**Exhibit 10.42**

 

Ihereby certify that the address of the

Mortgageestated below is correct.

 
| /s/James  R. Lagasse                 |   |
|--------------------------------------|--------|
| James  R. Lagasse, Vice President of |
| NewAlliance  Bank                    |

 

**MORTGAGE AND SECURITY AGREEMENT**

 

TOALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREETINGS:

 

KNOW YE, THAT **RIVERBEND CROSSINGS IIIHOLDINGS LLC**, a Pennsylvania limited liability company, having aprincipal office and mailing address at c/o Griffin Land & Nurseries, Inc.,204 West Newberry Road, Bloomfield, Connecticut 06002 (hereinafter called the “**Grantor**”), for the consideration of Ten ($10.00) dollars andother good and valuable consideration received to the full satisfaction of **NEWALLIANCE BANK**, a Connecticut banking corporation havingan office at 195 Church Street, New Haven, Connecticut 06510 (hereinaftercalled the “**Grantee**”), DOES HEREBY GRANT,CONVEY, TRANSFER AND ASSIGN TO Grantee, its successors and assigns, forever thefollowing property, interests and rights (collectively, the “**Mortgaged****Property**”):

 

Thatcertain piece or parcel of land, with any buildings and improvements now orhereafter placed thereon, known as 871 Nestle Way and being in the Town ofBreinigsville, County of Lehigh, and Commonwealth of Pennsylvania, and moreparticularly bounded and described in **Schedule A**annexed hereto and made a part hereof (collectively, the “**Premises**”).

 

Allthe right, title and interest of the Grantor, now or hereafter acquired, in orto the land lying in the bed of any street, road or avenue, opened or proposed,and any and all sidewalks, plazas, alleys, strips and gores, in front of,adjoining or adjacent to said Premises; and any and all privileges, tenements,hereditaments, licenses, easements, rights, royalties, mineral, oil and gasrights, rents, issues and profits, water, water rights, and appurtenances,reversions and remainders belonging or in any way appertaining to the Premises.

 

Allright, title and interest of the Grantor in or to any and all buildings,improvements, structures, equipment, machinery, apparatus, appliances, fittings,fixtures, chattels, building materials, supplies, and other property stored ator delivered to the Premises, and articles of personal property of every kindand nature whatsoever, now or hereafter located in, upon or about the Premises,or any part thereof, and used or usable in connection with any present orfuture occupancy or operation of the Premises„ and all renewals andreplacements thereof and additions and accessions thereto, whether or not thesame are or shall be attached to the Premises in any manner (hereinaftercollectively called the “**Service Equipment**”).Service Equipment shall be deemed to include, without limitation, all heating,lighting, laundry, incinerating and power equipment, engines, pipes, pumps,tanks, motors, dynamos, boilers, fuel, conduits, switchboards, plumbing,lifting, cleaning, refrigerating, ventilating, and communications apparatus,sprinkler systems and other fire prevention and fire extinguishing apparatus,air cooling and air conditioning apparatus, elevators, escalators, shades,blinds, awnings, screens, storm doors, and windows, refrigerators,refrigerating plants, wall cabinets, attached cabinets, partitions, ducts andcompressors, pumps, filters, hoses, gas and electric equipment and fixtures,ranges, stoves, disposals, washing machines, dryers, furniture, furnishings,tables, chairs, carpets and rugs, and all right, title and interest of theGrantor in and to any Service Equipment which may be subject to any securityagreement, conditional bill of sale, or chattel mortgage superior to the rightsof the Grantee under this Mortgage and Security Agreement (the “**Mortgage**”), and the Grantor agrees toexecute and deliver, from time to time, such further documents and instrumentsas may be requested by the Grantee to confirm, preserve, and

 

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enforce the lien of thisMortgage as to the Service Equipment; and all the proceeds and products of any/andall Service Equipment, including, but not limited to, any deposits or paymentsnow or hereafter made thereon.

 

Anyand all unearned premiums, accrued, accruing or to accrue under any insurancepolicy or policies now or hereafter obtained by Grantor and all proceedspayable by reason of the conversion, voluntary or involuntary, of the MortgagedProperty, the improvements and/or any other property or rights encumbered orconveyed hereby, or any part thereof, into cash or liquidated claims.

 

Anyand all awards or payments, including interest thereon, and the right toreceive the same, which may be made with respect to the Mortgaged Property as aresult of the exercise of the right of eminent domain, the alteration of thegrade of any street, or any other injury to or decrease in the value of theMortgaged Property, to the extent of all amounts which may be secured by this Mortgageat the date of receipt of any such award or payment by the Grantee, and of thereasonable attorneys’ fees, costs and disbursements incurred by the Grantee inconnection with the collection of such award or payment, and the Grantor agreesto execute and deliver, from time to time, such further instruments as may berequested by the Grantee to confirm such assignment to the Grantor of any suchaward or payment.

 

Anyand all further estate, right, title, interest, property, claim and demandwhatsoever, either in law or in equity, of the Grantor, in or to any of theabove.

 

TOHAVE AND TO HOLD the above granted and bargained Mortgaged Property, with theprivileges and appurtenances thereof, unto the said Grantee, its successors andassigns, forever, to its and their own proper use and behoof. And also, thesaid Grantor does for Grantor and for Grantor’s heirs, executors,administrators, successors and assigns covenant with the said Grantee, itssuccessors and assigns, that at and until the ensealing of these presentsGrantor is well seized of the Mortgaged Property as a good indefeasible estatein FEE SIMPLE; and has good right to bargain and sell the same in manner andform as above written; and that the same is free from all encumbranceswhatsoever, except encumbrances set forth on Schedule B, Part I of themortgagee title insurance policy delivered to and pre-approved by Grantee (the “**Policy**”).

 

ANDFURTHERMORE, the said Grantor does by these presents bind Grantor and Grantor’sheirs, executors, administrators, successors and assigns, forever, to warrantand defend the above granted and bargained Mortgaged Property to the saidGrantee, its successors and assigns, against all claims and demand whatsoever,except as set forth on Schedule B, Part I of the Policy.

 

THECONDITION OF THIS DEED IS SUCH THAT:

 

WHEREAS,Grantee this date has made to Grantor a commercial mortgage loan in theprincipal amount of FOUR MILLION THREE HUNDRED THOUSAND AND 00/100 DOLLARS($4,300,000.00) (the “**Loan**”) having amaturity date of not later than January 28, 2020 as evidenced by aPromissory Note of even date in such amount payable to Grantee or order (the “**Note**”); and

 

WHEREAS,in consideration thereof, and in order more fully to protect the security ofthis Mortgage, Grantor represents, warrants, covenants, and agrees as follows:

 

1.                                       Authority, to Execute Loan Documents. The Grantor has full power and authority toexecute and deliver the Note, this Mortgage, all other mortgage instruments,security agreements, and all other agreements and documents required of it(collectively, the “**Loan Documents**”),to the Grantee, and the execution and delivery of the same is not in violationof and will not result in default of any agreements or understanding theGrantor may have with any person or persons. The Grantor’s execution anddelivery of the same has been duly authorized by all requisite company actions.

