EXHIBIT 10.22
Meridian Bank Mortgage, Assignment of Leases
Meridian Bank has merged And Security Agreement
with CoreStates Bank, N.A.
I hereby certify that the address
of the Mortgagee is:
35 North Sixth Street
Reading, Pennsylvania 19601
Attention: Quality Control - SQ0725 Dept.
/s/Cheryl Davis
- -------------------------
On behalf of the Mortgagee
IF CHECKED HERE _____:
THIS IS AN OPEN-END MORTGAGE SECURING FUTURE ADVANCES UP TO A MAXIMUM PRINCIPAL
AMOUNT OF $______________ PLUS ACCRUED INTEREST AND OTHER INDEBTEDNESS AS
DESCRIBED IN 42 PA. C.S.A. 8143
This document prepared by: Tammy Walters
Tax Parcel Identification No.: L11NW3C-5-3B and L11NW3C-5-3
Mortgage Amount: $560,000.00
Date: March 26, 1998
Mortgagee: Meridian Bank
35 North Sixth Street
Reading, PA 19601
Mortgagor: Rhetech, Inc.
___ Individual(s)
___ Husband and wife
___ General partnership/joint venture State: ___________
___ Limited partnership State:___________________
X Corporation State: DE
Address of 416 South 4th Street
Mortgagor: Coopersburg, PA 18032
416 South 4th Street and 401 Linden Street
Address of Coopersburg
Mortgaged County: Lehigh
Property: State: PA
Obligations
Secured: Loan(s) in the aggregate principal amount of $______________ described
in Loan Agreement (if any) dated __________
between____________________ and Mortgagee. Note(s) dated __________ in
favor of Mortgagee in the aggregate principal amount of $ 560,000 made
by Rhetech, Inc. in favor of Mortgagee. Surety dated __________ in
favor of Mortgagee of the obligations of ____________________ in the
aggregate principal amount of $__________.
ARTICLE 1
OBLIGATIONS: SECURITY
1.1 Obligations: Loan Documents. Mortgagor shall pay and perform all of
the Obligations in accordance with the provisions of this Mortgage and the Loan
Documents (hereafter defined). The term "Obligations" means, collectively, all
of the following:
(a) The "Liabilities" of Mortgagor or any other obligor under the
Obligations Secured specifically identified above, together with all other sums
now or in the future advanced or to become due under the Obligations Secured or
other Loan Documents, or under any extensions, renewals, replacements or
modifications of, or amendments or additions to, the Obligations Secured or
other Loan Documents; whether for principal, interest, fees, charges, expenses,
or other amounts owing under reimbursement or indemnification obligations under
the Obligations Secured or other Loan Documents; whether such advances are
voluntary or obligatory and whether such obligations presently exist or come
into existence at some future time; and
(b) The performance of all of the covenants, conditions,
agreements, obligations and liabilities of Mortgagor or any other obligor or
surety under (i) the Obligations Secured, this Mortgage, and any other documents
referred to as "Loan Documents" in any of the Obligations Secured; (ii) any
other documents or instruments evidencing or securing present or future advances
made by Mortgagee to or for the benefit of Mortgagor or the Mortgaged Property
or otherwise intended to be secured by this Mortgage; and (iii) all extensions,
renewals, replacements or modifications of, or amendments or additions to, any
of the foregoing (the items described in clauses (i), (ii) and (iii) are
collectively referred to in this Mortgage as the "Loan Documents".)
1.2 Grant of Mortgage; Mortgaged Property. For the purpose of securing
payment and performance of all Obligations, Mortgagor hereby grants, conveys,
bargains, sells, and mortgages unto Mortgagee all of the following whether
presently in existence or to come into existence at some future time
(collectively, the "Mortgaged Property"):
(a) the parcel(s) of land situated generally at the Address of the
Mortgaged Property set forth above and more fully describe in Exhibit "A"
attached hereto and made a part hereof;
(b) All buildings, structures and improvements of every kind
erected on, under or over the above-described land;
(c) All fixtures, machinery, equipment and other articles of real,
personal or mixed property attached to, situated or installed in or upon, or
used in the operation or maintenance of, the Mortgaged Property or any plant or
business situated thereon, whether or not such real, personal or mixed property
is or shall be affixed to the same, and all replacements, substitutions,
accretions and proceeds of the foregoing (collectively, "Fixtures") including:
(i) all furnishings, furniture, and appliances; all articles
of interior decoration, floor, wall and window coverings; all office,
restaurant, bar, kitchen and laundry fixtures, utensils, appliances and
equipment; all supplies, tools, accessories; all storm and screen windows,
shutters, doors, awnings, signs, trees, and other plantings; and
(ii) all building service fixtures, machinery and equipment of
any kind whatsoever; all lighting, heating, ventilating, air conditioning,
refrigerating, sprinkling, plumbing, security, cleaning, incinerating, waste
disposal, communications, alarm, fire prevention and extinguishing systems,
fixtures, apparatus, machinery and equipment; all elevators, escalators, lifts,
cranes, hoists and platforms; all pipes, conduits, pumps, boilers, tanks,
motors, engines, furnaces and compressors; all dynamos, transformers,
generators; and all parts, fittings, accessories, accessions, substitutions and
replacements thereof;
(d) All leases, licenses, occupancy agreements or agreements to
lease all or any part of the Mortgaged Property and all extensions, renewals,
amendments, and modifications thereof, and any options, rights of first refusal,
or guarantees relating thereto (collectively, "Leases"); all rents, income,
receipts, revenues, security deposits, escrow accounts, reserves, issues,
profits, and payments of any kind payable under the Leases or otherwise arising
from the Mortgaged Property (collectively, the "Income"); all contract rights,
accounts receivable and general intangibles relating to the Mortgaged Property
or the use, occupancy, maintenance, construction, repair or operation thereof;
all management agreements, franchise agreements, utility agreements and
deposits, building service contracts, maintenance contracts, construction
contracts, architect's agreements, and plans and specifications; all warranties
and guaranties; and all permits, licenses and approvals;
(e) All estates, rights, privileges, easements, and appurtenances
of any kind benefitting the Mortgaged Property; all means of access to and from
the Mortgaged Property, whether public or private; all water and mineral rights;
and all rights of Mortgagor as declarant under any declaration of condominium or
association applicable to the Mortgaged Property; and
(f) All "Proceeds" of any of the above-described Mortgaged
Property, which term shall have the meaning given to it in the Uniform
Commercial Code of the state in which the Mortgaged Property is located and
shall additionally include whatever is received upon the use, lease, sale,
exchange, collection, or other utilization or any disposition of any of the
Mortgaged Property, voluntary or involuntary, whether cash or non-cash,
including proceeds of insurance and condemnation awards, rental or lease
payments, accounts, chattel paper, instruments, documents, contract rights,
general intangibles, equipment and inventory.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee to and
for the use of the Mortgagee forever.
1.3 Security Agreement. This Mortgage is also a security agreement
under the Uniform Commercial Code of the state in which the Mortgaged Property
is located. Mortgagor grants, and Mortgagee shall have and may enforce, a
security interest in all those property interests included in the Mortgaged
Property which may be "personal property" to secure payment and performance of
all Obligations. If the Mortgaged Property is located in the Commonwealth of
Pennsylvania, this Mortgage is intended to be an industrial plant mortgage
within the broadest interpretation of the "industrial plant mortgage doctrine"
under the laws of the Commonwealth of Pennsylvania. Mortgagor shall execute,
deliver, file and refile any financing statements, continuation statements, or
other security agreements Mortgagee may require to confirm the lien of this
Mortgage with respect to such property. Mortgagor irrevocably appoints Mortgagee
attorney-in-fact for Mortgagor to execute, deliver and file such instruments.
