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EXHIBIT 10.7
Pennsylvania
OPEN-END MORTGAGE
from
HEDSTROM CORPORATION, Mortgagor
to
CREDIT SUISSE FIRST BOSTON, Mortgagee
DATED AS OF JUNE 12, 1997
After recording, please return to:
Simpson Thacher & Bartlett
a partnership which includes
professional corporations
425 Lexington Avenue
New York, New York 10017
ATTN: Erin L. Rothfuss, Esq.
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Pennsylvania
OPEN-END MORTGAGE
THIS OPEN-END MORTGAGE, dated as of June __, 1997 is made by
HEDSTROM CORPORATION, a Delaware corporation ("Mortgagor"), whose address is
585 Slawin Court, Mt. Prospect, Illinois 60056-2183, to CREDIT SUISSE FIRST
BOSTON, a Swiss banking corporation, as administrative agent for the Lenders
referred to below (in such capacity, "Mortgagee"), whose address is 11 Madison
Avenue, New York, New York 10010. References to this "Mortgage" shall mean
this instrument and any and all renewals, modifications, amendments,
supplements, extensions, consolidations, substitutions, spreaders and
replacements of this instrument.
Background
A. Mortgagor is the owner of the parcel(s) of real property
described on Schedule A attached (such real property, together with all of the
buildings, improvements, structures and fixtures now or subsequently located
thereon (the "Improvements"), being collectively referred to as the "Real
Estate").
B. Mortgagor is a party to that certain Credit Agreement dated
as of even date herewith (as the same may be amended, supplemented, modified,
extended, restated or replaced from time to time, the "Credit Agreement") among
Mortgagor, the several banks and other financial institutions from time to time
parties thereto (the "Lenders") and Mortgagee. All defined terms used and not
defined herein shall have the meanings assigned thereto in the Credit
Agreement.
C. Pursuant to the Credit Agreement, (i) certain of the
Lenders have agreed to make the loans as described in Section 2 of the Credit
Agreement to Mortgagor (the "Tranche A Loans"); (ii) certain of the Lenders
have agreed to make term loans as described in Section 3 of the Credit
Agreement to Mortgagor (the "Tranche B Loans"); (iii) certain of the Lenders
have agreed to make revolving credit loans to Mortgagor (the "Revolving Credit
Loans"); (iv) the Issuing Lender has agreed to issue letters of credit for the
account of Mortgagor; and (v) the Swing Line Lender has agreed to make swing
line loans to Mortgagor (the "Swing Line Loans"). The maximum aggregate
principal amount of the Tranche A Loans, the Tranche B Loans, the Revolving
Credit Loans, the Swing Line Loans and the L/C Obligations outstanding at any
one time shall not exceed $180,000,000.
D. The Loans may be evidenced by promissory notes of Mortgagor
made payable to the order of the relevant Lender (as
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the same may be amended, supplemented, modified, extended, restated or replaced
from time to time, the "Notes"). Each Loan bears interest at the rate stated
in the Credit Agreement; references in this Mortgage to the "Default Rate"
shall mean, at any time, the interest rate applicable to overdue principal
amounts of the Loans as provided in the Credit Agreement. The obligation of
Mortgagor to reimburse the Issuing Lender for amounts drawn under Letters of
Credit (the "Reimbursement Obligation") is governed by the section of the
Credit Agreement entitled "Letters of Credit."
