising
out of or in any way relating to any tax or fee on the making and/or recording of this Security Instrument, the Note or any
of the Other Security Documents.
Section 11.3. DUTY TO DEFEND: ATTORNEYS' FEES AND OTHER FEES AND EXPENSES. Upon written
request by any Indemnified Party, Borrower shall defend such Indemnified Party (if requested by any Indemnified Party,
in the name of the Indemnified Party) by attorneys and other professionals approved by the Indemnified Parties.
Notwithstanding the foregoing, any Indemnified Parties may, in their sole discretion, engage their own attorneys and
other professionals to defend or assist them, and, at the option of Indemnified Parties, their attorneys shall control the
resolution of any claim or proceeding. Upon demand, Borrower shall pay or, in the sole discretion of the Indemnified
Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories, surveyors, title searches and other professionals in connection therewith, which
any Indemnified Parties may engage as a result of any Losses.
Section 11.4. ENVIRONMENTAL INDEMNITY. As between Borrower and Lender, all risk of loss associated
with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within,
contiguous to er otherwise affecting the Property, shall lie solely with Borrower. Accordingly, Borrower shall bear all
risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or
liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Lender or by
law. Borrower shall indemnify, defend and hold Lender harmless from and against all loss, liabilities, damages, claims,
costs and expenses (including reasonable costs of defense) arising out of or associated, in any way, with the non-
22 3048817
compliance with Environmental Laws, or the existence of Hazardous Materials in, on, or about the Property, or a breach
of any representation, warranty or covenant contained in Article 10 hereof, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint,
concurrent, or ccmparative negligence of Lender; however, Borrower shall not be liable under such indemnification to the
extent such loss, liability, damage, claim, cost or expense results solely from Lender's gross negligence or willful
misconduct. Borrowers obligations hereunder shall arise upon the discovery of the presence of any Hazardous Material,
whether or not any governmental authority has taken or threatened any action in connection with the presence of any
Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account
thereof is disclosed in any site assessment and shall continue notwithstanding the repayment of the Note or any transfer or
sale of any right, title and interest in the Property (by foreclosure, deed in lieu of foreclosure or otherwise). Of even date
herewith, Borrower and other persons or entities (collectively, Borrower and such other parties, the "Indemnitors") may as
circumstances require execute and deliver a certain environmental indemnity agreement in favor of the Lender
incorporating the environmental indemnities set forth herein as well as additional provisions and requirements with
respect to envircnmental matters (the "Environmental Indemnity"). In the event an Environmental Indemnity is executed,
it shall be included in the definition of "Other Security Documents".
ARTICLE 12. - WAIVERS
Section 12.1. WAIVER OF COUNTERCLAIM. Borrower hereby waives the right to assert a counterclaim, other
than a mandatory or compulsory counterclaim, in any action or proceeding brought against it by Lender arising out of or
in any way connected with this Security Instrument, the Note, any of the Other Security Documents, or the Obligations.
Section 12.2. MARSHALLING AND OTHER MATTERS. Borrower hereby waives, to the extent permitted by
law, the benefit of all appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in
force, the equity of redemption and any statutory right of redemption, and all rights of marshalling in the event of any sale
hereunder of the Property or any part thereof or any interest therein. Further, Borrower hereby expressly waives any and
all rights of redemption from sale under any order or decree of foreclosure of this Security Instrument on behalf of
Borrower, and on behalf of each and every person acquiring any interest in or tide to the Property subsequent to the date
of this Security Instrument and on behalf of all persons to the extent permitted by applicable state or federal law.
Section 12.3. WAIVER OF NOTICE. Borrower shall not be entitled to any notices of any nature whatsoever from
Lender except (a) with respect to matters for which this Security Instrument specifically and expressly provides for the
giving of notice by Lender to Borrower and (b) with respect to matters for which Lender is required by applicable state or
federal law to give notice, and Borrower hereby expressly waives the right to receive any notice from Lender with respect
to any matter for which this Security Instrument does not specifically and expressly provide for the giving of notice by
Lender to Borrower.
Section 12.4. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby expressly waives and releases to
the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or
performance of its Other Obligations.
Section 12.5. SOLE DISCRETION OF LENDER. Wherever pursuant to this Security Instrument (a) Lender
exercises any right given to it to approve or disapprove, (b) any arrangement or term is to be satisfactory to Lender, or (c)
any other decision or determination is to be made by Lender, the decision to approve or disapprove all decisions that
arrangements cr terms are satisfactory or not satisfactory, and all other decisions and determinations made by Lender,
shall be in the sole discretion of Lender, except as may be otherwise expressly and specifically provided herein.