1.4 Assignment of Leases and Income.
(a) This Mortgage is also an absolute assignment to Mortgagee of
all Leases and Income. Mortgagor hereby assigns, transfers and sets over to
Mortgagee all Leases, all income and all rights of Mortgagor to enforce the
Leases and collect the income.
(b) Mortgagor Irrevocably appoints Mortgagee the attorney-in-fact
of Mortgagor to enforce the Leases and collect the income and the sole and
exclusive agent of Mortgagor to agree to any modification of the Leases. This
power is coupled with an interest and is therefore irrevocable . Mortgagor shall
notify any person which Mortgagee may from time to time specify that the income
should be paid directly to mortgagee and that any modification of the Leases
must be approved by Mortgagee.
(c) So long as Mortgagor is not in default in any respect under
the Loan Documents, Mortgagor shall have a license, revocable at the will of
Mortgagee, to enforce the Leases and collect the income subject to any
applicable provisions contained in the Loan Documents.
(d) All security deposits, prepaid rent permitted to be collected
by Mortgagor, if any (other than prepaid rent for the next succeeding calendar
month), and similar payments under any Lease shall be deposited in a separate
escrow account with Mortgagee. Mortgagor shall notify Mortgagee of the
identification of the escrow account. Such sums shall be disbursed only upon the
prior written consent of Mortgagee except such consent shall not be required
when by law or by the terms of the Lease Mortgagor is required to, and does,
return such sums to the party entitled to same under the Lease.
1.5 Open-End Mortgage. If the Mortgaged Property is located in the
Commonwealth of Pennsylvania, this is an Open-End Mortgage and shall be entitled
to all benefits as such under 42 Pa. C.S.A. 8143 (the "Open-End Mortgage
Statute").
(a) If (i) this Mortgage secures a line of credit or other loan
facility pursuant to which advances are made from time to time by Mortgagee to
Mortgagor, and (ii) Mortgagee receives written notice pursuant to Section
8143(b) of the Open-End Mortgage Statute from a holder of a lien or encumbrance
on the Mortgaged Property which is subordinate to the lien of the Mortgage, then
and notwithstanding any provision to the contrary contained in any Loan
Document, Mortgagor agrees that Mortgagee shall not be responsible to make any
further advances to Mortgagor (and Mortgagee is released from all liability for
failure to make such advances) if Mortgagee determines in its sole discretion
that any such advance requested by Mortgagor could be construed to be an
unobligated advance under Section 8143(b) of the Open-End Mortgage Statute.
(b) If (i) this Mortgage secures a loan facility the proceeds of
which are used to provide funds to pay toward all or part of the cost of
completing any erection, construction, alteration or repair of any part of the
Mortgaged Property, and (ii) Mortgagee receives written notice pursuant to
Section 8143(b) of the Open-End Mortgage Statute from a holder of a mechanic's
lien for labor performed or to be performed or materials furnished or to be
furnished for the erection, construction, alteration or repair of any part of
the Mortgaged Property, then and notwithstanding any provision to the contrary
contained in any Loan Document, Mortgagor agrees that Mortgagee shall have the
right to suspend (until such time as the lien is fully released) any further
advances to Mortgagor (and Mortgagee is released from all liability for failure
to make such advances) except advances which Mortgagee determines in its sole
discretion are for the purpose of paying toward all or part of the cost of
completing any erection, construction, alteration or repair of any part of the
Mortgaged Property the financing of which, in whole or in part, the Mortgage was
given to secure.
(c) If Mortgagor should at any time elect to limit the Obligations
secured by this Mortgage pursuant to Section 8143(c) of the Open-End Mortgage
Statute, Mortgagor agrees that notice of such election shall (i) not be
effective unless and until it is served upon Mortgagee in accordance with the
requirements of Section 8143(d) of the Open-End Mortgage Statute and fully
complies with the requirements for the giving of notices under any Loan
Document; (ii) release Mortgagee from all obligation to make any further
advances under the Loan Documents notwithstanding anything to the contrary
contained in such notice or the Loan Documents; (iii) constitute, at the
election of Mortgagee, an Event of Default under the Loan Documents; and (iv)
not be effective to limit Mortgagor's liability for payment and performance of
all Obligations for which Mortgagor is responsible under this Mortgage or the
other Loan Documents (including all reimbursement and indemnification
agreements) whether such Obligations arise prior or subsequent to the date of
such notice.
1.6 Purchase Money Mortgage. If all or any part of the Obligations
secured by this Mortgage were used in whole or in part to fund the acquisition
of all or any part of the Mortgaged Property, this Mortgage shall constitute a
purchase money mortgage and shall be entitled to all benefits as such under
applicable laws of the state in which the Mortgaged Property is located.
ARTICLE II
TITLE MATTERS
2.1 Warranty of Title. Until the Obligations are fully satisfied,
Mortgagor represents, warrants and covenants that:
(a) Mortgagor has good and marketable fee simple absolute title to
the Mortgaged Property subject only to those exceptions to title more
particularly describe in the title commitment issued to, and accepted by,
Mortgagee in connection with this transaction or described in Exhibit "B"
attached hereto, (the "Permitted Encumbrances") and Mortgagor shall defend the
validity, priority and enforceability of the lien of this Mortgage against the
claims of all persons excepting only those claiming under Permitted
Encumbrances;
(b) Mortgagor has full power and lawful authority to subject the
Mortgaged Property to the lien of this Mortgage;
(c) The execution, delivery and performance of this Mortgage and
the other Loan Documents will not contravene any Legal Requirements (hereafter
defined) or any agreement, document or instrument to which Mortgagor is a party
or by which Mortgagor or the Mortgaged Property is bound;
(d) Mortgagor shall make, execute, acknowledge and deliver all
such further or other deeds, documents, instruments or assurances and cause to
be done all such further acts and things as may at any time be required by
Mortgagee to confirm and fully protect the lien and priority of this Mortgage;
and
(e) Mortgagor shall make such payments, when due, and perform all
obligations as are required under any Permitted Encumbrances affecting the
Mortgaged Property.
2.2 No Transfer. Without the prior written consent of Mortgagee in each
instance, which consent may be given or withheld in Mortgagee's sole discretion,
Mortgagor will abstain from, and will not cause or permit, any transfer of title
to the Mortgaged Property or any part thereof, or any transfer of ownership
interests in Mortgagor (if Mortgagor is a partnership, joint venture or
corporation), voluntarily or by operation of law, nor shall Mortgagor enter into
any agreement or transaction to do or accomplish in form or substance any of the
foregoing.
2.3 No Other Financing or Liens. Without the prior written consent of
Mortgagee in each instance, which consent may be given or withheld in
Mortgagee's sole discretion, Mortgagor shall not create or cause or permit to
exist any lien on the Mortgaged Property whether superior to or subject to the
lien of this Mortgage except the Permitted Encumbrances (if any) and such other
liens or security interests as are expressly and specifically agreed to be
permitted upon the Mortgaged Property by Mortgagee under the Loan Documents.