 

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2.                                       Legal Tender, Joint and Several Liability. The Grantor shall pay all the indebtednessevidenced by the Note, including, but not limited to, all outstanding principaland the interest owed under the Note in lawful money of the United States atthe times and in the manner set forth in the Note (collectively, the “**Mortgage Debt**”). If the Grantor consists ofmore than one person or entity, such Grantors shall be jointly and severallyliable for the performance of all covenants and agreements herein contained:

 

3.                                       Taxes Assessments, Other Charges and FutureLaws. The Grantorshall pay promptly, before the same shall become delinquent, all real estatetaxes, other taxes, assessments, sewer rents, water rates and other charges ofany kind now or hereafter levied or assessed upon the Mortgaged Property or anypart thereof, or upon the Note, or upon the interest of the Grantee in theMortgaged Property, and any governmental or municipal charges and impositionsfor which lien rights exist. The Grantor shall exhibit to the Grantee receiptsfor the payment of real estate taxes immediately following payment thereof, andreceipts for the payment of all other items specified in this Section priorto the date when the same shall become delinquent, upon request of the Grantee.

 

Inthe event of the passage, after the date of this Mortgage, of any law or in theevent of the rendition of a decision of any court of competent jurisdictionimposing upon the Grantee the taxes, charges or assessments previously paid bythe Grantor, or changing in any way the laws for the taxation of mortgages orindebtedness secured by mortgages, or imposing a tax, directly or indirectly,on this Mortgage or the Note, or changing the manner of the collection of anysuch taxes, charges or assessments, so as to affect this Mortgage or lessen thenet income to Grantee on the Mortgage Debt Grantor shall pay any such tax,charge or assessment to or for the Grantee.

 

4.                                       Hazard Insurance.  TheGrantor shall keep the Mortgaged Property and any and all alterations,rebuilding, replacements and additions thereto, insured for the benefit of theGrantee pursuant to policies which shall provide coverage of not less thancoverage encompassed by Builder’s Risk (during any period of construction ofthe improvements), Fire, Extended Coverage and Vandalism and Malicious Mischiefperils broadened to so-called “Direct or All Risk of Physical Loss”(hereinafter collectively called the “**Hazards****and****Risks**”), all in forms approved by the Grantee and in an amountequivalent to the greater of the Loan or one hundred (100%) percent of the fullinsurable value thereof, with such insurance to provide for the fullreplacement cost, excluding the footings and foundations below the lowerbasement floor undersurface, or if there is no basement, that surface which isbelow ground level, without deduction for depreciation. Such insurance shallnot contain any clause which would result in the insured thereunder beingrequired to carry insurance with respect to the property covered thereby in anamount equal to the minimum specific percentage of the full replacement cost ofsuch property in order to prevent the insured therein named from becoming aco-insurer of any loss under such policy. If deemed reasonably necessary by the Grantee, the Grantor shall alsomaintain in full force and effect with respect to the Mortgaged Property,Boiler and Machinery insurance, in forms and amounts satisfactory to theGrantee.  The Grantor shall also maintainrent insurance against loss of rentals arising out of damage or destructionfrom the said Hazards and Risks and vandalism and malicious mischief, in anamount sufficient to avoid any coinsurance penalty, but in any event for notless than one (1) year’s gross rental income of the Premises, or for suchother amount as the Grantee may require. Grantor may provide coverage required by this Section 4 through ablanket policy.

 

Allinsurance herein provided for shall cite the Grantee as a first mortgageetherein and shall be obtained by the Grantor and issued by companiessatisfactory to the Grantee. All policies, including additional and renewalpolicies, shall contain an agreement by the insurer that it will endeavor toprovide at least fifteen (15) days prior written notice to the Grantee of anycancellation of the policy, provided that failure to do so shall impose noobligation or liability on the insurer. All renewal binders shall be delivered to the Grantee before theexpiration of the then current policy, with renewal policies to follow withinfifteen (15) days after receipt thereof by the Grantor. All policies, includingadditional and renewal policies, shall be payable, in case of loss or damage,to the Grantee as the first mortgagee and shall contain the standard MortgageEndorsement and non-contributing mortgagee clause as well as the standardwaiver of subrogation endorsement, and waiver of other endorsements, as theGrantee may require from time to 

 

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time,all to be in form acceptable to the Grantee. In the event of any loss, theGrantor will give immediate notice thereof to the Grantee. The Grantor herebyappoints the Grantee its attorney-in-fact, coupled with an interest, andauthorizes, and so long as an Event of Default has occurred and has not beencured, directs and empowers such attorney, at the Grantee’s option, on behalfof the Grantor, to adjust, compromise and settle any losses under any of theinsurance policies, to collect and receive payments of insurance, to endorsethe Grantor’s name on all documents, checks and drafts in payment of anyinsured loss. If no Event of Default has occurred and is continuing and thecost to repair the damage to the Mortgaged Premises does not exceed$500,000.00, then the insurance proceeds shall be paid to Grantor and used forthe restoration of the Mortgaged Premises. If the cost to repair the damageexceeds $500,000.00, provided no Event of Default has occurred and iscontinuing and further provided that Grantor demonstrates to the fullsatisfaction of Grantee in Grantee’s reasonable discretion that: (i) thesubject insurance proceeds are sufficient to restore the damage to theMortgaged Property, (ii) the restoration of damage caused by such casualtycan be completed within two hundred forty (240) days following such casualty;and (iii) the restoration of damage is permitted under applicable stateand local regulations, then Grantee will permit the use of such insuranceproceeds received by Grantee and Grantor to be used for the restoration of theMortgaged Property subject to the following additional conditions. Theforegoing shall apply only to such insurance proceeds as may be needed todefray the cost of restoration and any excess over the actual cost ofrestoration shall be paid over to Grantor. Any insurance proceeds made available shall be held by Grantee untilGrantor furnishes complete plans and specifications for the restoration of theMortgaged Property, reasonably satisfactory to Grantee and accompanied by allrequired governmental approvals and permits and shall be disbursed to theGrantor solely for the purpose of restoring the Mortgaged Property to itsformer condition as the work progresses, the time and amount of eachdisbursement to be at the sole discretion and upon the estimate of Grantee. Theforegoing shall not apply to any casualty which occurs during the last onehundred eighty (180) days prior to the maturity date of the loan securedhereby.

 

If,at any time during the term of this Mortgage, including any extension thereof,the area in which the Premises, or any part thereof, is located is designatedas a “flood prone” area pursuant to the Flood Disaster Protection Act of 1973,or any amendment or supplements thereto, or if such area is identified onofficial flood maps published by the Department of Housing and UrbanDevelopment as a “flood” area/zone, then, in such event, Grantor shall promptlyobtain flood insurance in an amount equal to that coverage available pursuantto regulations adopted from time to time by the National Flood InsuranceProgram or the amount of indebtedness hereby secured, whichever is less, andshall otherwise comply with the National Flood Insurance Program as set forthin the Flood Disaster Protection Act of 1973. Grantor further covenants andagrees to fully comply with the requirements of any law, order, rule, ordinanceor regulation concerning flood insurance, to the extent that the same apply tothe Premises, or any part thereof.

 

5.                                       Liability Insurance. The Grantor shall obtain, carry and maintainliability insurance with minimum limits of $2,000,000.00 per occurrence and$3,000,000.00 in the aggregate with companies satisfactory to the Grantee, andcopies of such insurance policies, including renewals thereof, shall bedeposited with the Grantee and shall contain a provision designating theGrantee as an additional insured party and providing for not less than fifteen(15) days written notice to the Grantee prior to any cancellation, non-renewalor material change thereof. Grantor may provide coverage required by this Section 5through a blanket policy.  The Granteemay, based on customary and reasonable market requirements applicable toproperties of this type and usage, re-evaluate the foregoing coverage amountsand require that they be reasonably increased from time to time.

 

6.                                       Other Insurance.  TheGrantee may, at its option, reasonably require the Grantor to obtain additionalinsurance in forms, amounts, substance and with companies, institutions orpersons reasonably satisfactory to the Grantee. If at any time, the MortgagedProperty shall be deemed or discovered subsequent to the date hereof to be “nonconforming,”Grantor shall, upon request by the Grantee, immediately insure the MortgagedProperty against: (a) contingent liability from the operation of any suchbuilding laws; (b) demolition insurance; and (c) increased cost of constructioninsurance, all in such formats and amounts as shall be satisfactory to Grantee.