Section 12.6. WAIVER OF FORECLOSURE DEFENSE. Borrower hereby waives any defense Borrower might
assert or have by reason of Lender's failure to make any tenant or lessee of the Property a party defendant in any
foreclosure proceeding or action instituted by Lender.
Section 12.7 WAIVER REGARDING FEES. The Borrower hereby expressly waives and releases, to the fullest
extent it may lrwfully do so, all benefit of any present or future moratorium law, the merger doctrine, and other present or
future law, regulation or judicial decision that may be necessary for Lender to protect and enforce its claims against
Borrower for or relating to the collection of the full amount of attorneys fees, costs, insurance premiums, taxes and other
similar advances and claims, whether arising or asserted prior to or subsequent to the entry of judgment by Lender
against Borrower.
ARTICLE 13. - NOTICES
23 30488]7
Section 13.1. NOTICES. All notices or other written communications hereunder shall be deemed to have been
properly given (a) upon delivery, if delivered in person with receipt acknowledged by the recipient thereof, (b) one (1)
Business Day (defined below) after having been deposited for overnight delivery with any reputable overnight courier
service, or (c) three (3) Business Days after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested,
addressed to Borrower or Lender, as the case may be, at the addresses set forth on the first page of this Security
Instrument or addressed as such party may from time to time designate by written notice to the other parties.
Either party by notice to the other may designate additional or different addresses for subsequent notices or
communications. For purposes of this Subsection, "Business Day" shall mean a day on which commercial banks are not
authorized or req.rired by law to close in New York, New York.
ARTICLE 14. - CHOICE OF LAW
Section 14.1. CHOICE OF LAW. This Security Instrument and any determination of deficiency judgments shall be
governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and
applicable federal law.
Section 14.2. PROVISIONS SUBJECT TO LAW. All rights, powers and remedies provided in this Security
Instrument may be exercised only to the extent that the exercise thereof does not violate any applicable state or federal
law and are intended to be limited to the extent necessary so that they will not render this Security Instrument invalid,
unenforceable or not entitled to be recorded, registered or filed under any applicable state or federal law.
ARTICLE 15. - SECONDARY MARKET
Section 15. 1. TRANSFER OF LOAN. Lender may, at any time, sell, transfer or assign the Note, this Security
Instrument and the Other Security Documents, and any or all servicing rights with respect thereto, or grant participations
therein (the "Participations") or issue mortgage passthrough certificates or other securities evidencing a beneficial interest
in a rated or unrated public offering or private placement (the "Securities"). Lender may forward to each purchaser,
transferee, assignee, servicer, participant, or investor in such Participations or Securities (collectively, the "Investor") or
any Rating Agency rating such Securities, each prospective Investor, and any organization maintaining databases on the
underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or
may hereafter acquire relating to the Debt and to Borrower, any Guarantor, any Indemnitor(s) and the Property, whether
furnished by Bo-rower, any Guarantor, any Indemnitor(s) or otherwise, as Lender determines necessary or desirable.
Borrower irrevocably waives any and all rights it may have under applicable state or federal law to prohibit such
disclosure, including but not limited to any right of privacy.
Section 15.2. COOPERATION. Borrower, any Guarantor and any Indemnitor agree to cooperate with Lender in
connection with any transfer made pursuant to this Section, including, without limitation, the delivery of an estoppel
certificate required pursuant to the terms hereof and such other documents as may be reasonably requested by Lender.
Borrower shall also furnish and Borrower, any Guarantor and any Indemnitor consent to Lender furnishing to such
Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the
Leases, the financial condition of Borrower, any Guarantor and any Indemnitor as may be requested by Lender, any
Investor or any prospective Investor or any Rating Agency in connection with any sale, transfer or Participations or
Securities.
ARTICLE 16. - COSTS
Section 16.1. PERFORMANCE AT BORROWER'S EXPENSE. Borrower acknowledges and confirms that Lender
shall impose certain administrative processing and/or commitment fees in connection with (a) the extension, renewal,
modification, arrendment and termination of the Loan, (b) the release or substitution of collateral therefor, (c) obtaining
certain consents, waivers and approvals with respect to the Property, or (d) the review of any Lease or proposed Lease or
the preparation or review of any subordination, non-disturbance agreement (the occurrence of any of the above shall be
called an "Event'). Borrower further acknowledges and confirms that it shall be responsible for the payment of all costs
of reappraisal of the Property or any part thereof, whether required by law, regulation, Lender or any governmental or
quasi-governmental authority. Borrower hereby acknowledges and agrees to pay, immediately, with or without demand,
all such fees (as the same may be increased or decreased from time to time), and any additional fees of a similar type or
nature which may be imposed by Lender from time to time, upon the occurrence of any Event or otherwise. Wherever it
is provided for h--rein that Borrower pay any costs and expenses, such costs and expenses shall include, but not be limited
24 3048817
to, all reasonable counsel fees of Lender.