2.4 Leases. Mortgagor represents and warrants that there are no Leases
affecting the Mortgaged Property other than the Leases (if any) listed in the
schedule of Leases and Income delivered by Mortgagor to Mortgagee in connection
with this transaction. Mortgagor shall not enter into any Leases without the
prior written consent of Mortgagee being obtained in each instance unless all of
the following are satisfied; (a) Mortgagee has approved a standard form of lease
and a then-current schedule of minimum rental terms for the Mortgaged Property;
(b) the Leases are in accordance with the pre-approved lease form and rent
schedule without material variation; and (c) Mortgagor provides to Mortgagee
copies of all executed Leases within ten (10) days after execution.
ARTICLE III
OBLIGATIONS REGARDING MORTGAGED PROPERTY
3.1 Legal Requirements Generally. Mortgagor represents and warrants
that, to the best of Mortgagor's knowledge, the Mortgaged Property is, as of the
date of this Mortgage, in compliance with Legal Requirements (hereafter
defined). Mortgagor shall promptly comply with all present and future laws,
statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, restrictions and requirements (collectively "Legal Requirements")
of the United States of America, the state in which the Mortgaged Property is
located and any political subdivision thereof or any town, city, county, or
municipality in which the Mortgaged Property is located or any agency,
department, bureau, board, commission or instrumentality of any of the foregoing
now existing or hereafter created (individually, a "Government Authority" and,
collectively, "Government Authorities") having jurisdiction over Mortgagor or
the Mortgaged Property or the construction, use, occupancy, operation,
maintenance, or improvement of the Mortgaged Property, whether foreseen or
unforeseen, ordinary or extraordinary.
3.2 Land Use Approvals. Mortgagor represent and warrants to Mortgagee
that the Mortgaged Property is and shall remain one or more zoning lots separate
and apart from all other premises and Mortgagor shall not, by any act or
omission, impair the integrity of the Mortgaged Property as such separate zoning
lot or lots. Mortgagor shall not, without the prior written consent of
Mortgagee, submit or cause to be submitted to any Governmental Authority an
application for zoning, subdivision or development approval affecting the
Mortgaged Property if any of the following would result from such proposed
zoning change, subdivision or development: (a) the separate transfer, use and
ownership of the Mortgaged Property is not permitted as a matter of right under
applicable Legal Requirements; (b) the use of the Mortgaged Property as of the
date of this Mortgage is no longer permitted as a matter of right under
applicable Legal Requirements; or (c) any portion of the Mortgaged Property is
used to fulfill a Legal Requirement of other property not subject to the lien of
this Mortgage.
3.3 Environmental Matters.
(a) Mortgagor represents and warrants that neither Mortgagor nor,
to the best of its knowledge, any other person has (i) used, installed or
disposed of any Hazardous Materials (hereafter defined) on, from, or affecting
the Mortgaged Property except in full compliance with Applicable Environmental
Laws (hereafter defined); or (ii) received any notice from any Governmental
Authority with regard to Hazardous Materials on, from or affecting the Mortgaged
Property.
(b) Mortgagor shall not use the Mortgaged Property, nor allow it
to be used, to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Materials except in full
compliance with Applicable Environmental Laws. Mortgagor shall not cause or
permit, as a result of any intentional or unintentional act or omission on the
part of Mortgagor or any other person, a release of Hazardous Materials onto,
from or affecting the Mortgaged Property or any other use, installation, or
disposition of Hazardous Materials in violation of Applicable Environmental
Laws. Mortgagor shall comply, and enforce compliance by all tenants and
subtenants, with all Applicable Environmental Laws and shall keep the Mortgaged
Property free and clear of any liens imposed pursuant to any Applicable
Environmental Laws.
(c) If Mortgagor receives any notice from any Governmental
Authority with regard to Hazardous Materials on, from or affecting the Mortgaged
Property, or any notice of violation of Applicable Environmental Laws, Mortgagor
shall promptly notify Mortgagee. Mortgagor shall conduct and complete all
investigations, studies, sampling, and testing, and all remedial, removal, and
other actions necessary to clean up and remove all Hazardous Materials on, from
or affecting the Mortgaged Property in accordance with all Applicable
Environmental Laws and to the satisfaction of Mortgagee.
(d) The term "Applicable Environmental Laws" shall mean, without
limitation, all Legal Requirements of any Governmental authority pertaining to
the preservation or enhancement of the quality of the environment or regulating
or restricting the use, transfer, storage or remediation of Hazardous Materials
including the Comprehensive Environmental Response, Compensation, and Liability
act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et
seq.), the Pennsylvania Hazardous Sites Cleanup Act (35 P.S. 6020.101 et seq.),
the New Jersey Spill Compensation and Control Act, as amended (N.J.S.A.
58:10-23.11 et seq.) and the rules, regulations adopted and publications
promulgated pursuant thereto at any time. The term "Hazardous Materials" shall
mean, without limitation, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material containing asbestos, or any other substance
or material regulated under any Applicable Environmental Laws.
3.4 General Obligations. Until the Obligations are fully satisfied,
Mortgagor shall:
(a) Perform all maintenance, repair, restoration and rebuilding
required to keep the Mortgaged Property in good repair, order and condition in
full compliance with the requirements of the Loan Documents, any Leases
affecting the Mortgaged Property and all Legal Requirements;
(b) Complete any improvements to the Mortgaged Property required
under the Loan Documents, any Leases affecting the Mortgaged Property, or
required by any Governmental Authority or Insurer Insuring the Mortgaged
Property, in a good and workmanlike manner and free of mechanics' liens;
(c) Permit, and cause any lessee or occupant of the Mortgaged
Property to permit, Mortgagee and its agents and representatives, to enter upon
the Mortgaged Property at any reasonable time to appraise and photograph the
Mortgaged Property and to inspect for compliance with Legal Requirements,
Insurance requirements, and the Obligation of Mortgagor under this Mortgage and
the other Loan Documents;
(d) Make the books and accounts relating to the Mortgaged Property
available for inspection by Mortgagee, or its representatives, upon request at
any reasonable time; and
(e) Deliver to Mortgagee within ninety (90) days after the end of
each fiscal year of Mortgagor, or on a more frequent basis if requested by
Mortgagee, a schedule of Leases and Income as of the end of the preceding year,
an income and expense statement for the Mortgaged Property as of the end of the
preceding year, and a projected Income and expense statement for the Mortgaged
Property for the then-current fiscal year.
3.5 General Restrictions. Until the Obligations are fully satisfied,
Mortgagor shall not, without prior written consent of Mortgagee being obtained
in each instance:
(a) Abandon the Mortgaged Property or any portion thereof or allow
the same to become vacant;
(b) Commit or suffer waste with respect to the Mortgaged Property;
(c) Impair or diminish the value or integrity of the Mortgaged
Property or the priority or security of the lien of this Mortgage;
(d) Remove, demolish or materially alter any of the Mortgaged
Property except that Mortgagor shall have the right to remove and dispose of,
free of the lien of this Mortgage, such Fixtures as may, from time to time,
become worn out or obsolete, provided that, simultaneously with or prior to such
removal, any such Fixtures shall be replaced with other Fixtures which shall
have a value and utility at least equal to that of the replaced Fixtures and, by
such removal and replacement, Mortgagor shall be deemed to have subjected such
replacement Fixtures to the lien and priority of this Mortgage;
(e) Make, install or permit to be made or installed, any additions
or improvements to the Mortgaged property except in a good and workmanlike
manner, free of mechanic's liens, in compliance with Legal Requirements, and in
accordance with plans and specifications approved by Mortgagee; or
(f) Make, suffer or permit any nuisance to exist on the Mortgaged
Property or any portion thereof.