E. It is a condition precedent to the obligation of the
Lenders to make their respective Loans to Mortgagor and of the issuing Lender
to issue the Letters of Credit for the account of Mortgagor that Mortgagor
shall have executed and delivered this Mortgage to Mortgagee for the benefit of
Mortgagee and the other Lenders, and Mortgagor is willing to so execute and
deliver this Mortgage in order to obtain the benefits available to it from
entering into the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce
Mortgagee and the other Lenders to make their respective Loans to Mortgagor and
the Issuing Lender to issue the Letters of Credit for the account of Mortgagor,
Mortgagor hereby agrees with Mortgagee, for the benefit of Mortgagee and the
other Lenders, as follows:
Granting Clauses
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Mortgagor agrees that to secure:
(a) (i) the repayment of the indebtedness evidenced by the Notes,
(ii) all interest (including, without limitation, interest accruing after
the maturity of the Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to Mortgagor whether or not a
claim for post-filing or post-petition interest is allowed in such
proceeding) and fees, indemnities, costs, expenses (including, without
limitation, all reasonable fees and disbursements of counsel to Mortgagee or
to the Lenders that are required to be paid by Mortgagor pursuant to the
terms of the Credit Agreement or this Mortgage) or otherwise payable thereon
and (iii) payment of the Reimbursement Obligation with respect to the
Letters of Credit, whether in respect of any drawings under any Letters of
Credit, fees, commissions, expenses or otherwise (the items set forth in
clauses (i), (ii) and (iii) being referred to collectively as the
"Indebtedness"); and
(b) the performance of all covenants, agreements, obligations and
liabilities of Mortgagor (the "Obligations") whether direct or indirect,
absolute or contingent, due or to
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become due, or now existing or hereinafter incurred, which may arise under
or pursuant to the provisions of the Notes, this Mortgage, any other
document securing payment of the Indebtedness (the "Security Documents") and
any amendments, supplements, extensions, renewals, restatements,
replacements or modifications of any of the foregoing (the Notes, the
Security Documents, the Credit Agreement and all other documents and
instruments from time to time evidencing, securing or guaranteeing the
payment of the Indebtedness or the performance of the Obligations, as any of
the same may be amended, supplemented, extended, renewed, restated, replaced
or modified from time to time, are collectively referred to as the "Loan
Documents");
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN,
AND HEREBY MORTGAGES, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever of
Mortgagor, in possession or expectancy, in and to the Real Estate or any
part thereof;
(C) all right, title and interest of Mortgagor in, to and under
all easements, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water and riparian rights,
development rights, air rights, mineral rights, oil and gas rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to the
Real Estate, and any reversions, remainders, rents, issues, profits and
revenue thereof and all land lying in the bed of any street, road or avenue,
in front of or adjoining the Real Estate to the center line thereof;
(D) all right, title and interest of Mortgagor in all of the
fixtures, chattels, business machines, machinery, apparatus, equipment,
furnishings, fittings and articles of personal property of every kind and
nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case,
attachments, components, parts and accessories) currently owned or
subsequently acquired by Mortgagor and now or subsequently attached to, or
contained in or used or usable in any way in connection with any operation
or letting of the Real Estate, including but without limiting the generality
of the foregoing, all screens, awnings, shades, blinds, curtains, draperies,
artwork, carpets, rugs, storm doors and windows, furniture and furnishings,
heating, electrical, and mechanical equipment, lighting, switchboards,
plumbing, ventilating, air conditioning and air-cooling apparatus,
refrigerating, and incinerating equipment, escalators, elevators, loading
and unloading equipment and systems, stoves, ranges, laundry equipment,
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cleaning systems (including window cleaning apparatus), telephones,
communication systems (including satellite dishes and antennae),
televisions, computers, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, security systems, motors, engines,
machinery, pipes, pumps, tanks, conduits, appliances, fittings and fixtures
of every kind and description (all of the foregoing in this paragraph (D)
being referred to as the "Equipment");
(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to, the
Real Estate and the Equipment, subsequently acquired by or released to
Mortgagor or constructed, assembled or placed by Mortgagor on the Real
Estate, immediately upon such acquisition, release, construction, assembling
or placement, including, without limitation, any and all building materials
whether stored at the Real Estate or offsite, and, in each such case,
without any further mortgage, conveyance, assignment or other act by
Mortgagor;
(F) all right, title and interest of Mortgagor in, to and under
all leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or occupancy
of the Real Estate or the Equipment or any part thereof, now existing or
subsequently entered into by Mortgagor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing
may be amended, restated, extended, renewed or modified from time to time,
the "Leases"), and all rights of Mortgagor in respect of cash and securities
deposited thereunder and the right to receive and collect the revenues,
income, rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising from
the use and enjoyment of the Mortgaged Property (as defined below)
(collectively, the "Rents");
(G) all trade names, trade marks, logos, copyrights, good will and
books and records relating to or used in connection with the operation of
the Real Estate or the Equipment or any part thereof; all general
intangibles related to the operation of the Improvements now existing or
hereafter arising (collectively, the "Intellectual Property");
(H) all right, title and interest of Mortgagor in all unearned
premiums under insurance policies now or subsequently obtained by Mortgagor