Section 16.2. COUNSEL FEES FOR ENFORCEMENT. (a) Borrower shall pay all reasonable counsel fees
incurred by Lender in connection with (i) the preparation of the Note, this Security Instrument and the Other Security
Documents; and (ii) the items set forth in this Article, and (b) Borrower shall pay to Lender on demand any and all
expenses, includ_ng legal fees incurred or paid by Lender in protecting its interest in the Property or in collecting any
amount payable under the Note, this Security Instrument or the Other Security Documents, or in enforcing its rights
hereunder with respect to the Property, whether or not any legal proceeding is commenced hereunder or thereunder,
together with interest thereon at the Default Rate from the date paid or incurred by Lender until such expenses are paid by
Borrower.
ARTICLE 17. - DEFINITIONS
Section 17.1. GENERAL DEFINITIONS. Unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used in this Security Instrument may be used interchangeably in singular or plural
form and the word "Borrower" shall mean "each Borrower and any subsequent owner or owners of the Property or any
part thereof or any interest therein; the word "Lender" shall mean "Lender and any subsequent holder of the Note," the
word "Note" shall mean "the Note and any other evidence of indebtedness secured by this Security Instrument," the word
"person" shall include an individual, corporation, limited liability company, partnership, trust, unincorporated association,
government, governmental authority, and any other entity, the word "Property" shall include any portion of the Property
and any interest therein, and the phrases "counsel fees" shall include any and all attorneys", paralegal and law clerk fees
and disbursements, including, but not limited to fees and disbursements at the pre-trial, trial and appellate levels incurred
or paid by Lender in protecting its interest in the Property, the Leases and the Rents and enforcing its rights hereunder,
whether with respect to retained firms, the reimbursement for the expenses of in-house staff or otherwise.
Section 17.2. HEADINGS ETC. The headings and captions of various Articles and Sections of this Security
Instrument are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope
or intent of the Frovisions hereof.
ARTICLE 18. - MISCELLANEOUS PROVISIONS
Section 18.1. NO ORAL CHANGE. This Security Instrument, and any provisions hereof, may not be modified,
amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is sought.
Section 18.2. LIABILITY. If Borrower consists of more than one person, the obligations and liabilities of each such
person hereunder shall be joint and several. This Security Instrument shall be binding upon and inure to the benefit of
Borrower and Lender and their respective successors, assigns, heirs, personal representatives, executors and
administrators forever.
Section 18.3. INAPPLICABLE PROVISIONS. If any term, covenant or condition of the Note or this Security
Instrument is held to be invalid, illegal or unenforceable in any respect, the Note and this Security Instrument shall be
construed without such provision.
Section 18.4. DUPLICATE ORIGINALS: COUNTERPARTS. This Security Instrument may be executed in any
number of duplicate originals and each duplicate original shall be deemed to be an original. This Security Instrument
may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of
which together shall constitute a single Security Instrument. The failure of any party hereto to execute this Security
Instrument, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.
Section 18.5. NUMBER AND GENDER. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include
the plural and vice versa.
Section 18.6. LEGAL DESCRIPTION. Borrower represents to Lender that it has reviewed and delivered to Lender
a copy of the legal description set forth in Exhibit "A"; that such legal description is the accurate and proper legal
description of the Land; and Borrower further acknowledges that neither Lender nor Lender's counsel prepared or
reviewed such legal description. Borrower shall indemnify, defend and hold Lender harmless from and against any and
SG
25 3048817
all losses, liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs or disbursements
of any kind or nature whatsoever, including the reasonable fees and actual expenses of Lender's counsel, in connection
with any claim that title to the Property is impaired due to or based upon an inaccurate or improper legal description set
forth herein.
Section 18.7. INCONSISTENCIES. In the event of any inconsistencies between the terms and conditions of this
Article and the other provisions of this Security Instrument, the terms and conditions of this Article shall control and be
binding.
Section 18.8. WAIVER OF TRIAL BY JURY. BORROWER BY ACCEPTANCE OF THIS SECURITY
INSTRUMENT, HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE APPLICATION FOR THE LOAN,
THE NOTE, THIS SECURITY INSTRUMENT OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR
OMISSIONS OF LENDER OR BORROWER.
[NO FURTHER TEXT - SIGNATURES APPEAR ON NEXT PAGE]
THIS INSTRUMENT INCLUDES A RIDER, THE TERMS OF WHICH ARE ATTACHED HERETO AND BY
THIS REFERENCE MADE A PART HEREOF
26 3048817
IN WITNESS WHEREOF, this Security Instrument has been executed by borrower the day and year first
above written.