3.6 Required Notices. Mortgagor shall notify Mortgagee promptly of the
occurrence of any of the following:
(a) A fire or other casualty causing damage to the Mortgaged
Property,
(b) A pending or threatened condemnation of the Mortgaged
Property,
(c) A violation of a Legal Requirement or other notice from or to
a Governmental Authority relating to the Mortgaged Property,
(d) Receipt or giving of any notice of default or cancellation
under any Lease of all or a material portion of the Mortgaged Property,
(e) Commencement of any litigation affecting the Mortgaged
Property,
(f) Discovery, discharge or release of any Hazardous Material for
which Mortgagor is or may be responsible under any Applicable Environmental
Laws;
(g) The existence of any event or condition which presents a risk
of creating material liability in Mortgagor under ERISA (Public Law 93-406, as
amended); or
(h) The occurrence of a default under, or the receipt or giving of
any notice under, any Permitted Encumbrance.
ARTICLE IV
TAXES AND INSURANCE
4.1 Real Estate Taxes and Assessments.
(a) Mortgagor shall pay when due and before interest or penalties
commence to accrue thereon, all taxes, assessments, water and sewer rents,
levies, encumbrances and all other charges or claims of any nature and kind,
whether public or private, which may be assessed, levied, imposed, suffered,
placed or filed at any time against the Mortgaged Property or any part thereof
or which by any present or future law may have priority (either in lien or in
distribution out of the proceeds of any sale) over the lien of this Mortgage
(individually, an "imposition" and, collectively, "impositions").
(b) Mortgagor shall produce to Mortgagee, not later than the last
date any such imposition is due and payable without interest or penalty,
official receipts evidencing payment of such imposition. If Mortgagor is not in
default under this Mortgage or any Loan Document and in good faith and by
appropriate legal action shall contest the validity or amount of any imposition
and shall have established a reserve for the payment thereof in such form and
amount as Mortgagee may require (including any interest and penalties which may
be payable in connection therewith), then Mortgagor shall not be required to pay
the imposition or to produce the receipts while the reserve is maintained and so
long as the contest operates to prevent collection, is maintained and prosecuted
with diligence, and shall not have been terminated or discontinued adversely to
Mortgagor.
4.2 Taxes on Mortgagee. If any Governmental Authority shall levy,
assess or charge any tax, assessment or imposition upon this Mortgage or any
other Loan Document (including any requirement to have affixed to this Mortgage
any revenue, documentary or similar stamps) or upon the interest of Mortgagee in
the Mortgaged Property by reason of this Mortgage or any other Loan Document,
Mortgagor shall pay the same directly to such Governmental Authority as an
imposition. If Mortgagor is not legally permitted to pay such imposition or to
reimburse Mortgagee for amounts advanced on account of such payment, then
Mortgagee may declare the entire amount of the Obligations immediately due and
payable on demand.
4.3 Corporate or Partnership Mortgagor. If Mortgagor (or any successor
or grantee of Mortgagor) is a corporation or partnership, Mortgagor shall at all
times until the Obligations are satisfied in full:
(a) Keep in effect and in good standing its existence and rights
as a corporation or partnership, as the case may, be under the laws of the state
of its incorporation or constitution and its right to own property and transact
business in the state in which the Mortgaged Property is situated; and
(b) File returns for all federal, state and local taxes with the
proper Governmental Authorities, and pay, when due and payable and before
interest or penalties are due thereon, all taxes owing by Mortgagor to any
Governmental Authorities.
4.4 Insurance Coverages. Until the Obligations are fully satisfied,
Mortgagor shall maintain and keep in force the following policies of insurance
with respect to the Mortgaged Property:
(a) Insurance against loss or damage to the Mortgaged Property by
fire and any of the risks covered by insurance of the type commonly known as
"all-risk coverage," in an amount not less than the full replacement value
(evidenced by a "Replacement Cost Endorsement") of the Mortgaged Property;
(b) During the course of any construction or repair of any
improvements on the Mortgaged Property, builder's completed value risk insurance
against "all risks of physical loss," including collapse and transit coverage,
during construction of such improvements, in non-reporting form;
(c) Boiler and machinery insurance (to the extent the Mortgaged
Property includes items covered by such insurance), in such amounts as are
reasonably satisfactory to Mortgagee;
(d) Coverage against sprinkler leakage;
(e) Vandalism and malicious mischief insurance;
(f) Comprehensive public liability insurance on an "occurrence
basis" against claims for personal injury including bodily injury, death or
property damage occurring on or about the Mortgaged Property and the adjoining
streets, sidewalks and passageways, with minimum protection to a limit of not
less than $1,000,000 (or such higher amounts as are required under any other
Loan Document) with respect to personal injury or death to any one or more
persons or damage to property;
(g) Worker's compensation insurance (including employer's
liability insurance) for all employees of Mortgagor engaged on or with respect
to the Mortgaged Property in such amount as is reasonably satisfactory to
Mortgagee, or, if such limits are established by law, in such amounts;
(h) Flood insurance, in accordance with National Flood Insurance
Act of 1968, as amended by the Flood Disaster Protection Act of 1973, if any
portion of the Mortgaged Property lies within a flood hazard area designated by
the Department of Housing and Urban Development, Federal Insurance
Administration as a "Flood Hazard Area";
(i) Business interruption and/or rental loss coverage for a period
equal to the reasonable period of time required to rebuild and restore the
Mortgaged Property upon the occurrence of a substantial destruction; and
(j) Such other insurance, and in such amounts, as may from time to
time be required by Mortgagee.
4.5 Policy Requirements. The insurance coverages required above shall
be insured under policies; (a) in form satisfactory to Mortgagee; (b) issued by
companies satisfactory to Mortgagee; (c) endorsed with a standard mortgagee
clause in favor of the Mortgagee providing not less than thirty days' notice to
Mortgagee of any cancellation or change in coverage; (d) endorsed to name
Mortgagee as additional insured and, subject only to Permitted Encumbrances (if
any), as loss payee; and (e) not subject to contribution or co-insurance.
Certificates of Insurance, addressed to Mortgagee, evidencing such insurance
coverage, may be delivered to Mortgagee in lieu of the policies therefor, but
only if Mortgagor provides to Mortgagee copies of such policies. Certificates
shall be delivered to Mortgagee on or before the date of this Mortgage and,
thereafter, at least thirty (30) days before expiration of the existing
policies. If any insurance required under this Mortgage is cancelled, expires,
becomes void or voidable or otherwise becomes unsatisfactory to Mortgagee,
Mortgagor shall place or cause to be placed new insurance on the Mortgaged
Property reasonably satisfactory to Mortgagee. In the event of any loss,
Mortgagee may make proof of loss if not made promptly by Mortgagor. Each
insurance company concerned is hereby authorized and directed to make payment
under such insurance including return of unearned premiums, directly to
Mortgagee instead of to Mortgagor and Mortgagee jointly, and Mortgagor appoints
Mortgagee, irrevocably, as Mortgagor's attorney-in-fact to endorse any draft
therefor.
4.6 Installments for Insurance, Taxes and Other Charges. Without
limiting the effect of the other provisions of this Article, Mortgagor, if
required by Mortgagee, shall pay to Mortgagee monthly an amount equal to
one-twelfth (1/12) of the annual amount of all impositions and premiums for
insurance policies required under this Article plus any additional sums
necessary to pay, or establish adequate reserves for, the payment of, such
premiums and impositions as and when due. The amount so paid shall be security
for the premiums and impositions and shall be used in payment thereof if
Mortgagor is not otherwise in default under this or any other Loan document. No
amount so paid shall be deemed to be trust funds but may be commingled with
general funds of Mortgagee and no interest shall be payable thereon. Upon the
occurrence of an Event of Default under this Mortgage or any Loan Document,
Mortgagee shall have the right, at its election, to apply any amount so held
against the Obligations. At Mortgagee's option, Mortgagee from time to time may
waive, and after any such waiver may reinstate, the provisions of this section
requiring installment payments.