 

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7.                                       Tax Escrow.  TheGrantor agrees to pay to Grantee on a monthly basis together with payments dueunder the Note, amounts estimated by the Grantee to be sufficient to enable theGrantee to pay, as they become due, all taxes and assessments and charges asset forth in this Mortgage.  Anydeficiencies because of the insufficiency of such additional payments shall beforthwith deposited by the Grantor with the Grantee upon demand by the Grantee.No trust relationship shall exist between the Grantor and Grantee as to saidfunds so deposited, and said funds may be commingled with the Grantee’s otherfunds, and no interest shall be paid by the Grantee to the Grantor for anyfunds so deposited. The Grantee, at its option at any time after such Event ofDefault, may apply the balance remaining of said funds so deposited, as acredit against the Mortgage Debt.

 

8.                                       Maintenance and Repair. The Grantor shall maintain the MortgagedProperty in good condition and repair, and shall not commit or suffer any wastethereon. Provided insurance or condemnation proceeds are made available to theGrantor, the Grantor shall promptly repair, restore, replace or rebuild anypart of the Mortgaged Property which may be damaged or destroyed by anycasualty whatsoever or which may be affected by any proceeding of the characterreferred to in Section 11 hereof.

 

9.                                       Alteration or Demolition. The Grantor agrees that no building or otherproperty now or hereafter covered by the lien of this Mortgage shall beremoved, demolished, or structurally altered without the prior written consentof the Grantee, except that the Grantor may remove or dispose of, free from thelien of this Mortgage, any Service Equipment as from time to time may becomeworn out or obsolete, provided that prior to such removal, any such ServiceEquipment shall be replaced with other equipment of value and utility at leastequal to that of the replaced Service Equipment and free from any titleretention or security agreement or other encumbrance. By such removal andreplacement, the Grantor shall be deemed to have automatically subjected suchother equipment to the lien of this Mortgage and Section 24 hereof. TheGrantor shall immediately notify the Grantee of any such replacement and shallfurther execute such mortgage, security agreement, or other documents as theGrantee may require with respect thereto.

 

10.                                 Restrictions on Sale and Use of Property, Etc. The Grantor shall at all times own theMortgaged Property and will not sell, lease, encumber, grant a securityinterest in, suffer change in title or ownership of, or otherwise transfer, orvest title in anyone other than the Grantor, to all or any part of theMortgaged Property while any part of the Mortgage Debt remains unpaid, exceptwith the Grantee’s prior written consent. Further, unless required by applicable law or unless the Grantee hasotherwise agreed in writing, the Grantor shall not allow changes in the natureof the occupancy for which the Mortgaged Property were intended on the date ofthis Mortgage, including, but not limited to, any change in any privaterestrictive covenant or private restrictions, if any, limiting or defining theuses which may be made of any part of the Premises; nor shall the Grantorinitiate a change in the zoning classification of the Premises, without theprior written consent of the Grantee.

 

11.                                 Eminent Domain. In the event that the whole or any substantialpart of the Mortgaged Property shall be taken by eminent domain, or in theevent of any alteration of the grade of any street or highway, or if any otherinjury to or decrease in value of the Mortgaged Property, or the reacquisitionof the whole or any part of the Mortgaged Property pursuant to the terms of anyredevelopment plan or agreement affecting the Mortgaged Property or if anyagreement shall be made between the Grantor and any entity vested with thepower of eminent domain, any and all awards and payments on account thereofshall be deposited with the Grantee (such awards and/or payment hereinafterreferred to as the “**Award**” or “**Payment**”). The Grantor shall give theGrantee immediate notice of the actual or threatened commencement of any of theforegoing proceedings, and shall deliver to the Grantee copies of all papersserved in connection with any such proceedings. The Grantee shall have theright to intervene and participate in any proceedings in connection with anysuch taking and any costs and expenses incurred by the Grantee in connectiontherewith shall be payable by the Grantor on demand, unless such interventionshall be prohibited by the court having jurisdiction over such taking, in whichevent the Grantor shall consult with the Grantee in connection with suchproceedings; and the Grantor shall not enter into any agreement with regard tothe Mortgaged Property or any Award or Payment on account 

 

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thereof unless theGrantee shall have consented thereto in writing. The Grantor hereby appointsthe Grantee its attorney-in-fact; coupled with an interest, and authorizes,directs and empowers such attorney, at the Grantee’s option, on behalf of theGrantor, to adjust, compromise and settle the claim for any such Award orPayment, to collect, receive and retain the proceeds thereof, to endorse theGrantor’s name on all documents and instruments in connection therewith, and togive proper receipts therefor. The Grantor further agrees, on request, to make,execute, and deliver to the Grantee any and all assignments and otherinstruments, as the Grantee may require, to confirm or assign all such Award orPayment to the Grantee free and clear of any and all encumbrances of any naturewhatsoever.

 

Notwithstandingany such taking, alteration of grade, other injury to or decrease in value ofthe Mortgaged Property, or reacquisition of title, or agreement, the Grantorshall continue to pay the Mortgage Debt. Any reduction in the Mortgage Debt resultingfrom the application by the Grantee of such award or payment as hereinafter setforth shall be deemed to take effect only on the date of such application. Theproceeds of any award or payment, after deducting the expenses of collection,including, but not limited to, attorneys’ and other professional fees and othercosts and disbursements incurred by the Grantee, may be applied by the Grantee,at its option, toward payment of the Mortgage Debt, whether or not same shallbe then due or payable, or be paid over wholly or in part to the Grantor forthe purposes of altering or restoring any part of the Mortgaged Property whichmay have been damaged as a result of any such taking, alteration of grade, orother injury to the Mortgaged Property, or for any other purpose or objectsatisfactory to the Grantee, but the Grantee shall not be obligated to see tothe proper application of any amount paid over to the Grantor, nor shall theamount so paid over to the Grantor be deemed a payment on the Mortgage Debt.   The Grantee agrees that so long as it isreasonably practical to do so, it will pay over such proceeds to the Grantorfor restoration of the Mortgaged Property upon the same terms and conditions asapply to the use of insurance proceeds under **Paragraph**4 above.

 

Ifprior to the receipt by the Grantee of such award or payment, the MortgagedProperty shall have been sold on foreclosure of this Mortgage, the Granteeshall have the right to receive said award or payment to the extent of theMortgage Debt remaining unsatisfied after such sale of the Mortgaged Property,with interest thereon at the highest rate set forth in the Note, whether or nota deficiency judgment on this Mortgage shall have been sought or recovered ordenied, and to the extent of the attorneys’ and other professional fees, costsand disbursements incurred by the Grantee in connection with the collection ofsuch award or payment.

 

12.                                 Protection of Lien; Costs and Indemnification. The Grantor shall pay all reasonable costs,expenses and disbursements incurred in connection with the Loan, including, butnot limited to, reasonable attorneys’ and other professional fees, recordingfees, survey costs, title search fees, abstract fees, title insurance premiums,brokerage fees, and appraisal fees. The Grantor shall indemnify and hold theGrantee harmless from all costs, expenses and disbursements arising from theclaims of any person or incurred by reason of any action, suit, proceeding,hearing, motion or application before any court or administrative body in whichthe Grantee may be a party by reason hereof, including, but not limited to,condemnation, bankruptcy and administrative proceedings, as well as any otherproceedings wherein proof of claim is required to be filed, or incurred orexpended for any reason in the defense, enforcement, protection or sustainingof the terms, lien or priority of this Mortgage, to the extent not caused byGrantee’s gross negligence or willful misconduct. At its option, but withoutany liability for failure to do so, the Grantee may pay any reasonable costs,expenses or disbursements required to be, but not paid by Grantor under thisMortgage, and may perform any acts required under this Mortgage to be performedby the Grantor and incur the expense thereof, and the Grantor shall repay allsuch costs, expenses and disbursements to the Grantee on demand, together withinterest thereon at the highest rate set forth in the Note, from the date onwhich such payment is made by the Grantee, and the same shall be included inthe Mortgage Debt and be secured by this Mortgage.