Print Name:
Borrower:
Samuel D Chandler
This Instrument prepared by: Antonio Chimienti, Esq.
Upon recording return to. Bayview Lending Group, LLC
Attn: Title Processing Department
4425 Ponce de Leon Blvd., 4th Floor
Coral Gables, FL 33146
0-9?
27 3048817
Signed, sealed and delivered
in the presence of:
ACKNOWLEDGMENT
COMMONWEALTH OF )
PENNSYLVANIA ss.:
COUNTY OF )
cj-"' foe k
The foregoing instrument was acknowledged before me on June 12, X008 by Samuel D Chandler.
He/she is personally known to me or produced d'i o v-,-5 L, r ?AaR as
identification, and did/did not take an oath.
[Official Notary Seal]
COMMONWEALTH OF PENNSYLVANIA
Notarial Seat
Lisa A. Seay. Notary Public
M of Fiartbur9. ty 24ZOry 1
My C nnissiai ores
Member. Pennsylvania Association of Notaries
Notary Public,`Comnionwealth-of Pennsylvania
Print or'lype Name:
My Co mission-Expires:
28
3048817
EXHIBIT A - LEGAL DESCRIPTION
Tax ID Number(s): 12-22-0824-289
Land situated in the Borough of Lemoyne in the County of Cumberland in the State of
PA.
All that certain lot of land situate in the Borough of Lemoyne, Cumberland
County, Pennsylvania, more particularly bounded and described as follows to wit:
Bounded on the South by a 15 feet wide alley, said alley being adjacent to and
parallel with the Northern line of land of the Philadelphia, Barrisburg and
Pittsburgh Railroad Company, now the Philadelphia and Reading Railway
Company; on the East side by Blackberry Alley and on the North by Peach Alley,
and extends along said 15 feet wide alley 375 feet, more or less, along Blackberry
Alley, 112 112 feet, more or less, and along Peach Alley, 3,50 feet, more or less, as
more fully set forth and designated in the plot of the Borough of Lemoyne
(MacDonald and Roberts, Engineers) recorded in Plan Book 1, Page 59.
Commonly known as: 231 South 8Th Street, Lemoyne, PA 17043
Page 6 of 9
RIDER TO MORTGAGE AND SECURITY AGREEMENT
{ PENNSYLVANIA)
THIS RIDER is made June 12, 2008, and is incorporated into and shall be deemed to amend and
supplement the Mortgage and Security Agreement (the "Security Instrument") of the same date
hereof, given by Samuel D Chandler (the "Borrower") to secure that certain Promissory Note in the
amount of One Hundred Eighty-Nine Thousand and No/100 Dollars ($189,000.00) (the "Note")
given to Silver Hill Financial, LLC, a Delaware Limited Liability Company, (the "Lender"), on the
same date hereof and covering the Property described in the Security Instrument and located at 231
South 8th Street, Lemoyne, PA 17043 (the "Property Address").
In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender
further covenant and agree as follows:
The Security Instrument is also known as an Open End Mortgage and Security Agreement.
2. Section 9.12 CONFESSION OF JUDGMENT IN EJECTMENT is added to the Security
Instrument and reads as follows: BORROWER HEREBY IRREVOCABLY AUTHORIZES
AND EMPOWERS THE PROTHONOTARY, CLERK OR ANY ATTORNEY OF ANY
COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA OR
ELSEWHERE, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST BORROWER, AS WELL AS AGAINST ALL
PERSONS CLAIMING UNDER, BY OR THROUGH BORROWER, AND IN FAVOR OF
LENDER, ITS SUCCESSORS OR ASSIGNS, AS OF ANY TERM, PAST, PRESENT OR
FUTURE, WITH OR WITHOUT DECLARATION, FOR POSSESSION, CONTROL OR
BOTH OF THE PREMISES, IMPROVEMENTS AND BUILDING EQUIPMENT, WITHOUT
THE NECESSITY OF FILING ANY BOND AND WITHOUT ANY STAY OF EXECUTION
OR APPEAL. THIS INSTRUMENT, OR A COPY HEREOF VERIFIED BY AFFIDAVIT,
SHALL BE SUFFICIENT WARRANT THEREFOR; WHEREUPON, APPROPRIATE
PROCESS TO OBTAIN POSSESSION, CONTROL OR BOTH OF THE PREMISES,
IMPROVEMENTS AND BUILDING EQUIPMENT, INCLUDING LEVY AND EXECUTION,
MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING
WHATSOEVER. BORROWER HEREBY RELEASES AND AGREES TO RELEASE
LENDER AND SAID ATTORNEYS FROM ALL PROCEDURAL ERRORS AND DEFECTS
WHATSOEVER IN ENTERING SUCH JUDGMENT OR JUDGMENTS OR IN CAUSING
SUCH WRITS OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON OR
CONCERNING THE SAME, PROVIDED THAT LENDER SHALL HAVE FILED IN SUCH
ACTION OR ACTIONS AN AFFIDAVIT OR AFFIDAVITS MADE BY SOMEONE ON
LENDER'S BEHALF SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE
ENTRY OF SUCH JUDGMENT OR JUDGMENTS ACCORDING TO THE TERMS OF THIS