relating to the Real Estate or Equipment and Mortgagor's interest in and to
all proceeds of any such insurance policies (including title insurance
policies) including the right to collect and receive such proceeds, subject
to the provisions relating to insurance generally set forth in the Credit
Agreement; and all awards and other compensation, including the interest
payable thereon and the
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right to collect and receive the same, made to the present or any subsequent
owner of the Real Estate or Equipment for the taking by eminent domain,
condemnation or otherwise, of all or any part of the Real Estate or any
easement or other right therein;
(I) to the extent assignable by Mortgagor, all right, title and
interest of Mortgagor in and to (i) all contracts from time to time executed
by Mortgagor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy, sale or
financing of the Real Estate or Equipment or any part thereof and all
agreements relating to the purchase or lease of any portion of the Real
Estate or any property which is adjacent or peripheral to the Real Estate,
together with the right to exercise such options and all leases of Equipment
(collectively, the "Contracts"), (ii) all consents, licenses, building
permits, certificates of occupancy and other governmental approvals relating
to construction, completion, occupancy, use or operation of the Real Estate
or any part thereof (collectively, the "Permits") and (iii) all drawings,
plans, specifications and similar or related items relating to the Real
Estate (collectively, the "Plans");
(J) all right, title and interest of Mortgagor in any and all
monies now or subsequently on deposit for the payment of real estate taxes
or special assessments against the Real Estate or for the payment of
premiums on insurance policies covering the foregoing property; all capital,
operating, reserve or similar accounts held by or on behalf of Mortgagor and
related to the operation of the Mortgaged Property, whether now existing or
hereafter arising and all monies held in any of the foregoing accounts and
any certificates or instruments related to or evidencing such accounts;
(K) all accounts and revenues arising from the operation of the
Improvements including, without limitation, (i) any right to payment now
existing or hereafter arising for rental of hotel rooms or other space or
for goods sold or leased or for services rendered, whether or not yet earned
by performance, arising from the operation of the Improvements or any other
facility on the Mortgaged Property and (ii) to the extent assignable by
Mortgagor, all rights to payment from any consumer credit-charge card
organization or entity including, without limitation, payments arising from
the use of the American Express Card, the Visa Card, the Carte Blanche Card,
the Mastercard or any other credit card, including those now existing or
hereafter created, substitutions therefor, proceeds thereof (whether cash or
non-cash, movable or immovable, tangible or intangible) received upon the
sale, exchange, transfer, collection or other disposition or substitution
thereof and any and all of the foregoing and proceeds therefrom; and
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(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned
or held or subsequently acquired by Mortgagor and described in the foregoing
clauses (A) through (E) are collectively referred to as the "Premises", and
those described in the foregoing clauses (A) through (L) are collectively
referred to as the "Mortgaged Property"; notwithstanding the foregoing,
"Mortgaged Property" shall not include, with respect to Mortgagor, any Leases,
Intellectual Property, Contracts, Permits or Plans to the extent the grant by
Mortgagor of a security interest pursuant to this Mortgage in its rights under
such item is prohibited thereby and the consent of applicable Persons has not
been obtained, provided that the foregoing limitation shall not affect, limit,
restrict or impair the grant by Mortgagor of a security interest pursuant to
this Mortgage in any Account or any money or other amounts due or to become due
under such Lease, Intellectual Property, Contract, Permit or Plan, to the
extent provided in Section 9-318 of the New York UCC as in effect on the date
hereof.).
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Indebtedness is fully paid and the
Obligations fully performed.
Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees with
Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has good
title to the Real Estate in fee simple and good title to the rest of the
Mortgaged Property, subject only to the matters that are set forth in Schedule
B of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and those items permitted by the Credit Agreement
(collectively, the "Permitted Exceptions") and Mortgagor shall warrant, defend
and preserve such title and the lien of the Mortgage thereon against all claims
of all persons and entities. Mortgagor further warrants that it has the right
to mortgage the Mortgaged Property.
2. Payment of Indebtedness. Mortgagor shall pay the Indebtedness
at the times and places and in the manner specified in the Notes and shall
perform all the Obligations.
3. Requirements.
(a) Mortgagor shall promptly comply with, or cause to be complied
with, and conform to all present and future laws, statutes, codes, ordinances,
orders, judgments, decrees, rules, regulations and requirements, and
irrespective of the nature of
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the work to be done, of each of the United States of America, any State and any
municipality, local government or other political subdivision thereof and any
agency, department, bureau, board, commission or other instrumentality of any
of them, now existing or subsequently created (collectively, "Governmental
Authority") which has jurisdiction over the Mortgaged Property and all
covenants, restrictions and conditions now or later of record which may be
applicable to any of the Mortgaged Property, or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Mortgaged Property, except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect. All present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements of every Governmental Authority applicable to Mortgagor or to any
of the Mortgaged Property and all covenants, restrictions, and conditions which
now or later may be applicable to any of the Mortgaged Property are
collectively referred to as the "Legal Requirements".