 

TheGrantee, in making any payment herein authorized in the place and stead of theGrantor which relates to: (i) taxes, assessments, water rates, sewer useand rentals and other governmental or municipal charges, fines, impositions orliens asserted against the Mortgaged Property, may do so according to any bill,statement or estimate procured from the appropriate public office withoutinquiry into 

 

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theaccuracy thereof or into the validity of any tax, assessment, sale, forfeiture,tax lien or title or claim thereof, or (ii) insurance premiums, may do soaccording to any notice, bill, statement or estimate procured from theappropriate insurer without inquiry into the accuracy or validity thereof, or (iii) anyapparent or threatened adverse title, lien, statement of lien, encumbrance,claim or charge, shall be the sole judge of the legality or validity of same,or (iv) the expense of repairs or replacement of any buildings,improvements, Service Equipment or any other Mortgaged Property, shall be thesole judge of the necessity for, and extent of, any such repairs orreplacement, or (v) any other purpose not specifically enumerated in thisSection, may do so whenever, in its reasonable judgment and discretion, suchpayment shall seem necessary. or desirable to defend or protect the lien ofthis Mortgage, and provided further that in connection therewith, the Grantee,at its option, may, and is hereby authorized, to obtain a continuation reportof title prepared by a title insurance company, the costs of which shall berepayable by the Grantor on demand, together with interest thereon at thehighest rate set forth in the Note, from the date on which such payment is madeby the Grantee, and the same shall be included in the Mortgage Debt and besecured by this Mortgage.

 

13.                                 Rental and Security. The Grantor shall not collect rent more thanthirty (30) days in advance of its due date under any lease for any part of theMortgaged Property without the prior written consent of the Grantee; and in theevent such approval is given, the Grantor agrees to deposit said rents with theGrantee upon request. The Grantor shall not assign the whole or any part ofsaid rents, or income or profits arising from the Mortgaged Property, withoutthe prior written consent of the Grantee.

 

14.                                 Waiver of Liens. The Grantor shall furnish to the Grantee all suchwaivers and releases of liens or claims upon the Mortgaged Property as the Granteemay require, and shall keep and maintain the Mortgaged Property free from theclaim of all persons supplying labor or materials in connection with theconstruction or repair of any building on the Premises, notwithstanding by whomsuch labor or materials may have been contracted. In the event that anymechanics lien is filed against the Mortgaged Property, the Grantor shall causethe same to be canceled and discharged of record within sixty (60) days afterthe date of filing thereof.

 

15.                                 Estoppel Certificate. The Grantor shall certify by a writing, dulyacknowledged, to the Grantee, or to any proposed assignee of this Mortgage,upon request, the amount of principal and interest then owing on this Mortgageand whether any offsets or defenses exist against the Mortgage Debt, within ten(10) business days of such request.

 

16.                                 Statement on Encumbrances. Upon request by the Grantee, the Grantorshall obtain from all persons hereafter having or acquiring any interest in, orencumbrance on, the Mortgaged Property or any part thereof, a writing, dulyacknowledged, stating the nature and extent of such interest or encumbrance,and that the same is subordinate to this Mortgage and that no offset ordefenses exist in favor thereof against this Mortgage or the Note, and deliversuch writing to the Grantee.

 

17.                                 Receiver. The Grantee, in any action to foreclose thisMortgage, or upon the actual or threatened waste to any part of the MortgagedProperty, or upon the occurrence of an Event of Default beyond any applicablenotice and cure periods, shall be at liberty to apply for the appointment of areceiver of the rents, issues, profits and security deposits of the MortgagedProperty without notice, and shall, to the extent permitted by law, be entitledto the appointment of such receiver as a matter of right, without considerationof the value of the Mortgaged Property as security for the Mortgage Debt, orthe solvency of any person or corporation liable for the payment of such rentalamounts.

 

18.                                 Books, Records and Accounts. The Grantor will keep and maintain or willcause to be kept and maintained proper and accurate books, records and accountsreflecting all items of income and expense in connection with the operation ofthe Mortgaged Property or any part thereof, including, but not limited to, anyservices, equipment or furnishings provided in connection therewith, whethersuch income or expenses be realized by the Grantor or by any other person orentity whatsoever. The Grantee or its designee shall have the right from timeto time, at all times during normal business hours and upon 

 

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reasonable prior notice,to examine such books, records and accounts at the office of the Grantor orother person or entity maintaining such books, records, and accounts and tomake copies or extracts thereof as the Grantee shall desire.

 

19.                                 Rental and Income Statements. In accordance with and as otherwiserequested in Section 34(c) below, the Grantor shall furnish to theGrantee upon request, statements prepared in a manner satisfactory to theGrantee and in such detail as the Grantee may reasonably require, showing theannual rent roll, other income, and the detailed operating expenses of theMortgaged Property.

 

20.                                 Right to Enter Premises. The Grantee and any persons authorized bythe Grantee shall have the right to enter and inspect the Mortgaged Property atall reasonable times and upon reasonable prior notice, subject to the rights oftenant(s). Any professional fees and expenses that may be incurred by Granteein connection with any reports prepared by or on behalf of Grantee shall bepaid by Grantor within thirty (30) days of billing; provided that, such reportsare required by a regulatory agency or body or Grantor has committed an Eventof Default. Any third party professionals engaged to prepare any reports mustbe approved by Grantee.

 

21.                                 No Waiver, Etc. Any failure by the Grantee to insist upon thestrict performance by the Grantor of any of the terms and provisions hereof shallnot be deemed to be a waiver of any of the terms and provisions hereof, and theGrantee, notwithstanding any such failure, shall have the right thereafter toinsist upon the strict performance by the Grantor, of any and all of the termsand provisions of this Mortgage. Neither the Grantor nor any other person nowor hereafter obligated for the payment of the Mortgage Debt, in whole or inpart, shall be relieved of such obligation by reason of: (a) the failureof the Grantee to comply with any request of the Grantor or of any other personso obligated to take action to foreclose this Mortgage or otherwise enforce anyof the provisions of this Mortgage or any obligation secured by this Mortgage, (b) therelease, regardless of consideration, of the whole or any part of the MortgagedProperty or of any obligor for the Mortgage Debt, and (c) any agreement orstipulation between any subsequent owner or owners of the Mortgaged Propertyand the Grantee extending the time of payment or modifying the terms of theNote or this Mortgage without first having obtained the consent of the Grantoror such other person, and in the latter event, the Grantor and all such otherpersons shall continue to be liable to make such payments according to theterms of any such agreement of extension or modification, unless expresslyreleased and discharged in writing by the Grantee.

 

Regardlessof consideration, and without the necessity for any notice to or consent by theholder of any subordinate lien on the Premises, the Grantee may release theobligation of anyone at any time liable for the Mortgage Debt or any part ofthe Mortgaged Property and may extend the time of payment or otherwise modifythe terms of the Note and/or this Mortgage without, as to the MortgagedProperty or the remainder thereof, in any way impairing or affecting the lienof this Mortgage, or the priority of such lien, as security for the payment ofthe Mortgaged Debt as it may be so extended or modified, over any subordinatelien.