ARTICLE V
CASUALTY; CONDEMNATION
5.1 Casualty. If the Mortgaged Property is damaged by fire or other
casualty, Mortgagor shall promptly repair and restore the same to its condition
prior to the damage. If, and only for so long as, the following terms and
conditions are fully satisfied by Mortgagor, Mortgagee shall release insurance
proceeds for repair and restoration of the Mortgaged Property; otherwise, and to
the extent of any excess proceeds, Mortgagee shall have the right to apply the
proceeds toward reduction of the Obligations;
(a) No default under this or any other Loan Document shall have
occurred and be continuing uncured;
(b) Mortgagor shall have delivered evidence satisfactory to
Mortgagee that the Mortgaged Property can be fully repaired and restored within
a period of time during which all payments coming due under the Obligations are
fully covered by the proceeds of business interruption or rental loss insurance
applicable to the loss or damage to the Mortgaged Property;
(c) No holder of a Permitted Encumbrance has a right to apply
insurance proceeds to the obligations secured by such Permitted Encumbrance or,
if it does, the holder has waived in writing its right to do so;
(d) No lease is cancellable by the lessee on account of the
casualty or, if it is, the lessee has waived in writing its right to cancel;
(e) The work is performed by a reputable general contractor
satisfactory to Mortgagee under a fixed price or guaranteed maximum price
contract satisfactory to Mortgagee, in accordance with plans and specifications
satisfactory to Mortgagee and in compliance with all Legal Requirements, and no
work shall commence until waivers of mechanics' liens have been filed by the
general contractor and all those claiming by, through, or under the general
contractor;
(f) Mortgagor shall have deposited with Mortgagee for disbursement
in connection with the restoration the greater of (i) the applicable deductible
under the insurance policies covering the loss; or (ii) the amount by which the
cost of restoration is estimated by Mortgagee to exceed the insurance proceeds
available for restoration;
(g) The insurance proceeds are held by Mortgagee (or an escrowee
satisfactory to Mortgagee) in trust, to be disbursed periodically as the work
progresses in amounts not exceeding 90% of the value of labor and materials
incorporated into the restoration. The remaining 10% will be released upon final
completion of the work in accordance with the aforesaid plans and
specifications, and upon a receipt of a release of liens from all contractors
and subcontractors engaged in the restoration; and
(h) Mortgagor has paid as and when due all of Mortgagee's costs
and expenses incurred in connection with the collection of insurance proceeds,
approval of plans, charges of Mortgagee's inspection representative and such
reasonable fee as may be charged by Mortgagee to monitor the restoration and
disburse the insurance proceeds.
5.2 Condemnation.
(a) In the event of any condemnation or taking of any part of the
Mortgaged Property by eminent domain, alteration of the grade of any street, or
other injury to or decrease in the value of the Mortgaged Property by any public
or quasi-public authority or corporation, all proceeds (that is, the award or
agreed compensation for the damages sustained) allocable to Mortgagor, after
deducting therefrom all costs and expenses (regardless of the particular nature
thereof and whether incurred with or without suit) including attorney's fees
incurred by Mortgagee in connection with the collection of such proceeds, shall
be paid to Mortgagee and applied, at Mortgagee's election, (i) toward
restoration of the Mortgaged Property (in which case the terms and conditions
applicable to restoration in the case of casualty shall apply); or (ii) to the
Obligations. No settlement for damages sustained shall be made by Mortgagor
without Mortgagee's prior written approval.
(b) If prior to the receipt of the proceeds by Mortgagee, the
Mortgaged Property shall have been sold on foreclosure of this Mortgage,
Mortgagee shall have the right to receive the proceeds to the extent of:
(i) the full amount of all such proceeds if Mortgagee is the
successful purchaser at the foreclosure sale, or
(ii) if anyone other than Mortgagee is the successful
purchaser at the foreclosure sale, in addition to the net sale proceeds to be
received by Mortgagee in connection with the sale, any deficiency (as
hereinafter defined) due to Mortgagee in connection with the foreclosure sale,
with legal interest thereon, and reasonable counsel fees, costs and
disbursements incurred by Mortgagee in connection with collection of such
proceeds of condemnation and the establishment of such deficiency. For purposes
of this section, the word "deficiency" shall be deemed to mean the difference
between (A) the net sale proceeds actually received by Mortgagee as a result of
such foreclosure sale less any costs and expenses incurred by Mortgagee in
connection with enforcement of its rights under the Loan Documents, and (B) the
aggregate amount of all sums which Mortgagee is entitled to collect under the
Loan Documents.
(c) Mortgagee shall have the right to prosecute to final
determination, or settlement, an appeal or other appropriate proceedings in the
name of Mortgagee or Mortgagor, for which Mortgagee will then be appointed as
attorney-in-fact for Mortgagor, which appointment, being for security, is
irrevocable. In that event, the expenses of the proceedings, including
reasonable counsel fees, shall be paid first out of the proceeds, and only the
excess, if any, paid to Mortgagee shall be applied to the Obligations.
(d) Nothing herein shall limit the rights otherwise available to
Mortgagee, at law or in equity, including the right to intervene as a party to
any condemnation proceeding.
ARTICLE VI
DEFAULTS; REMEDIES
6.1 Right to Make Advances. If Mortgagor should fail to pay or perform
any of its Obligations with respect to the Mortgaged Property as required under
Article III and Article IV of this Mortgage, or otherwise fails to pay or
perform any of its other Obligations under this or any other Loan Document, then
Mortgagee, at its election, shall have the right, but not the obligation, to
made any payment or expenditure and to take any action which Mortgagor should
have made or taken or which Mortgagee deems advisable to protect the security of
this Mortgage or the Mortgaged Property. Such action shall be without prejudice
to any of Mortgagee's rights or remedies available under this Mortgage or the
other Loan Documents or otherwise at law or in equity. All such sums, as well as
costs and expenses, advanced by Mortgagee shall be due immediately from
Mortgagor to Mortgagee, shall become part of the Obligations secured by this
Mortgage and the other Loan Documents, and shall bear interest at the applicable
rate provided in the Loan Documents in effect after maturity or default (the
"Default Rate") until repayment in full to Mortgagee.
6.2 Events of Default. The occurrence of any one or more of the
following events shall, at the election of Mortgagee, constitute an Event of
Default under this Mortgage:
(a) Any Event of Default under any other Loan Document;
(b) Failure to pay any sum required to be paid under this Mortgage
as and when due;
(c) Any breach of warranty or other violation of any provision
contained in Article II of this Mortgage;
(d) The commencement by Mortgagor of any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under any state or
federal bankruptcy or insolvency law or any dissolution or liquidation
proceeding;
(e) Any bankruptcy, reorganization, debt arrangement, or other
case or proceeding under any state or federal bankruptcy or insolvency law, or
any dissolution or liquidation proceeding, involuntarily commenced against or in
respect of Mortgagor, or an order for relief entered in such proceeding and not
dismissed within the period of time, if any, expressly permitted by Mortgagee
under the Loan Documents; or
(f) Nonperformance of, or noncompliance with, any of the
agreements, covenants, conditions, warranties, representations or other
provisions contained in this Mortgage (if and only to the extent not included in
any of the occurrences listed above), which nonperformance or noncompliance is
not cured and remedied within fifteen (15) days after notice thereof is given to
Mortgagor.