INSTRUMENT, OF WHICH FACTS SUCH AFFIDAVIT OR AFFIDAVITS SHALL BE
PRIMA FACIE EVIDENCE. IT IS HEREBY EXPRESSLY AGREED THAT IF FOR ANY
REASON AFTER ANY SUCH ACTION OR ACTIONS HAVE BEEN COMMENCED THE
SAME SHALL BE DISCONTINUED, MARKED SATISFIED OF RECORD OR BE
TERMINATED, OR POSSESSION OF THE PREMISES, IMPROVEMENTS OR BUILDING
EQUIPMENT REMAINS IN OR IS RESTORED TO BORROWER OR ANYONE CLAIMING
UNDER, BY OR THROUGH BORROWER, LENDER MAY, WHENEVER AND AS OFTEN
AS LENDER SHALL HAVE THE RIGHT TO AGAIN TAKE POSSESSION OF THE
PREMISES, IMPROVEMENTS AND BUILDING EQUIPMENT, BRING ONE OR MORE
3048817
FURTHER CONFESSIONS IN THE MANNER SET FORTH HEREIN TO RECOVER
POSSESSION OF THE PREMISES, IMPROVEMENTS AND BUILDING EQUIPMENT. THE
AUTHORITY AND POWER ABOVE GIVEN SHALL CONTINUE FROM TIME TO TIME
AND AT ALL TIMES UNTIL FINAL PAYMENT IN FULL OF ALL SECURED
INDEBTEDNESS.
3. Article 19 Special Pennsylvania Provisions is added to the Security Instrument and reads as
follows:
FUTURE ADVANCES: The Security Instrument secures such future or additional advances (in
addition to the principal amount of the Note) as may be made by Lender or the holder hereof, at
its exclusive option, to Borrower or its successors or assigns in title, for any purpose, provided
that all such advances are made within 20 years from the date of the Security Instrument or within
such lesser period of time as may be provided by law as a prerequisite for the sufficiency of
actual notice or record notice of such optional future or additional advances as against the rights
of creditors or subsequent purchasers for valuable consideration to the same extent as if such
future or additional advances were made on the date of the execution of the Security Instrument.
The total amount of indebtedness secured by the Security Instrument may be increased or
decreased from time to time, but the total unpaid balance so secured at any one time shall not
exceed a maximum principal amount equal to two times the amount first set forth in the Security
Instrument, plus interest thereon and any disbursements made under the Security Instrument for
the payment of impositions, taxes, assessments, levies, insurance, or otherwise with interest on
such disbursements. It is the intent of the parties that the Security Instrument shall secure the
payment of the Note and any additional advances made from time to time pursuant to any
additional promissory notes or otherwise contemplated under the Loan Documents, all of said
indebtedness being equally secured hereby and having the same priority as any amounts advanced
as of the date of the Security Instrument. It is agreed that any additional sum or sums advanced by
Lender shall be equally secured with, and have the same priority as, the original indebtedness
evidenced by the Note and shall be subject to all of the terms, provisions and conditions of the
Security Instrument, whether or not such additional loans or advances are evidenced by other
promissory notes of Borrower and whether or not identified by a recital that it or they are secured
by the Security Instrument. It is further agreed that any additional promissory note or promissory
notes executed and delivered pursuant to this paragraph shall automatically be deemed to be
included in the term "Note" wherever it appears in the context of the Security Instrument.
2 3048817
BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained
in this Rider to Pennsylvania Mortgage and Security Agreement and agrees that the terms hereof are
hereby incorporated into and with the terms of the Security Instrument as if both the Security
Instrument and this instrument are one and the same document. Nothing contained herein shall
invalidate or change any terms of the Security Instrument except to the extent as maybe explicitly set
forth herein.
Signed, sealed and delivered
in the presence of.,
?L
Print Name: ?xs
Samuel D Chandler
Print Name:
This Instrument prepared by: Antonio Chimienti, Esq.
Upon recording return to: Bayview Lending Group, LLC
Attn: Title Processing Department
4425 Ponce de Leon Blvd., 4th Floor
Coral Gables, FL 33146
CERTIFICATE OF RESIDENCE
I hereby certify that the precise residence of the Mortgagee
is 895 SW 30 Ave, Suite 103, Pompano Beach, Florida 33069.