 

22.                                 Partial Foreclosure. The Grantee may, at its option and to theextent permitted by law, foreclose this Mortgage for any portion of theMortgage Debt or any other sums secured hereby which are then due and payable,subject to the continuing lien of this Mortgage for the balance not then due,but nothing contained in this Section shall impair or affect any right orremedy which the Grantee might now or hereafter have, were it not for thisSection, and the right given by this Section shall be in addition to anyothers which the Grantee may have hereunder.

 

23.                                 Marshaling. The Grantee shall not be compelled to release, orbe prevented from foreclosing or enforcing this Mortgage upon all or any partof the Mortgaged Property, unless the entire Mortgage Debt hereby secured shallbe paid in lawful money as aforesaid; and the Grantee shall not be required toaccept any part or parts of the Mortgaged Property, as distinguished from theentire whole thereof, as payment of or upon said Mortgage Debt to the extent ofthe value of such part or parts; and the Grantee shall not be compelled toaccept or allow any apportionment of said Mortgage Debt to or 

 

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among any separate partsof the Mortgaged Property. In case of a foreclosure sale, the MortgagedProperty may be sold in one parcel and as an entirety or in such parcels,manner or order as the Grantee in its sole discretion may elect.

 

24.                                 Security Agreement and Financing Statement. This Mortgage shall constitute a SecurityAgreement within the meaning of the Uniform Commercial Code as enacted andadopted in the Commonwealth of Pennsylvania, as amended from time to time (the “**Code**”) with respect to any interests orproperty included in the definition herein of the words “Mortgaged Property”,which interests or property may not be deemed to form a part of the real estatedescribed in Schedule A or may not constitute a “fixture” (within themeaning of the Code). Accordingly, in addition to any other rights and remediesavailed to the Grantee hereunder, the Grantee shall have all the rights of a “securedparty” under the Code, as amended from time to time. Furthermore, to the extentas may be required by law, the Grantor hereby authorizes the Grantee to signand file financing or continuation statements at any time with respect to anyof the Mortgaged Property, without such financing statements being executed by,or on behalf of the Grantor. Notwithstanding the foregoing, the Grantor shallexecute or cause to be executed such financing or continuation statements asrequired by applicable law the Grantee and shall reimburse the Grantee ondemand for all costs and expenses of any kind incurred in connection therewith,including, without limitation, the Grantee’s attorneys’ fees.  THIS MORTGAGE IS EFFECTIVE AND SHALL BEEFFECTIVE AS A FINANCING STATEMENT FILED AS A FIXTURE FILING WITH RESPECT TOALL GOODS WHICH ARE OR ARE TO BECOME FIXTURES INCLUDED WITHIN THE MORTGAGEDPROPERTY AND IS TO BE FILED FOR RECORD IN THE REAL ESTATE RECORDS OF THE OFFICEOF THE TOWN WHERE THE MORTGAGED PROPERTY IS SITUATED. THE MAILING ADDRESS OFGRANTOR AND THE ADDRESS OF GRANTEE FROM WHICH INFORMATION CONCERNING THESECURITY INTEREST MAY BE OBTAINED ARE SET FORTH ON PAGE ONE HEREOF.  PHOTOGRAPHIC OR OTHER REPRODUCTION OF THISMORTGAGE OR ANY FINANCING STATEMENT RELATING TO THIS MORTGAGE SHALL BESUFFICIENT AS A FINANCING STATEMENT.

 

25.                                 Interest After Judgment. Should the Grantee herein obtain a judgmentagainst Grantor, interest shall accrue on said judgment at the interest rate setforth in the Note as applicable to interest payable before or after judgment,or as provided by statute, whichever interest rate shall be greater at thattime.

 

26.                                 Rights and Remedies Cumulative. To the extent permitted by law, the rightsand remedies provided for in this Mortgage, or which the Grantee may haveotherwise, at law or in equity (including, but not limited to, the right todamages by reason of the failure of the Grantor to keep, observe and performany of the covenants and agreements contained in this Mortgage), shall bedistinct, separate and cumulative, and shall not be deemed to be inconsistentwith each other, and none of them, whether or not exercised by the Grantee,shall be deemed to be in exclusion of any other, and any two or more of allsuch rights and remedies may be exercised at the same time. Further, theGrantee may resort for the payment of the Mortgage Debt to any other securitytherefor held by the Grantee, in such order or manner as the Grantee may elect.  If the Grantor has given the Grantee one ormore mortgages other than this Mortgage with respect to the Mortgaged Propertyor any portion thereof, then all such mortgages, and all rights and remediesprovided for in all such mortgages shall remain distinct and separate, and noneof them shall merge or be merged with this Mortgage or any other mortgages.

 

27.                                 **WAIVER OF HOMESTEAD****. FURTHER, THE GRANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, THEBENEFITS OF ALL VALUATION, APPRAISEMENT, HOMESTEAD, EXEMPTION, STAY, REDEMPTIONAND MORATORIUM LAWS, NOW IN FORCE OR WHICH MAY HEREAFTER BECOME LAW.**

 

28.                                 **WAIVER OF JURY TRIAL****. THE GRANTOR HEREBY WAIVES TRIAL BY JURY INANY COURT AND IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING INCONNECTION WITH OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH**

 

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**THIS MORTGAGE IS A PART AND/ORTHE ENFORCEMENT OF ANY OF THE GRANTEE’S RIGHTS AND REMEDIES. THE GRANTORACKNOWLEDGES THAT GRANTOR MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY AND ONLYAFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH GRANTOR’SATTORNEY.  NO PARTY TO THIS MORTGAGE HASAGREED WITH OR REPRESENTED TO ANY OTHER PARTY HERETO THAT THE PROVISIONS OFTHIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.**

 

29.                                 Compliance with Local, State and FederalRegulation.

 

(a)                                  Grantor has, to the extent appropriate and obtainable, procured any andall necessary certificates, licenses, authorizations, registrations, permits,environmental and zoning resolutions and/or approvals necessary for theoperation of all improvements and businesses at the Mortgaged Property, or anypart thereof, or the commencement or continuance of construction thereof, asthe case may be.

 

(b)                                 Respecting the Mortgaged Property and the use and operation thereof, theGrantor shall at all times remain in compliance with all federal, state andlocal laws and ordinances, and the Grantor is not, to the best of itsknowledge, and shall not be at any time, in violation of any restrictivecovenant or zoning, land use, environmental protection (including, withoutlimitation, air pollution, water pollution, and inland wetland proscriptions),health, occupation, safety or other law, regulation or order.

 

(c)                                  Without limiting in any way the generality of the foregoing respectingthe Mortgaged Property and the use and operation thereof, the Grantor is, tothe best of its knowledge, and shall at all times remain in compliance with anystatutes, regulations, orders or compliance schedules relating to all orders ofthe federal Occupational Safety and Health Act (“**OSHA**”) and the Pennsylvania Occupational Safety and HealthAct, and the Grantor has made arrangements so that it will be, within timelimits set by OSHA, in full compliance with any orders or compliance schedulesissued in connection therewith relating to the future operations of theGrantor.

 

30.                                 Environmental Matters. Grantor and Grantee have entered into thatcertain Environmental Compliance and Indemnity Agreement of even date herewith,the terms and conditions of which are incorporated herein by this reference andmade a part hereof as if fully set forth herein.