6.3 Remedies; Execution. Upon the occurrence of an Event of Default,
Mortgagee shall have the right to accelerate all Obligations (including interest
thereon at the Default Rate) pursuant to the terms of the Loan Documents and to
enforce its rights under this Mortgage and the other Loan Documents by
exercising such remedies as are available to Mortgagee under applicable law,
either by suit in equity or action at law, or both, whether for specific
performance of any provision contained in this Mortgage or any of the other Loan
Documents or in aid of the exercise or any power granted in this Mortgage or the
other Loan Documents.
(a) Mortgagee shall have the right to obtain judgment for the
Obligations (including all amounts advanced or to be advanced by Mortgagee under
Section 6.1 above, all costs and expenses of collection and suit, including any
bankruptcy or insolvency proceeding affecting Mortgagor, and reasonable
attorneys' fees incurred in connection with any of the foregoing) together with
interest on such judgment at the Default Rate until payment in full is received
by Mortgagee and Mortgagee shall have the right to obtain execution upon the
Mortgaged Property on account of such judgment.
(b) Mortgagee shall have the right to institute an action of
mortgage foreclosure against the Mortgaged Property or take such other action
for realization on the security intended to be provided under Article I of this
Mortgage as applicable law or the provisions of the Loan Documents may allow.
6.4 Remedies; Collection of Income. Mortgagee may, with or without
entering into possession of the Mortgaged Property, and with or without legal
action, collect all income (which term shall also include amounts determined by
Mortgagee as fair rental value for use and occupation of the Mortgaged Property
by any person, including Mortgagor) and, after deducting all costs of collection
and administration expense, apply the net income to the Obligations or any or
all of the following in such order and amounts as Mortgagee, in Mortgagee's sole
discretion, may elect: the payment of any sums due, or accumulation of necessary
reserves for, payment of all costs and expenses arising from or incurred in
connection with (a) the preservation and protection of the validity and priority
of the lien of this Mortgage; (b) the preservation and protection of the
Mortgaged Property; (c) compliance with Legal Requirements; or (d) fulfilling
any Obligations of Mortgagor under the Permitted Encumbrances, the Leases, this
Mortgage or the Loan Documents.
6.5 Remedies; Possession. Mortgagee may, with or without legal action,
take possession and control of the Mortgaged Property to the exclusion of
Mortgagor and all others excepting only those claiming under Permitted
Encumbrances. Mortgagee shall have the authority while so in possession to
insure (at Mortgagor's expense) against all risks by reason of having taken such
possession and Mortgagor will transfer and deliver to the Mortgagee all policies
of insurance upon the Mortgaged Property not theretofore transferred and
delivered to Mortgagee. FOR THE PURPOSE OF OBTAINING POSSESSION OF THE MORTGAGED
PROPERTY UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, MORTGAGOR HEREBY
AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD IN THE STATE IN
WHICH THE MORTGAGED PROPERTY IS LOCATED OR ELSEWHERE AS ATTORNEY FOR MORTGAGOR
AND ALL PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR, TO SIGN AN AGREEMENT FOR
ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION IN EJECTMENT FOR POSSESSION
OF THE MORTGAGED PROPERTY AND TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
MORTGAGOR, AND ALL PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR IN FAVOR OF
MORTGAGEE FOR RECOVERY BY MORTGAGEE OF POSSESSION THEREOF, FOR WHICH THIS
MORTGAGE, OR A COPY THEREOF VERIFIED BY AFFIDAVIT, SHALL BE SUFFICIENT WARRANT;
AND THEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE
MORTGAGED PROPERTY, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT
ANY STAY OF EXECUTION. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED IT
SHALL BE DISCONTINUED, OR POSSESSION OF THE MORTGAGED PROPERTY SHALL REMAIN IN
OR BE RESTORED TO MORTGAGOR, MORTGAGEE SHALL HAVE THE RIGHT FOR THE SAME DEFAULT
OR ANY SUBSEQUENT DEFAULT TO BRING ONE OR MORE FURTHER AMICABLE ACTIONS AS ABOVE
PROVIDED TO RECOVER POSSESSION OF THE MORTGAGED PROPERTY. MORTGAGEE MAY BRING AN
AMICABLE ACTION IN EJECTMENT BEFORE OR AFTER THE INSTITUTION OF PROCEEDINGS TO
FORECLOSE THIS MORTGAGE OR TO ENFORCE ANY LOAN DOCUMENT, OR AFTER ENTRY OF
JUDGMENT THEREON OR ON ANY LOAN DOCUMENT, OR AFTER A SHERIFF'S SALE OF THE
MORTGAGED PROPERTY IN WHICH MORTGAGEE IS THE SUCCESSFUL BIDDER, IT BEING THE
UNDERSTANDING OF THE PARTIES THAT THE AUTHORIZATION TO PURSUE SUCH PROCEEDINGS
FOR OBTAINING POSSESSION IS AN ESSENTIAL PART OF THE REMEDIES FOR ENFORCEMENT OF
THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS, AND SHALL SURVIVE ANY EXECUTION SALE
TO MORTGAGEE.
BY AGREEING THAT MORTGAGEE MAY CONFESS JUDGMENT HEREUNDER MORTGAGOR,
FOR ITSELF AND ANY OTHER PERSONS OR ENTITIES NOW OR HEREAFTER IN POSSESSION OF
ALL OR ANY PART OF THE MORTGAGED PROPERTY, WAIVES THE RIGHT TO NOTICE IN A PRIOR
JUDICIAL PROCEEDING TO DETERMINE THEIR RIGHTS AND LIABILITIES AND THE
OPPORTUNITY TO RAISE ANY DEFENSE, SET OFF, COUNTERCLAIM OR OTHER CLAIM AGAINST
SUCH ACTION BY MORTGAGEE.
6.6 Remedies; Repossession. Mortgagee shall have the right to take
possession of any portion of the Mortgaged Property constituting fixtures or
personal property subject to the Uniform Commercial Code of the state in which
the Mortgaged Property is located, and any records pertaining thereto. Mortgagee
shall have the right to use, operate, manage, lease or otherwise control the
Mortgaged Property in any lawful manner and, in its sole discretion but without
any obligation to do so, insure, maintain, repair, renovate, alter or remove
such Mortgaged Property; use, in connection with any assembly, use or
disposition of such Mortgaged Property any trade mark, trade name, trade style,
copyright, brand, patent right or technical process used or utilized by
Mortgagor; sell or otherwise dispose of all or any of such Mortgaged Property at
any public or private sale at any time or times without advertisement or demand
upon or notice to Mortgagor, all of which are expressly waived to the extent
permitted by law, with the right of Mortgagee or its nominee to become purchaser
at any sale (unless prohibited by statute) free from any equity of redemption
and from all other claims, and after deducting all legal and other expenses for
maintaining or selling such Mortgaged Property, and all attorneys' fees, legal
or other expenses for collection, sale and delivery, apply the remaining
proceeds of any sale to pay (or hold as a reserve against) the Obligations and
exercise all rights and remedies of a secured party under the Uniform Commercial
Code of the state in which the Mortgaged Property is located or any other
applicable law.