Witness the due execution hereof.
By/For Mortgagee
Borrower:
3 3048817
ACKNOWLEDGMENT
COMMONWEALTH OF )
PENNSYLVANIA ss.:
COUNTY OF )
Sl.? M 5.-?t??
The foregoing instrument was acknowledged befor me on June 12, 2008 by Samuel D Chandler.
He/she is personally known to me or produced "-v" y"'- as
identification, and did/did not take an oath.
[Official Notary Seal]
NSYLVANiA
COMMONWEA?? F PEN
Usa A. Seay, Nnb-ry 10*
Daupw county
cnv Of Forlic 24 zoo
Me ?? en? ? aE? ahon of Notaries
Notary Publinr-1M6nwealth-of Pennsylvania
Print or Ty a Name: Li3Q ,/? S-eG
My Co ssio Expifei: ,242gf ?
4
3048817
Exhibit "Cr
EXHIBIT "A"
LEGAL DESCRIPTION
LAND SITUATED IN THE BOROUGH OF LEMOYNE IN THE COUNTY OF CUMBERLAND IN
THE STATE OF PA
ALL THAT CERTAIN LOT OF LAND SITUATE IN THE BOROUGH OF LEMOYNE, CUMBERLAND
COUNTY, PENNSYLVANIA, MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS
TO WIT:
BOUNDED ON THE SOUTH BY A 15 FEET WIDE ALLEY, SAID ALLEY BEING ADJACENT TO
AND PARALLEL WITH THE NORTHERN LINE OF LAND OF THE PHILADELPHIA, BARRISBURG
AND PITTSBURGH RAILROAD COMPANY, NOW THE PHILADELPHIA AND READING RAILWAY
COMPANY; ON THE EAST SIDE BY BLACKBERRY ALLEY AND ON THE NORTH BY PEACH
ALLEY, AND EXTENDS ALONG SAID 15 FEET WIDE ALLEY 375 FEET, MORE OR LESS,
ALONG BLACKBERRY ALLEY, 112 1/2 FEET, MORE OR LESS, AND ALONG PEACH ALLEY,
350 FEET, MORE OR LESS, AS MORE FULLY SET FORTH AND DESIGNATED IN THE PLOT
OF THE BOROUGH OF LEMOYNE (MACDONALD AND ROBERTS, ENGINEERS) RECORDED
IN PLAN BCOK 1, PAGE 59.
Exhibit "D"
NOTICE REQUIRED BY THE FAIR DEBT GOLLEGTION PRACTICES ACT,
_ .. ?.._= - -. t . (the Act) 15 U.S.C. SECTION 1692 AS AMENDED
1- The lawfirm may be deemed a debt collector' underthe Fair Debt Collection Practices Act
Any and all informafon obtained during the prosecution of this lawsuit may be used for the
purpose of collecting a debt
Z The amount of the debt is stated in the attached letter, or Complaint-
3- The Plaintiff named in the attached letter or complaint is the creditor to whom the debt is
owed, or is the servicing agent for the creditor to whom the debt is owed- The undersigned
attorney represents the interests of the Plaintiff.
4- The debt described in the letter or complaint will be assumed to be valid by the creditor's
law firm unless the debtor, within thirty (30) days after the receipt of this notice, disputes in
writing the validity of the- debt or some portion thereof-
5- If the debtor notifies the creditoi's law firm in writing within thirty (30) days of the receipt of
this notice that the debt or any portion thereof is disputed, the creditor's law firm will obtain
a verification of the debt and a copy of the verification will be mailed to the debtor by the
creditor's law firm-
if the creditor named as Plaintiff in the attached letter or complaint is not the original
creditor, and if the debtor makes a written request to the creditor's law firm within the thirty
(30) days from the receipt of this notice, the name and address of the original creditor will
be mailed to the debtor by the creditor's law firm-
7_ FEDERAL LAW GIVES YOU THIRTY (30) DAYS AFTER YOU RECEIVE THIS NOTICE
TO DISPUTE THE VALIDITY OF THE DEBT OR.ANY PART OF IT- THE LAW DOES
NOT REQUIRE THAT WE WAIT UNTIL THE END OF THE THIRTY-DAY PERIOD TO
CONTINUE WITH THE SUBJECT LEGAL ACTION- IF, HOWEVER, YOU REQUEST
PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR
WITHIN THE THIRTY-DAY PERIOD THAT BEGINS WITH YOUR RECEIPT OF THIS
LETTER, THE LAW REQUIRES THAT WE SUSPEND OUR EFFORTS (THROUGH
LITIGATION OR OTHERWISE) TO COLLECT THE MORTGAGE AND NOTE,
INCLUDING SEEKiNGA DEFAULT IN THE FORECLOSURE SUIT FORYOUR FAILURE
TO RESPOND TO THE ATTACHED COMPLAINTIMTHiN THETIME REQUIRED UNDER
THE SUMMONS, UNTIL WE MAIL THE REQUESTED-INFORMATION TO YOU. IF YOU
REQUEST VALIDATION OF THE DEBT, AS STATED HEREIN, YOU ARE UNDER NO
OBLIGATION TO RESPOND TO THE SUMMONS AND COMPLAINT UNTIL WE
RESPOND WITH THE REQUESTED INFORMATION
8. Written requests should addressed to Law Offices of Mattleman, Weinroth & Miller, 401
Route 70 East, Suite 100, Cherry Hill, NJ 08034, Attn: Foreclosure Department-
9- This is attempt to collect a debt, and any information obtained rrwli be used for that purpose.