 

31.                                 Event of Default. Upon the occurrence of an Event of Defaulthereunder, the Mortgage Debt shall become due and payable forthwith at theoption of the Grantee. Each of the following events shall be deemed to be an “**Event of Default**” hereunder: (i) thefailure of the Grantor to pay when due any and all indebtedness owed to theGrantee, including, without limitation, any principal and/or interest or anyamount owed under this Mortgage when due and payable as provided herein; or (ii) failureto promptly (within the time period set forth or, if no period is specificallyset forth, then within thirty (30) days after written notice from the Grantee)observe, perform or comply with any obligation, condition or covenant to beobserved, performed or complied with by the Grantor of the Mortgage Debt, underthis Mortgage, the Note or any other agreements and documents executed and/or deliveredin connection with the Loan; or (iii) failure of the Grantor to pay whendue any other indebtedness or liabilities owed to the Grantee or, as to anyobligation in excess of $50,000.00, singularly or in the aggregate, owed to anyother person or entity, or failure to promptly observe, perform or comply withany other covenants or obligations owed to the Grantee, or the occurrence of adefault under any documents or agreements evidencing, securing or relating inany way to any indebtedness, liabilities or obligations of every kind, natureand description of the Grantor owing to the Grantee, other than the MortgageDebt (collectively, the “**Financing Agreements**”);or (iv) the Grantor shall cease to legally exist or be dissolved, or theGrantor shall be deprived of title, possession or control of the MortgagedProperty by process or operation of law or order of any court, or if anyforeclosure proceeding shall be instituted on any lien or mortgage of any kindaffecting the Mortgaged Property; or (v) the filing by or against theGrantor of any petition, arrangement, reorganization, or the like under anyinsolvency or bankruptcy law, or the adjudication of them or any of them as abankrupt, or the making of an assignment for the benefit of

 

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creditors, or theappointment of a receiver for any part of any of their respective properties(with respect to an involuntary petition or filing, Grantor shall have up tosixty (60) days to cause the dismissal of same); or (vi) insolvency (assuch term is deemed in the Federal Bankruptcy Code, U.C.C. Section 101(32))of the Grantor, or any of Grantor’s members, officers, or managers; or (vii) anymaterial representation, warranty, or disclosure, or any statements,certificate or other data made by or furnished by the Grantor in this Mortgage,the Note and any other agreements and documents executed and/or delivered inconnection with the Loan, or any material representation, warranty, ordisclosure made by the Grantor is determined by the Grantee to have been falseor misleading on the date when made; or (viii) any amendment ormodification of any provision of the articles of organization of Grantor or ofits operating agreement changing the nature of Grantor’s business, the powersof the manager, the voting rights of its members or the management of theProject or Grantor without Grantee’s prior written consent; or (ix) anychange, withdrawal, removal, addition or substitution of any member of Grantorholding more than 10% of the interest or Grantor without the Grantee’s priorwritten consent or any other change in the control or management of Grantor orany hypothecation, alienation, transfer, pledging, securitization, assignment,collateralization, granting, or mortgaging of any such interest of Grantor; or (x) anymerger or consolidation of the Grantor with or into another person, unless theresulting entity has a net asset value equal to or greater than the Grantor.

 

FOR THE PURPOSE OF OBTAINING POSSESSION OF THE PROPERTYFOLLOWING ANY DEFAULT HEREUNDER, THE BORROWER IRREVOCABLY AUTHORIZES ANDEMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OFPENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR THE BORROWER, AS WELL AS FOR THEPERSONS CLAIMING UNDER, BY, OR THROUGH THE BORROWER, TO APPEAR FOR AND CONFESSJUDGMENT IN EJECTMENT AGAINST THE BORROWER AND ALL PERSONS CLAIMING UNDER, BY,OR THROUGH THE BORROWER, IN FAVOR OF THE LENDER FOR THE RECOVERY BY THELENDER OF POSSESSION OF THE PROPERTY, FOR WHICH THIS MORTGAGE (OR A COPYTHEREOF VERIFIED BY AFFIDAVIT) SHALL BE SUFFICIENT WARRANT; WHEREUPON A WRIT OFPOSSESSION OF THE PROPERTY MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRITOR PROCEEDING WHATSOEVER AND WITHOUT STAY OF EXECUTION, THE BORROWER HEREBYRELEASING AND AGREEING TO RELEASE THE LENDER AND ANY SUCH ATTORNEY FROM ALLPROCEDURAL ERRORS AND DEFECTS WHATSOEVER IN ENTERING SUCH ACTION OR JUDGMENT ORIN CAUSING SUCH WRIT OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON ORCONCERNING THE SAME, PROVIDED THAT THE LENDER SHALL HAVE FILED IN SUCH ACTIONAN AFFIDAVIT MADE ON THE LENDER’S BEHALF SETTING FORTH THE FACTS NECESSARY TOAUTHORIZE THE ENTRY OF SUCH JUDGMENT ACCORDING TO THE TERMS OF THIS MORTGAGE,OF WHICH FACTS SUCH AFFIDAVIT SHALL BE PRIMA FACIE EVIDENCE.  IT IS HEREBY EXPRESSLY AGREED THAT IF FOR ANYREASON AFTER ANY SUCH ACTION HAS BEEN COMMENCED, THE SAME SHALL BEDISCONTINUED, MARKED SATISFIED OF RECORD, OR TERMINATED, OR POSSESSION OF THEPROPERTY SHALL REMAIN IN OR BE RESTORED TO THE BORROWER OR ANYONE CLAIMINGUNDER, BY, OR THROUGH THE BORROWER, THE LENDER MAY, WHEREVER AND AS OFTEN ASTHE LENDER SHALL HAVE THE RIGHT TO TAKE POSSESSION AGAIN OF THE PROPERTY, BRINGONE OR MORE FURTHER ACTIONS IN THE MANNER HEREINBEFORE SET FORTH TO RECOVERPOSSESSION OF THE PROPERTY AND TO CONFESS JUDGMENT THEREIN AS HEREINABOVEPROVIDED, AND THE AUTHORITY AND POWER ABOVE GIVEN TO ANY SUCH ATTORNEY SHALLEXTEND TO ALL SUCH FURTHER ACTIONS IN EJECTMENT AND CONFESSION OF JUDGMENTTHEREIN AS HEREINABOVE PROVIDED, WHETHER BEFORE OR AFTER AN ACTION OF MORTGAGEFORECLOSURE IS BROUGHT OR OTHER PROCEEDINGS IN EXECUTION ARE INSTITUTED UPONTHIS MORTGAGE OR ANY INSTRUMENT THEN EVIDENCING ANY OF THE LIABILITIES, ANDAFTER JUDGMENT THEREON OR THEREIN AND AFTER A JUDICIAL SALE OF THE PROPERTY.

 

32.                               Miscellaneous Provisions.

 

(a)                                 In the event of a foreclosure of this Mortgage, the purchaser of theMortgaged Property, if the Grantee so consents, shall succeed to all the rightsof the Grantor to the Mortgaged 

 

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Property, including, without limitation, any rightto unearned premiums, in and to all policies of insurance assigned anddelivered to the Grantee pursuant to the provisions hereof.

 

(b)                                 Any demand by the Grantee upon the Grantor hereunder, or any notice requiredto be given hereunder shall be deemed sufficient and commercially reasonablenotice and shall be effective when delivered to an overnight mail or messengerservice or deposited in the mails, first class, postage prepaid, registered orcertified mail, return receipt requested, to Grantor or Grantee, as the casemay be, at its address set forth above. Either of the parties hereto may notifythe other that any such notice shall be given to such other address as suchparty may so instruct by written notice similarly given.

 

(c)                                  Any and all provisions of the Financing Agreements are hereby made a parthereof to the same extent as if fully set forth herein.