6.7 Remedies; Actions Prior to Acceleration. Mortgagee shall have the
right, from time to time, to bring an appropriate action or actions to recover
any sums required to be paid by Mortgagor under the terms of this Mortgage, as
they become due, without regard to whether or not the Obligations shall be due
and payable in full, and without prejudice to the right of Mortgagee thereafter
to bring an action of mortgage foreclosure, or any other action, for any default
by Mortgagor existing at the time the earlier action was commenced.
6.8 No Marshalling. Any of the Mortgaged Property sold pursuant to any
writ of execution issued on a judgment obtained on the Obligations or pursuant
to any other judicial proceeding relating to the Loan Documents or this
Mortgage, may be sold in one parcel, as an entirety, or in such parcels, and in
such manner or order as Mortgagee, in its sole discretion, may elect.
6.9 Rights and Remedies Cumulative.
(a) All rights and remedies of Mortgagee as provided in this
Mortgage and the other Loan Documents shall be cumulative and concurrent, may be
pursued separately, successively or together against Mortgagor or the Mortgaged
Property, or both, at the sole discretion of Mortgagee and may be exercised as
often as occasion therefor shall arise. The failure to exercise any such right
or remedy shall in no event be construed as a waiver or release thereof.
(b) Any failure by Mortgagee to insist upon strict performance by
Mortgagor of any of the terms and provisions of this Mortgage or the other Loan
Documents shall not be deemed to be a waiver of any of the terms or provisions
of this Mortgage or the other Loan Documents and Mortgagee shall have the right
thereafter to insist upon strict performance by Mortgagor of any and all of
them.
ARTICLE VII
MISCELLANEOUS
7.1 Costs, Fees and Expenses. If the Mortgagee becomes a party to any
suit or proceeding affecting the Mortgaged Property, title thereto, the lien
created by this Mortgage or Mortgagee's interest therein, or in the event of the
commencement of any bankruptcy or insolvency proceedings involving Mortgagor, or
if Mortgagee engages counsel to collect or to enforce performance of the
Obligations, Mortgagee's reasonable counsel fees, and all other costs and
expenses paid or incurred by Mortgagee, including reasonable fees of appraisers,
accountants, consultants, and other professionals, costs of title and lien
searches, and environmental assessments, investigations, and other environmental
costs and expenses, whether or not suit is instituted, shall be paid to
Mortgagee, on demand, with interest at the Default Rate and until paid they
shall be deemed to be part of the Obligations secured by this Mortgage.
7.2 Indemnity. Mortgagor shall indemnify, defend and hold Mortgagee
harmless from and against any claims, expenses, demands, losses, costs, fines or
liabilities of any kind (including those involving death, personal injury or
property damage and including reasonable attorneys' fees and costs) arising from
or in any way related to the failure of Mortgagor to comply with, or the failure
of the Mortgaged Property to be kept in compliance with, the Legal Requirements,
Applicable Environmental laws, the Leases and the Permitted Encumbrances. The
Indemnification of Mortgagor under this section shall survive the release or
termination of this Mortgage and shall remain effective notwithstanding any
foreclosure of this Mortgage or other execution against the Mortgaged Property
or acceptance of a deed in lieu of foreclosure. The indemnification agreement of
Mortgagor under this section is specifically excepted from any limitation of
liability provision contained in this or any other Loan Document.
7.3 Declaration of No Set-Off. Within ten (10) days after requested to
do so by Mortgagee, Mortgagor shall certify to Mortgagee or to any proposed
assignee of this Mortgage or participant in the Obligations in a writing duly
acknowledged, the amount of principal, interest and other charges then owing on
the Obligations secured by this Mortgage and whether there are set-offs or
defenses against them.
7.4 Communications. All notices required under this Mortgage shall be
in writing and shall be delivered in accordance with the applicable provisions
contained in the Obligations Secured. If the Obligations Secured do not contain
any applicable provisions for the giving of notices, then notices under this
Mortgage shall be in writing and shall be given by either (a) hand-delivery; (b)
first class mail (postage prepaid); (c) reliable overnight commercial courier
(charges prepaid); or (d) telecopy or other means of electronic transmission, if
confirmed promptly by any of the methods specified in clauses (a), (b) and (c)
of this sentence to the parties at their respective addresses set forth at the
beginning of this Mortgage. A party may change its address by giving written
notice to the other party as specified herein.
7.5 Covenant Running with the Land. Any act or agreement specified
herein to be done or performed by Mortgagor shall be construed as a covenant
running with the land and shall be binding upon Mortgagor and its successors and
assigns as if each had personally made such agreement.
7.6 Amendment. Any amendment, modification, consent or waiver which may
be hereafter requested by Mortgagor or otherwise required must be in writing and
signed by both Mortgagor and Mortgagee. Mortgagor shall promptly pay ( or
reimburse, as Mortgagee may elect) all costs and expenses which Mortgagee may
incur in connection with any amendment, modification, consent or waiver,
including the fees and reimbursements of professional advisors and consultants
to Mortgagee (including legal counsel), title information and premiums,
recording costs and appraisal fees (including any reappraisal deemed necessary
by Mortgagee).
7.7 Applicable Law. This Mortgage shall be governed by and construed in
accordance with the law of the state chosen by the parties under the applicable
provision contained in the Obligations Secured except to the extent that rights,
remedies and warrants of attorney which relate to realizing upon the security
covered by this Mortgage are governed by the laws of the state in which the
Mortgaged Property is located. Whenever possible, each provision of this
Mortgage shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Mortgage shall be prohibited by, or
invalid under, applicable law, such provision shall be ineffective to the extent
of such prohibition and invalidity without invalidating the remaining provisions
of this Mortgage. Nothing contained in this Mortgage or in any other Loan
Document shall require Mortgagor to pay, or Mortgagee to accept, interest in an
amount which would subject Mortgagee to penalty under applicable law.
7.8 Construction. Whenever used in this Mortgage, unless the context
clearly indicates a contrary intent:
(a) The word "Mortgagor" shall mean the persons who execute this
Mortgage and any subsequent fee owner of the Mortgaged Property and their
respective heirs, executors, administrators, personal representatives,
successors, and assigns;
(b) The word "Mortgagee" shall mean, collectively, all of the
entities listed as Mortgagee hereinabove or any subsequent holder of this
Mortgage or participant in the Loan;
(c) The word "person" shall mean individual, corporation,
partnership or unincorporated association;
(d) The use of any gender shall include all genders;
(e) The singular number shall include the plural and the plural
the singular as the context may require;
(f) The word "including" shall mean "including but not limited to"
or "including without limitation" as the context may require.
7.9 Liability. If Mortgagor, or any successor or grantee of Mortgagor,
shall be more than one person, all Obligations of Mortgagor under this Mortgage
shall be joint and several and shall bind and affect all persons who are defined
as "Mortgagor" as fully as though all of them were specifically named herein
wherever the word "Mortgagor" is used. Any Mortgagor who signs this Mortgage but
does not sign the Obligations Secured: (a) is signing this Mortgage to mortgage,
grant and convey that Mortgagor's interest in the Mortgaged Property to
Mortgagee under the terms of this Mortgage, (b) is not personally obligated to
pay the principal sum evidenced by the Obligations Secured (but is obligated to
reimburse Mortgagee with interest at the Default Rate for advances made by the
Mortgagee to protect the security of this Mortgage arising from or related to
the failure of Mortgagor to pay or perform its obligations with respect to the
Mortgaged Property under this Mortgage), and (c) agrees that Mortgagee and any
obligor may agree to extend, modify, forbear or make any other accommodations
with regard to the terms of this Mortgage or the Obligations Secured without
Mortgagor's consent.