(b) From and after the date of this Mortgage, Mortgagor shall not
by act or omission permit any building or other improvement on any premises not
subject to the lien of this Mortgage to rely on the Premises or any part
thereof or any interest therein to fulfill any Legal Requirement, and Mortgagor
hereby assigns to Mortgagee any and all rights to give consent for all or any
portion of the Premises or any interest therein to be so used. Mortgagor shall
not by act or omission impair the integrity of any of the Real Estate which is
a single zoning lot as of the date hereof as a single zoning lot separate and
apart from all other premises. Any act or omission by Mortgagor which would
result in a violation of any of the provisions of this subsection shall be
void.
4. Payment of Taxes and Other Impositions. (a) Mortgagor shall
pay and discharge taxes and other charges in accordance with the Credit
Agreement.
(b) Any sums paid by Mortgagee in discharge of any taxes permitted
to be paid by Mortgagee pursuant to the Credit Agreement shall be (i) a lien on
the Premises secured hereby prior to any right or title to, interest in, or
claim upon the Premises subordinate to the lien of this Mortgage and (ii)
payable to Mortgagee as set forth in the Credit Agreement.
(c) Mortgagor shall not claim, demand or be entitled to receive
any credit or credits toward the satisfaction of this Mortgage or on any
interest payable thereon for any taxes assessed against the Mortgaged Property
or any part thereof, and shall not claim any deduction from the taxable value
of the Mortgaged Property by reason of this Mortgage.
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5. Insurance. (a) Mortgagor shall maintain or cause to be
maintained on all of the Premises insurance as required under the Credit
Agreement.
(b) Mortgagor promptly shall comply in all material respects with
and conform to (i) all provisions of each such insurance policy, and (ii) all
requirements of the insurers applicable to Mortgagor or to any of the Mortgaged
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Mortgaged Property. Mortgagor
shall not use or permit the use of the Mortgaged Property in any manner which
would permit any insurer to cancel any insurance policy or void coverage
required to be maintained by this Mortgage.
(c) In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property all right, title and interest of
Mortgagor in and to any insurance policies then in force shall pass to the
purchaser or grantee.
6. Restrictions on Liens and Encumbrances. Except for the lien of
this Mortgage and the Permitted Exceptions, Mortgagor shall not further
mortgage, nor otherwise encumber the Mortgaged Property nor create or suffer to
exist any lien, charge or encumbrance on the Mortgaged Property, or any part
thereof, whether superior or subordinate to the lien of this Mortgage and
whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as
expressly permitted under the Credit Agreement, Mortgagor shall not sell,
transfer, convey or assign all or any portion of, or any interest in, the
Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Mortgagor shall maintain or cause to be maintained all the Improvements in good
condition and repair (ordinary wear and tear excepted) and shall not commit or
suffer any waste of the Improvements. The Improvements shall not be demolished
or materially altered, nor any material additions built, without the prior
written consent of Mortgagee, such consent not to be unreasonably withheld.
(b) Subject to Section 10.3 of the Credit Agreement, Mortgagor
shall pay or cause to be paid utility charges and all other assessments or
charges of a similar nature, whether public or private, affecting the Premises
or any portion thereof.
9. Condemnation/Eminent Domain. Immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof, Mortgagor will notify Mortgagee of
the pendency of such proceedings. During the continuance of an Event of
Default, and subject to Section 7.5(i) of the Credit Agreement, Mortgagee is
hereby authorized and empowered by Mortgagor to settle or
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compromise any claim in connection with such condemnation and to receive all
awards and proceeds thereof to be held by Mortgagee as collateral to secure the
payment and performance of the Indebtedness and the Obligations.
Notwithstanding the preceding sentence, subject to the provisions of the Credit
Agreement and provided that no Event of Default shall have occurred and be
continuing, Mortgagor shall, at its expense, diligently prosecute any such
proceeding relating to such condemnation, settle or compromise any claims in
connection therewith and receive any awards or proceeds thereof, provided that
Mortgagor shall comply with the applicable provisions of the Credit Agreement.
10. Restoration. Mortgagor will apply insurance proceeds and
condemnation proceeds and awards in accordance with the Credit Agreement.
11. Leases. Except as otherwise provided in the Credit Agreement,
(a) Mortgagor shall not (i) execute an assignment or pledge of any Lease
relating to all or any portion of the Mortgaged Property other than in favor of
Mortgagee, or (ii) without the prior written consent of Mortgagee, execute or
permit to exist any Lease of any of the Mortgaged Property, except as provided
in the Credit Agreement.