 

(d)                                 The Grantor shall immediately give notice to the Grantee of any Event ofDefault by the Grantor of the Mortgage Debt under this Mortgage and shallnotify the Grantee promptly of the occurrence of any of the following:

 

(i)                                     a fire or other casualty causing material damage to the MortgagedProperty;

 

(ii)                                  receipt of notice of eminent domain proceedings or condemnation of theMortgaged Properly;

 

(iii)                               receipt of notice from any governmental authority relating to thestructure, use or occupancy of the Mortgaged Property, or any real propertyadjacent to the Mortgaged Property;

 

(iv)                              receipt of any notice from any tenant of all or any portion of theMortgaged Property asserting that the Grantor is in breach of a materialobligation to such tenant;

 

(v)                                 substantial change in the use of the Mortgaged Properly;

 

(vi)                              receipt of any notice from the holder of any lien or security interest inthe Mortgaged Property asserting that the Grantor is in breach of an obligationto such holder;

 

(vii)                           commencement of any litigation affecting the Mortgaged Property that isnot covered by insurance;

 

(viii)                        any contract or agreement with respect to any sale or other transfer ofany part of the Mortgaged Property.

 

(e)                                  Wherever used in this Mortgage, unless the context clearly indicates acontrary intent, or unless otherwise specifically provided herein, the word “Grantee”shall include “any subsequent holder or holders of this Mortgage” the word “person”shall include “an individual, corporation, partnership, unincorporatedassociation, or other entity”. Unless otherwise provided herein, plural orsingular shall include each other, and pronouns in any gender shall beconstrued as masculine, feminine or neuter as the context requires.

 

(f)                                   If any term or provision of this Mortgage or the application thereof toany person or circumstance, shall to any extent be invalid or unenforceable,the remainder of this Mortgage, or the application of such term or provision topersons or circumstances other than those as to which it is invalid 

 

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or unenforceable, shall not be affected thereby, andeach term and provision of this Mortgage shall be valid and enforceable to thefullest extent permitted by law.

 

(g)                                  The captions or section headings used in this Mortgage are forconvenience only and of no substance or significance, and shall not be used tointerpret, modify or affect in any way the covenants and agreements hereincontained.

 

(h)                                 This Mortgage shall be governed by and construed in accordance with thelaws of the Commonwealth of Pennsylvania, and shall be binding upon and inureto the benefit of the parties hereto and their respective heirs, executors,administrators, successors and assigns.

 

33.                               Special Provisions. The Grantor further agrees and covenants asfollows:

 

(a)                                 Not later than one hundred twenty (120) days after the end of each fiscalyear, financial information of Grantor including, without limitation, an annualrent roll, an operating statement, a cash flow statement and a balance sheetand any other information reasonably requested by the Grantee, prepared byGrantor’s chief financial officer, or if Grantor has no such officer, the chieffinancial officer of Grantor’s manager.

 

(b)                                 The Grantor shall also furnish to the Grantee such other financialinformation as the Grantee reasonably requires.

 

(c)                                  No subsequent encumbrances, liens, or interests of any kind shall bepermitted (voluntary of involuntary) on or in the Mortgaged Property.

 

(d)                                 The Grantor will fund an 18-month debt service interest reserve account(the “**Interest Reserve**”) duringthe last four (4) years of the existing term of the lease between theGrantor and Olympus Corporation of the Americas dated December 16, 2008(the “**Olympus Lease**”), to be heldby and pledged to the Bank pursuant to a pledge and security agreementreasonably acceptable to the Grantee.  Uponextension of the existing term of the Olympus Lease, or execution of a newlease on terms reasonably acceptable to the Grantee, this provision shall be ofno further force and effect and, if it has been funded, the Interest Reservewill be released to the Grantor.

 

(e)                                  The Grantor will fund a $100,000 tenant improvement/Leasing commissionreserve account (the “**TI/LC Reserve**”)during the last four (4) years of the existing term of the Olympus Lease,to be held by and pledged to the Bank pursuant to a pledge and securityagreement reasonably acceptable to the Grantee. Upon extension of the existing term of the Olympus Lease, or executionof a new lease on terms reasonably acceptable to the Grantee, this provisionshall be of no further force and effect and, if it has been funded, the TI/LCReserve will be released to the Grantor.

 

34.                               Appraisals.  TheGrantor will reimburse the Grantee for the reasonable costs of obtaining orupdating appraisals of the Mortgaged Property in accordance with the Grantee’sregulatory requirements, unless an Event of Default has occurred, in whichcase, the Grantee reserves the right to obtain an updated appraisal of theMortgaged Property at any time and from time to time, the cost of which updatedappraisal or appraisals shall be exclusively borne by the Grantor.

 

35.                               Nonrecourse. Notwithstanding any other provision of this Mortgage or other LoanDocuments to the contrary, the execution of this Mortgage shall impose nopersonal liability on the Grantor or any principal, director, officer,employee, beneficiary, shareholder, partner, member, trustee, agent oraffiliate of the Grantor or any person owning, directly or indirectly, anylegal or beneficial interest in the Grantor, or any successors or assigns ofany of the foregoing (the “**Exculpated Parties**”)for payment of the indebtedness evidenced hereby. The Grantee shall look onlyto the Mortgaged Property and to the rents, issues and profits thereof, andother collateral identified herein and in the other Loan 

 

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Documents, and upon anEvent of a Default will not seek any deficiency or personal judgment againstthe Grantor or any of the Exculpated Parties, except such judgment or decree asmay be necessary to foreclose and bar the Grantor’s interests in the MortgagedProperty.  Notwithstanding the foregoing,the Grantor shall remain personally liable for all expenses, damages, lossesand costs  (including, withoutlimitation, reasonable attorney’s fees) incurred by the Grantee in connectionwith:

 

(i)                                     fraud or gross negligence on behalf of or by the Grantor in connection with theGrantor’s application for or obtaining theLoan or in the performance of the Grantor’sobligations thereunder;

 

(ii)                                  obtainingand using insurance loss or condemnation proceeds other than as provided for inthis Mortgage;

 

(iii)                               misappropriationof rents or security deposits from the Mortgaged Property while an Event ofDefault is continuing;

 

(iv)                              intentionalphysical waste of the Mortgaged Property on behalf of or by the Grantor;

 

(v)                                 TheGrantor’s breach of the warranties, covenants and representations made underthe Environmental Compliance And Indemnity Agreement between the Grantor andthe Grantee of even date herewith; and

 

(vi)                              failureto pay any taxes, assessments or other charges with respect to the MortgagedProperty.

 

NOW,THEREFORE, if the Note and any additional notes which in accordance with theprovisions hereof shall be secured hereby, and any extensions or renewalsthereof shall be well and truly paid according to their tenor, and if allagreements and provisions contained in all such notes and herein are fully keptand performed, then this deed shall become null and void; otherwise to remainin full force and effect.

 

***[The Remainder of this Page Intentionally LeftBlank]***

 

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INWITNESS WHEREOF, the Grantor has hereunto caused this instrument to be executedas of the 28th day of January, 2010.