7.10 Headings. The headings of sections have been included in this
Mortgage for convenience of reference only and shall not be considered in
interpreting this Mortgage.
7.11 Severability. If any provision of this Mortgage shall be held for
any reason to be invalid, illegal or unenforceable, such impairment shall not
affect any other provision of this Mortgage.
7.12 Incorporation by References. The legal description of the
Mortgaged Property attached as Exhibit "A", the list of Permitted Encumbrances
(if any) attached as Exhibit "B", and any Rider(s) executed by Mortgagor and
attached to this Mortgage are incorporated into this Mortgage by this reference.
7.13 Receipt of Copy. Mortgagor acknowledges receipt of conformed
copies of the Obligations Secured and this Mortgage.
IN WITNESS WHEREOF, Mortgagor, intending to be legally bound hereby, has duly
executed this Mortgage, under seal, as of the day and year first above written.
Meridian Bank has merged
with CoreStates Bank, N.A.
MORTGAGOR (If individuals, partnership, etc.,) MORTGAGOR (If corporation)
Rhetech, Inc.
- ------------------------------- -------------------------------
Business Name, if any Corporate Name
By: /s/Charles D. Brown
- ------------------------------- -------------------------------
Title: Charles D. Brown,
President/CEO
By: /s/Joseph A. Yurgosky
- ------------------------------- -------------------------------
Title: Joseph A. Yurgosky,
Secretary
Attest:
- ------------------------------- -------------------------------
Title:
(Affix Corporate Seal)
- -------------------------------
Witness:
- ------------------------------- -------------------------------
CORPORATE ACKNOWLEDGMENT
STATE OF PENNSYLVANIA :
: ss.
COUNTY OF LEHIGH :
On this the 26th day of MARCH, 1998 before me, a Notary Public in and
for said County and State, personally appeared CHARLES D. BROWN, known to me (or
satisfactorily proven) to be the PRESIDENT and CHIEF EXECUTIVE OFFICER (C.E.O.)
of RHETECH, INC., a Delaware Corporation, and that he as such officer, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the Corporation by himself as such officer.
WITNESS my hand and notarial seal the day and year aforesaid.
/s/Robin L. Cunconan-Lahr My Commission Expires: March 12, 2001
- -------------------------------
Notary Public
NOTARIAL SEAL
CORPORATE ACKNOWLEDGMENT
STATE OF PENNSYLVANIA :
: ss.
COUNTY OF LEHIGH :
On this the 26th day of MARCH, 1998 before me, a Notary Public in and
for said County and State, personally appeared JOSEPH A. YURGOSKY, known to me
(or satisfactorily proven) to be the Secretary of RHETECH, INC., a Delaware
Corporation, and that he as such officer, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by signing the name
of the Corporation by himself as such officer.
WITNESS my hand and notarial seal the day and year aforesaid.
/s/Robin L. Cunconan-Lahr My Commission Expires: March 12, 2001
- -------------------------------
Notary Public
NOTARIAL SEAL
EXHIBIT "A"
LEGAL DESCRIPTION OF MORGAGED PROPERTY
PARCEL A
- --------
All that certain tract of land and the improvements thereon located on
the south side of Cherry Street, west of South Fourth Street, in the Borough of
Coopersburg, Lehigh County, Commonwealth of Pennsylvania, known as 416 South
Fourth Street and designated Lot 1 on the Subdivision Plan of property of John
J. Horvath, recorded in Minor Subdivision Map Book 2, Page 223, being bounded
and described, in accordance with a survey (#17194) by Bascom & Sieger, as
follows, to wit:
Beginning at an iron pipe (set) on the southerly property line of
Cherry Street, apparently in line with the westerly property of South Fourth
Street extended southward,
Thence, along the westerly and northerly property lines of Lot 4 of
said subdivision:
(1) S 17 degrees 20' 00" W, 340.00 feet to an iron pipe, and
(2) N 61 degrees 28' 50" W, 452.19 feet to an iron pipe,
Thence, along the easterly property line of land now or late of John F.
Bliss, the following two courses and distances:
(1) N 41 degrees 31' 15" E, 55.48 feet to a drill hole in the base of a
sanitary sewer manhole, and
(2) N 11 degrees 06' 30" E, 202.86 feet to an iron pipe (set),
Thence, along the southerly property line of Cherry Street, S 72
degrees 40' 00" E, 502.87 feet to the place of beginning.
Containing 2.9481 Acres.
Subject to easements shown on recorded plan.
BEING THE SAME PREMISES which Lehigh County Industrial Development Authority, a
body corporate and politic, by its Deed dated December 18, 1997, and recorded in
the Office of the Recorder of Deeds in and for Lehigh County, in Deed Book
Volume 1602, Page 1040 granted and conveyed unto Rhetech, Inc., a Delaware
corporation, Grantor herein.
PARCEL B
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All that certain tract of land and the improvements thereon located on
the south side of Cherry Street, at the extension of South Fourth Street, in the
Borough of Coopersburg, Lehigh County, Commonwealth of Pennsylvania, designated
Lot 4 on the Subdivision Plan of property of John J. Horvath, recorded in Minor
Subdivision Map Book 2, Page 223, being bounded and described, in accordance
with a survey (#17194) by Bascom & Sieger, as follows, to wit:
Beginning at an iron pipe (set) on the southerly property line of
Cherry Street, apparently in line with the westerly property of South Fourth
Street extended southward,
Thence, along the southerly property line of Cherry Street, S 72
degrees 40' 00" E, 60.00 feet to an iron pipe (set),
Thence, along the westerly property line of land now or late of Fred W.
Derby, the following two courses and distances:
(1) S 17 degrees 20' 00" W, 341.62 feet to an iron pipe (set), and,
(2) S 43 degrees 57' 10" W, 342.39 feet to an iron pipe,
Thence, along the northwesterly property lines of land now or late of
Valley Manor Nursing and Convalescence Center Inc. and of land now or late of
Harold Dieterly, S 65 degrees 23' 30" W, 470.29 feet to an iron pipe (set),
Thence, along the northeasterly property line of the latter and of land
now or late of Edna W. Cooper, passing through an "T" iron at 244.51 feet, N 38
degrees 28' 40" W, 495.05 feet to an iron pipe,
Thence, along the southeasterly property lines of land now or late of
Perry Howard Ruth and of land now or late of Leonard R. Reinhard Sr., N 55
degrees 29' 40" E, 149.98 feet to a point in Saucon Creek, 11.81 feet from an
iron pipe (set on line),
Thence, along the southerly property line of land now or late of Donna
M. Sandy, N 77 degrees 18' 45" E, 273.68 feet to a drill hole (set) in the base
of sanitary sewer manhole,
Thence, along the southeasterly property line of the same and of land
now or late of John F. Bliss, N 41 degrees, 31' 15" E, 220.6 feet to an iron
pipe,
Thence, along the southerly and easterly property lines of Lot 1 of
said subdivision:
(1) S 61 degrees 28' 50" E, 452.19 feet to an iron pipe, and
(2) N 17 degrees 20' 00" E, 340.00 feet to the place of beginning.
Containing 8.5758 Acres.
Subject to easements shown on recorded plan.
BEING THE SAME PREMISES which John J. Horvath and Shriley E. Horvath, husband
and wife, and Wendell F. Horvath and Stella R. Horvath, husband and wife, by its
Deed dated March 16, 1998, and recorded in the Office of the Recorder of Deeds
in and for Lehigh County, in Deed Book Volume 1602, Page 1037 granted and
conveyed unto Rhetech, Inc., a Delaware corporation, Grantor herein.