(b) As to any Lease relating to all or any portion of the
Mortgaged Property, Mortgagor shall not accept a surrender or terminate,
cancel, rescind, supplement, alter, revise, modify or amend such Lease or
permit any such action to be taken nor shall Mortgagor accept the payment of
rent more than thirty (30) days in advance of its due date, except to the
extent such action or payment occurs either in the ordinary course of business
or according to Mortgagor's reasonable business judgment.
12. Further Assurances/Estoppel Certificates. To further assure
Mortgagee's rights under this Mortgage, Mortgagor agrees upon demand of
Mortgagee to do any act or execute any additional documents (including, but not
limited to, security agreements on any personalty included or to be included in
the Mortgaged Property and a separate assignment of each Lease in recordable
form) as may be reasonably required by Mortgagee to confirm the lien of this
Mortgage and all other rights or benefits conferred on Mortgagee.
13. Mortgagee's Right to Perform. If Mortgagor fails to perform
any of the covenants or agreements of Mortgagor, Mortgagee may at any time (but
shall be under no obligation to) pay or perform the same, and the amount or
cost thereof, as set forth in the Credit Agreement, shall immediately be due
from Mortgagor to Mortgagee and the same shall be secured by this Mortgage and
shall be a lien on the Mortgaged Property prior to any right, title to,
interest in or claim upon the Mortgaged Property attaching subsequent to the
lien of this Mortgage. No payment or advance of money by Mortgagee under this
Section shall
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be deemed or construed to cure Mortgagor's default or waive any right or remedy
of Mortgagee.
14. Materials of Environmental Concern. Mortgagor shall comply in
all respects with Section 8.15 of the Credit Agreement.
15. Events of Default. The occurrence of any Event of Default as
such term is defined in the Credit Agreement shall constitute an Event of
Default hereunder.
16. Remedies.
(a) Subject to the provisions of the Credit Agreement, upon the
occurrence of any Event of Default, in addition to any other rights and
remedies Mortgagee may have pursuant to the Loan Documents, or as provided by
law, and without limitation, (x) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of Section 12 of the Credit Agreement,
automatically the Indebtedness and all other amounts owing under the Notes,
this Mortgage and the other Security Documents immediately shall become due and
payable, and (y) if such event is any other Event of Default, with the consent
of the Required Lenders, the Mortgagee may, or upon the request of the Required
Lenders, the Mortgagee shall, by notice to Mortgagor, declare the Indebtedness
(together with accrued interest thereon) and all other amounts payable under
the Notes, this Mortgage and the other Security Documents to be immediately due
and payable. Except as expressly provided in the Credit Agreement, notice of
intention to accelerate, notice of acceleration, presentment, demand, protest
and all other notices of any kind are hereby expressly waived. In addition,
upon the occurrence of any Event of Default, Mortgagee may immediately take
such action, without notice or demand, as it deems advisable to protect and
enforce its rights against Mortgagor and in and to the Mortgaged Property,
including, but not limited to, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such manner as Mortgagee
may determine, in its sole discretion, without impairing or otherwise affecting
the other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law, (A)
institute and maintain an action of mortgage foreclosure against all or any
part of the Mortgaged Property, (B) institute and maintain an action on the
Indebtedness or the Notes, (C) sell all or part of the Mortgaged Property
(Mortgagor expressly granting to Mortgagee the power of sale), or (D) take
such other action at law or in equity for the enforcement of this Mortgage
or any of the Loan Documents as the law may allow. Mortgagee may proceed in
any such action to final judgment and execution thereon for all sums due
hereunder, together with interest thereon at the Default Rate and all costs
of suit, including, without limitation, reasonable attorneys' fees and
disbursements. Interest at the Default Rate shall be due on any judgment
obtained by Mortgagee
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from the date of judgment until the date upon which actual payment is made
of the full amount of the judgment.
(ii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the Mortgaged
Property or any other collateral as security for the Indebtedness and
Obligations enter into and upon the Mortgaged Property and each and every
part thereof and exclude Mortgagor and its agents and employees therefrom
without liability for trespass, damage or otherwise (Mortgagor hereby
agreeing to surrender possession of the Mortgaged Property to Mortgagee upon
demand at any such time) and use, operate, manage, maintain and control the
Mortgaged Property and every part thereof. Following such entry and taking
of possession, Mortgagee shall be entitled, without limitation, (x) to lease
all or any part or parts of the Mortgaged Property for such periods of time
and upon such conditions as Mortgagee may, in its discretion, deem proper,
(y) to enforce, cancel or modify any Lease and (z) generally to execute, do
and perform any other act, deed, matter or thing concerning the Mortgaged
Property as Mortgagee shall deem appropriate as fully as Mortgagor might do.