 

 
| Signed,  Sealed, and Delivered                              |                                      |
|-------------------------------------------------------------|-------------------------------------------|
| in  the presence of:                                        | **RIVERBEND  CROSSINGS III HOLDINGS LLC** |
|                                                        |                                      |
|                                                        |                                      |
|                                                        | By:                                       | Riverbend  Lehigh Valley Holdings I LLC |
|                                                        |                                      | Its  Sole Member |
|                                                        |                                      |   |
|                                                        |                                      | By: | Griffin  Land & Nurseries, Inc. |
|                                                        |                                      |   | Its  Sole Member |
|                                                        |                                      |   |
| /s/Lucille  Valentine                                       |                                      |   |   | By: | /s/Michael  Gamzon |
| Print  Name:     Lucille Valentine |                                      |   |   | Name: | Michael  Gamzon |
|                                                        |                                      |   |   | Title: | Vice  President |
|                                                        |                                      |   |
| /s/Anna  Giliberti                                          |                                      |   |   |
| Print  Name:     Anna Giliberti    |                                      |   |
|                                                        |                                      |   |
|                                                        |                                      |   |
| STATE  OF                                                   | New  York                                 | ) |   |
|                                                        | )                                         | ss. |   |   |
| COUNTY  OF                                                  | New  York                                 | ) |   |   |   |
|                                                             |                                           |  |  |  |  |  |  |  |  |

 

Onthis 27th day of January, 2010, before me a Notary Public in and for theState of New York, the undersigned officer, personally appeared MichaelGamzon, who acknowledged him/herself to be the Vice President ofGriffin Land & Nurseries, Inc., the sole member of RiverbendLehigh Valley Holdings I LLC, which is the sole member of RIVERBEND CROSSINGSIII HOLDINGS LLC, a Pennsylvania limited liability company, and that he as suchofficer of Griffin Land & Nurseries, Inc., being authorized to doso, executed the foregoing instrument for the purposes therein contained bysigning the name of Riverbend Crossings III Holdings LLC by him/herself as suchofficer of the sole member of the sole member of said limited liabilitycompany.

 

 
|   | /s/Theresa  Gordon                                  |
|--------|-----------------------------------------------------|
|   | Name:  Theresa Gordon                          |
|   | Notary  Public                                      |
|   | My  Commission Expires:  August 23,  2013 |

 

Signature Page to Mortgage and SecurityAgreement

 

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SCHEDULE A

 

ALLTHAT CERTAIN tract or piece of land situate in Upper Macungie Township, LehighCounty, Pennsylvania, more particularly bounded and described as follows, towit:

 

BEGINNINGat a point on the northerly legal right-of-way line of Nestle Way (80 foot wideright-of-way), said point being on the dividing line between Tax ParcelJ6-4-17, Lot 3 and Tax Parcel J6-4-17A, Lot 1A and Lot 1B, lands now orformerly Crossing I, LLC, and from said point of beginning running, thence,

 

Thefollowing two (2) courses and distances along the northerly right-of-wayline of Nestle Way:

 

1.              South 63 degrees 05 minutes35 seconds West, a distance of 77.90 feet to a point of curvature, thence;

 

2.              Along the arc of a circlecurving to the right, having a radius of 560.00 feet, a central angle of 20degrees 12 minutes 35 seconds, an arc length of 197.53 feet, a chord bearingSouth 73 degrees 11 minutes 52 seconds West and a chord distance of 196.50 feetto a point, thence;

 

Thefollowing five (5) courses and distances along the dividing line betweenTax Parcel J6-4-17, Lot 3, proposed Parcel ‘B’ and Tax Parcel J6-4-17, Lot 3,proposed Parcel ‘C’:

 

3.              North 20 degrees 30 minutes28 seconds West, a distance of 615.79 feet to a point, thence;

 

4.              North 50 degrees 01 minute50 seconds West, a distance of 357.53 feet to a point, thence;

 

5.              South 87 degrees 49 minutes37 seconds West, a distance of 276.93 feet to a point, thence;

 

6.              South 09 degrees 30 minutes20 seconds West, a distance of 377.59 feet to a point, thence;

 

7.              South 61 degrees 00 minutes16 seconds West, a distance of 94.02 feet to a point; thence;

 

Thefollowing fourteen (14) courses and distances in and along the centerline ofIron Run Creek, being the common dividing line between Lot 3, proposed Parcel ‘B’and Tax Parcel J6-4-17, Lot 4, lands now or formerly HAAF

 

8.              North 36 degrees 28 minutes53 seconds West, a distance of 60.05 feet to a point, thence;

 

9.              North 60 degrees 18 minutes59 seconds West, a distance of 51.12 feet to a point, thence;

 

10.       North 50 degrees 00 minutes19 seconds West, a distance of 85.71 feet to a point, thence;

 

11.       North 29 degrees 50 minutes03 seconds West, a distance of 81.04 feet to a point, thence;

 

12.       North 19 degrees 04 minutes41 seconds East, a distance of 44.17 feet to a point, thence;

 

13.       North 27 degrees 59 minutes27 seconds West, a distance of 65.58 feet to a point, thence;

 

14.       North 04 degrees 54 minutes41 seconds West, a distance of 84.14 feet to a point, thence;

 

15.       North 27 degrees 42 minutes34 seconds West, a distance of 107.06 feet to a point, thence;

 

16.       North 34 degrees 25 minutes36 seconds West, a distance of 161.85 feet to a point, thence;

 

17.       North 35 degrees 27 minutes38 seconds West, a distance of 127.38 feet to a point, thence;

 

18.       North 40 degrees 44 minutes28 seconds West, a distance of 74.80 feet to a point, thence;

 

19.       North 23 degrees 58 minutes36 seconds West, a distance of 34.19 feet to a point, thence;

 

Schedule A to Mortgage andSecurity Agreement

 

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20.       North 52 degrees 48 minutes02 seconds West, a distance of 138.03 feet to a point, thence;

 

21.       North 40 degrees 47 minutes08 seconds West, a distance of 74.99 feet to a point on the southerly legalright-of-way line for limited access of Interstate Route 78 (A.K.A. US Route22, a.k.a. S.R. 0078, variable width right-of-way), thence;

 

Thefollowing seven (7) courses and distances along the southerly legalright-of-way line for limited access for Interstate Route 78:

 

22.       South 84 degrees 40 minutes25 seconds East, a distance of 119.51 feet to a point, thence;

 

23.       South 81 degrees 48 minutes40 seconds East, a distance of 100.12 feet to a point, thence;

 

24.       South 84 degrees 40 minutes25 seconds East, a distance of 79.14 feet to a point, thence;

 

25.       Along the arc of a circlecurving to the left, having a radius of 5,824.65 feet, a central angle of 02degrees 18 minutes 31 seconds, an arc length of 234.69 feet, a chord bearingSouth 85 degrees 49 minutes 40 seconds East and a chord distance of 234.67 feetto a point, thence;

 

26.       North 85 degrees 48 minutes18 seconds East, a distance of 40.95 feet to a point, thence;

 

27.       South 81 degrees 22 minutes01 seconds East, a distance of 46.00 feet to a point, thence;

 

28.       Along the arc of a circlecuring to the left, having a radius of 5,824.65 feet, a central angle of 03degrees 26 minutes 33 seconds, an arc length of 349.96 feet, a chord bearingSouth 89 degrees 33 minutes 12 seconds East and a chord distance of 349.91 feetto a point, thence;

 

Thefollowing two (2) courses and distances along the common dividing linebetween tax parcel J6-4-17, Lot 3, proposed Parcel ‘B’ and Tax Parcel J6-4-17a,Lot 1A and Lot 1B:

 

29.       South 37 degrees 24 minutes51 seconds East, a distance of 1,109.88 feet to a point, thence;

 

30.       South 26 degrees 50 minutes16 seconds East, a distance of 369.89 feet to the point and place of beginning.

 

TaxID / Parcel No. 545508886511 1  Tile Number 455501

 

Beingthe same premises which Allentown Crossings III, L.L.C., a Delaware limitedliability company by Deed dated 1/7/10 and recorded 1/12/10 in Lehigh CountyDoc ID 2010000683 conveyed unto Riverbend Crossings III Holdings LLC, a PAlimited liability company, in fee.

 

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