However, if you have previously received a discharge in Bankruptcy, this correspondence
is not and should not be construed as an attempt to collect a debt, but only enforcement
of a lien against your property-
OF THE Fr,
05, Ji!- 3 { Fs" !: '- ,
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No.: 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
Attorneys for Plaintiff
Our File No.: 902.75298
IB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 2009-4201
CERTIFICATION OF SERVICE
I hereby certify that on the 7th day of August, 2009 I have served a true and correct copy:4
AComplaint in Mortgage Foreclosure on all parties named herein at their last known address or upon
attorney of record by regular and certified mail, postage prepaid, to the addresses listed below.
Samuel D. Chandler
231 South 8th Street
Lemoyne, PA 17043
MA'
BY:
in S. Weisberg, Esquire
Attorney for Plaintiff /
'the
FILED-C ,
OF THE Per' ?t ? ?njt?Y
2009 SEP 22 PIN 12: E, b
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No.: 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
Attorneys for Plaintiff
Our File No.: 902.75298
IB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
TO THE PROTHONOTARY:
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 2009-4201
PRAECIPE TO ENTER
DEFAULT JUDGMENT
Kindly enter Default Judgment in favor of Plaintiff, M Property Holdings LLC, a De
LLC, and against the Defendants, Samuel D. Chandler, for failure to Answer the Complaint in
Action Mortgage Foreclosure.
I hereby certify that notice has been given in accordance with Rule 237.1, a copy of which
attached hereto.
Assess Damages as follows:
Principal Balance: $187,507.70
8.50 % interest from March 1, 2009 $8,721.19
through September 14, 2009 at $44.27 per day
10.00 % interest from April 6, 2009 $8,386.49
through September 14, 2009 at $52.09 per day
Prepayment Consideration $9,375.39
at 5.00% of Unpaid Principal Balance
Lockout from June 10, 2009 through $64,815.16
June 12, 2013 at $44.27 per day
Late Charges from April 1, 2009 $1,076.46
through September 14, 2009 at $179.41 per month
Property Inspection, BPO $2,700.00
Taxes $2,250.85
Attorney's Fees and Costs $11,557.89
Total Amount of Judgment $296,391.13
MA
BATTORNEY I.D. NO.: 51520
DEFAULT JUDGMENT ENTERED AS INDICATED ABOVE:
DATE: o2?p ?I PRO PROTHY:
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No. 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
File No.: 902.75298
TO: Samuel D. Chandler
231 South 8th Street
Lemoyne, PA 17043
Date of Notice: August 31, 2009
iB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVF
CORAL GABLES, FL 33146
PLAINTIFF
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 2009-4201
VS.
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
NOTICE, RULE 237.1
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPE NCE
PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSE'S OR
OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM
THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HB G
AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LA R, GO
TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSON AT A
REDUCED FEE OR NO FEE.
LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVE
CARLISLE, PA 17013
717-249-3166 If
"
ATTORNEY I.D. NO. 51520
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No.: 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
Attorneys for Plaintiff
Our File No.: 902.75298
IB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
vs.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
TO: Samuel D. Chandler
231 South 8th Street
Lemoyne, PA 17043
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 2009-4201
NOTICE PURSUANT TO
RULE 236
NOTICE
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a J
been entered against you in the above proceeding as indicated below.
Prothonotary
MORTGAGE FORECLOSURE JUDGMENT BY DEFAULT
IF YOU HAVE ANY QUESTION CONCERNING THIS NOTICE, PLEASE CALL:
has
MARTIN S. WEISBERG, ESQUIRE #51520
MATTLEMAN, WEINROTH & MILLER
(856) 429-5507
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No.: 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
Attorneys for Plaintiff
Our File No.: 902.75298
IB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
STATE OF NEW JERSEY
SS
COUNTY OF CAMDEN
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 2009-4201
AFFIDAVIT OF
NON-MILITARY SERVICE
I, Martin S. Weisberg, Esquire, Attorney at Law, being duly sworn according to law, upon m oath,
depose and say:
1. That the Defendant(s) is not in the Military Services of the United States of America or any
other Country within the provision ofthe Soldiers' and Sailors' Civil Relief Act of Congress,
as amended; and
2. That the Defendant(s) is at least 21 years of age and his/her their last known residence is:
(a). Samuel D. Chandler - 231 South 8th Street, Lemoyne, PA 17043.