(b) The holder of this Mortgage, in any action to foreclose it,
shall be entitled to the appointment of a receiver. In case of a foreclosure
sale, the Real Estate may be sold, at Mortgagee's election, in one parcel or in
more than one parcel and Mortgagee is specifically empowered, (without being
required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, and notwithstanding
to the contrary any exculpatory or non-recourse language which may be contained
herein, Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
(d) MORTGAGOR AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF
RECORD OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR AND TO CONFESS
JUDGMENT IN EJECTMENT AGAINST MORTGAGOR (AND, AT THE ELECTION OF SAID ATTORNEY,
AGAINST ANY PERSON CLAIMING UNDER, BY OR THROUGH MORTGAGOR) FOR THE RECOVERY BY
MORTGAGEE OF POSSESSION OF THE ENTIRE PREMISES OR, AT THE ELECTION OF SAID
ATTORNEY, ANY PORTION OR PORTIONS OF THE PREMISES. THE FOREGOING AUTHORITY TO
CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL
CONTINUE FROM TIME TO TIME UNTIL MORTGAGEE IS FULLY AND FINALLY VESTED WITH
POSSESSION OF THE ENTIRE PREMISES. MORTGAGOR EXPRESSLY AGREES THAT ANY
JUDGMENT ENTERED PURSUANT TO THE FOREGOING AUTHORITY SHALL BE FINAL AND
RELEASES TO MORTGAGEE, AND TO ANY ATTORNEY APPEARING FOR
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MORTGAGOR OR MORTGAGEE, ALL ERRORS IN SAID PROCEEDINGS AND ALL LIABILITY
THEREFOR. UPON CONFESSION OF JUDGMENT IN EJECTMENT PURSUANT TO THE FOREGOING
AUTHORITY, A WRIT OF POSSESSION (OR LIKE WRIT APPROPRIATE UNDER THEN APPLICABLE
LAW) MAY ISSUE FORTHWITH WITHOUT ANY PRIOR PROCEEDINGS AND MAY INCLUDE THE
COSTS OF MORTGAGEE. JUDGMENT MAY BE ENTERED PURSUANT TO THE FOREGOING
AUTHORITY ON THE BASIS OF AN AFFIDAVIT MADE ON MORTGAGEE'S BEHALF AND SETTING
FORTH THE RELEVANT FACTS, OF WHICH FACTS SUCH AFFIDAVIT SHALL BE CONCLUSIVE
EVIDENCE, AND IF A TRUE COPY OF THIS MORTGAGE IS FILED IN ANY ACTION FOR SUCH
JUDGMENT IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL OF THIS MORTGAGE.
MORTGAGOR VOLUNTARILY AND KNOWINGLY WAIVES ITS RIGHT TO A PRIOR HEARING UNDER
THE CONSTITUTIONS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA.
17. Right of Mortgagee to Credit Sale. Upon the occurrence of any
sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof. In lieu of paying cash therefor, Mortgagee may make settlement for
the purchase price by crediting upon the Indebtedness or other sums secured by
this Mortgage the net sales price after deducting therefrom the expenses of
sale and the cost of the action and any other sums which Mortgagee is
authorized to deduct under this Mortgage. In such event, this Mortgage, the
Notes and documents evidencing expenditures secured hereby may be presented to
the person or persons conducting the sale in order that the amount so used or
applied may be credited upon the Indebtedness as having been paid.
18. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee as a matter of right and without notice
to Mortgagor, unless otherwise required by applicable law, and without regard
to the adequacy or inadequacy of the Mortgaged Property or any other collateral
as security for the Indebtedness and Obligations or the interest of Mortgagor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property, and
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor (except as may be required by law). Any such receiver
or receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Mortgagee in case of entry as
provided in this Mortgage, including, without limitation and to the extent
permitted by law, the right to enter into leases of all or any part of the
Mortgaged Property, and shall continue as such and exercise all such powers
until the date of confirmation of sale of the Mortgaged Property unless such
receivership is sooner terminated.
19. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged
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Property not then or theretofore released as security for the full amount of
the Indebtedness, Mortgagee may, from time to time and without notice, agree to
(i) release any person liable for the Indebtedness, (ii) extend the maturity or
alter any of the terms of the Indebtedness or any guaranty thereof, (iii) grant
other indulgences, (iv) release or reconvey, or cause to be released or
reconveyed at any time at Mortgagee's option any parcel, portion or all of the
Mortgaged Property, (v) take or release any other or additional security for
any obligation herein mentioned, or (vi) make compositions or other
arrangements with debtors in relation thereto. If at any time this Mortgage
shall secure less than all of the principal amount of the Indebtedness, it is
expressly agreed that any repayments of the principal amount of the
Indebtedness shall not reduce the amount of the lien of this Mortgage until the
lien amount shall equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the lien of this Mortgage or any liens,
rights, powers or remedies of Mortgagee hereunder, and such liens, rights,
powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this
Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose the lien of
this Mortgage subject to the rights of any tenants of the Mortgaged Property.
The failure to make any such tenants defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Indebtedness
or to foreclose the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
(e) Mortgagor waives and releases, to the fullest extent
permitted by law, any rights which it may have to send a written notice
pursuant to 42 Pa. Cons. Stat. Ann. Section 8143(c).
20. Security Agreement under Uniform Commercial Code. (a) It is
the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"Code") of the State in which the Mortgaged Property is located. If an Event
of Default shall occur under this Mortgage, then in addition to having any
other right or remedy available at law or in equity, Mortgagee shall have the
option of either (i) proceeding under the Code and exercising such rights and
remedies as may be provided to a secured party by the Code with respect to all
or any portion of
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the Mortgaged Property which is personal property (including, without
limitation, taking possession of and selling such property) or (ii) treating
such property as real property and proceeding with respect to both the real and
personal property constituting the Mortgaged Property in accordance with
Mortgagee's rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If Mortgagee
shall elect to proceed under the Code, then ten days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred by
Mortgagee shall include, but not be limited to, reasonable attorneys' fees and
legal expenses. At Mortgagee's request, Mortgagor shall assemble the personal
property and make it available to Mortgagee at a place designated by Mortgagee
which is reasonably convenient to both parties.
(b) Mortgagor and Mortgagee agree, to the extent permitted by law,
that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this
Mortgage upon recording or registration in the real estate records of the
proper office shall constitute a financing statement filed as a "fixture
filing" within the meaning of Sections 9-313 and 9-402 of the Code; (iii)
Mortgagor is the record owner of the Real Estate; and (iv) the addresses of
Mortgagor and Mortgagee are as set forth on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time, shall
execute, acknowledge and deliver to Mortgagee one or more separate security
agreements, in form satisfactory to Mortgagee, covering all or any part of the
Mortgaged Property and will further execute, acknowledge and deliver, or cause
to be executed, acknowledged and delivered, any financing statement, affidavit,
continuation statement or certificate or other document as Mortgagee may
reasonably request in order to perfect, preserve, maintain, continue or extend
the security interest under and the priority of this Mortgage and such security
instrument. Mortgagor further agrees to pay to Mortgagee on demand all
reasonable costs and expenses incurred by Mortgagee in connection with the
preparation, execution, recording, filing and re-filing of any such document.
Mortgagor shall from time to time, on request of Mortgagee, deliver to
Mortgagee an inventory in reasonable detail of any of the Mortgaged Property
which constitutes personal property. If Mortgagor shall fail to furnish any
financing or continuation statement within 10 days after request by Mortgagee,
then pursuant to the provisions of the Code, Mortgagor hereby authorizes
Mortgagee, without the signature of Mortgagor, to execute and file any such
financing and continuation statements. The filing of any financing or
continuation statements in the records relating to personal property or
chattels shall not be construed as in any way impairing the right of Mortgagee
to proceed against any personal
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property encumbered by this Mortgage as real property, as set forth above.
21. Assignment of Rents. Mortgagor hereby assigns to Mortgagee
the Rents as further security for the payment of the Indebtedness and
performance of the Obligations, and Mortgagor grants to Mortgagee the right to
enter the Mortgaged Property for the purpose of collecting the same and to let
the Mortgaged Property or any part thereof, and to apply the Rents on account
of the Indebtedness. The foregoing assignment and grant is present and
absolute and shall continue in effect until the Indebtedness is paid in full,
but Mortgagee hereby waives the right to enter the Mortgaged Property for the
purpose of collecting the Rents and Mortgagor shall be entitled to collect,
receive, use and retain the Rents until the occurrence and continuance of an
Event of Default under this Mortgage; such right of Mortgagor to collect,
receive, use and retain the Rents may be revoked by Mortgagee upon the
occurrence and continuance of any Event of Default under this Mortgage by
giving not less than five days' written notice of such revocation to Mortgagor;
in the event such notice is given, Mortgagor shall pay over to Mortgagee, or to
any receiver appointed to collect the Rents, any lease security deposits.