The Affidant has ascertained the foregoing information by personal inquiry and knowledge and
makes this Affidavit with the authority.
Sworn and Subscribed to
before me this /?M day
of /y66?2 , 2009.
DIANA HEWITT
Notary Public
State of New Jersey
My Commission Expires Sept. 30, 2013
MA'
MAMTIN 9. WKSBERG, E;
ATTORNEY I.D. NO.: 5152
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No.: 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
Attorneys for Plaintiff
Our File No.: 902.75298
IB PROPERTY HOLDINGS LLC, A
DELAWARE LLC
4425 PONCE DE LEON BLVD
CORAL GABLES, FL 33146
VS.
PLAINTIFF
SAMUEL D. CHANDLER
231 SOUTH 8TH STREET
LEMOYNE, PA 17043
DEFENDANT(S)
STATE OF NEW JERSEY
COUNTY OF CAMDEN
SS
COURT OF COMMON PLEAS
CIVIL DIVISION
CUMBERLAND COUNTY
DOCKET NO. 2009-4201
AFFIDAVIT OF ADDRESS
I, Martin S. Weisberg, Esquire, being duly sworn according to law, upon my oath, depose and say:
1. I certify that the Plaintiffs address is 4425 Ponce de Leon Blvd, Coral Gables, FL 3146
2. 1 certify that the last known address for Defendant Samuel D. Chandler is 231 South 8th
Street, Lemoyne, PA 17043.
3. I certify that the foregoing information is true and correct to the best of my
information and belief.
Sworn and Subscribed to
be?f4re?jme this /h day
of '?-` /!? t , 2009.(
DIANA HEWITT
Notary Public
State of New Jersey
My Commission Expires Sept. 30, 2013
MA
MARTIN S. VTSBERG, ESi
ATTORNEY I.D. NO.: 51520
?1LED s 'S {'?
THE P ;ETA, Y
2009 SLP 22 PH 12: 1, 1
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MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No. 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
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-~~~~`S~'L~~~~I~File No.:902-75298
IB PROPERTY HOLDING, LLC A DELAWARE
LIMITED LIABILITY COMPANY
4425 PONCE DE LEON BLVD.
CORAL GABLES FL 33146
PLAINTIFF
vs.
SAMUEL D. CHANDLER
231 SOUTH 8T" STREET
LEMOYNE PA 33146
DEFENDANTS
COURT (~N GUMMUIV
CUMBERLAND COUNTY
DOCKET#: 2009-4201
PRAECIPE TO WITHDRAW
DEFAULT JUDGMENT
MORTGAGE FORECLOSURE
TO THE PROTHONOTARY:
Kindly withdrew Default Judgment entered September 22, 2009 from the docket as
Praecipe to Settle, Discontinue and End Without Prejudice has been sent for filing with the Court.
Dated: 7-L ~~~~`
MATTLEMAN, WEINFj~JTH
. /?,
i~ `~'~
BY: ~ ~
MARTIN S. ISBERG, E
Attorney for Plaintiff
& MILLER
IRE
$8.0o PA A~
C~ (88x.80
R~ a~t~i~
MATTLEMAN, WEINROTH & MILLER
BY: MARTIN S. WEISBERG, ESQUIRE
Attorney I.D. No. 51520
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
(856) 429-5507
File No.:902-75298
IB PROPERTY HOLDING, LLC A DELAWARE
LIMITED LIABILITY COMPANY
4425 PONCE DE LEON BLVD.
CORAL GABLES FL 33146
PLAINTIFF
vs.
SAMUEL D. CHANDLER
231 SOUTH 8T" STREET
LEMOYNE PA 33146
DEFENDANTS
COURT OF COMMON
CUMBERLAND COUNTY
DOCKET#: 2009-4201
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IPE
TO THE PROTHONOTARY:
DISCONTINUE AND END WITHOUT PREJUDI~E o
FORECLOSURE ACTION
Kindly settle, discontinue and end without prejudice the above-referenced foreclosure
action.
Dated: ~~- I ~S-2.c> ~ o BY:
MATTLE~l1ll N, WEINROTH & ILLER
7
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MARTIN SB RG, E QUIRE
Attorney for Plaintiff
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