Mortgagor shall not accept prepayments of installments of Rent to become due
for a period of more than one month in advance (except for security deposits
and estimated payments of percentage rent, if any, or as otherwise provided in
such Lease).
22. Additional Rights. The holder of any subordinate lien on the
Mortgaged Property shall have no right to terminate any Lease whether or not
such Lease is subordinate to this Mortgage nor shall any holder of any
subordinate lien join any tenant under any Lease in any action to foreclose the
lien or modify, interfere with, disturb or terminate the rights of any tenant
under any Lease. By recordation of this Mortgage all subordinate lienholders
are subject to and notified of this provision, and any action taken by any such
lienholder contrary to this provision shall be null and void. The holder of
any encumbrance on the Mortgaged Property, whether or not consented to by
Mortgagee, expressly agrees by acceptance of such encumbrance and without any
further act or documentation being required by it, waives and reqlinquishes any
rights which it may have to file or send a notice pursuant to 42 Pa. Cons.
Stat. Ann. Section 8143(b) and (d).
23. Notices. All notices, requests, demands and other
communications hereunder, including, without limitation, all notices given to
Mortgagee pursuant to 42 Pa. Cons. Stat. Ann. Section 8143(d), shall be given
in accordance with subsection 10.7 of the Credit Agreement to Mortgagor and
Mortgagee as specified therein.
24. No Oral Modification. This Mortgage may not be amended,
supplemented, terminated or otherwise modified except in accordance with
subsection 14.1 of the Credit Agreement. Any
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agreement made by Mortgagor and Mortgagee after the date of this Mortgage
relating to this Mortgage shall be superior to the rights of the holder of any
intervening or subordinate lien or encumbrance.
25. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, but each shall
be construed as if such invalid, illegal or unenforceable provision had never
been included. Notwithstanding to the contrary anything contained in this
Mortgage or in any provisions of the Indebtedness or Loan Documents, the
obligations of Mortgagor and of any other obligor under the Indebtedness or
Loan Documents shall be subject to the limitation that Mortgagee shall not
charge, take or receive, nor shall Mortgagor or any other obligor be obligated
to pay to Mortgagee, any amounts constituting interest in excess of the maximum
rate permitted by law to be charged by Mortgagee.
26. Mortgagor's Waiver of Rights. To the fullest extent permitted
by law, Mortgagor waives the benefit of all laws now existing or that may
subsequently be enacted providing for (i) any appraisement before sale of any
portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshalling in the event of foreclosure of the liens hereby created. Mortgagor
further waives, to the extent permitted by applicable law, all errors and
imperfections in any proceedings instituted by Mortgagee under this Mortgage
and all notices of any Event of Default (except as may be provided for under
the terms of this Mortgage or the Credit Agreement) or of Mortgagee's election
to exercise or its actual exercise of any right, remedy or recourse provided
for under this Mortgage.
27. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Mortgage or under any of the other
Loan Documents or other
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agreement or any laws now or hereafter in force, notwithstanding some or all of
the Indebtedness and Obligations may now or hereafter be otherwise secured,
whether by mortgage, security agreement, pledge, lien, assignment or otherwise.
Neither the acceptance of this Mortgage nor its enforcement, shall prejudice or
in any manner affect Mortgagee's right to realize upon or enforce any other
security now or hereafter held by Mortgagee, it being agreed that Mortgagee
shall be entitled to enforce this Mortgage and any other security now or
hereafter held by Mortgagee in such order and manner as Mortgagee may determine
in its absolute discretion. No remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan Documents
to Mortgagee or to which it may otherwise be entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by Mortgagee. In no event shall Mortgagee, in the exercise of the
remedies provided in this Mortgage (including, without limitation, in
connection with the assignment of Rents to Mortgagee, or the appointment of a
receiver and the entry of such receiver on to all or any part of the Mortgaged
Property), be deemed a "mortgagee in possession," and Mortgagee shall not in
any way be made liable for any act, either of commission or omission, in
connection with the exercise of such remedies.
28. Multiple Security. If (a) the Premises shall consist of one
or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold one or more additional mortgages, liens, deeds of trust or other
security (directly or indirectly) for the Indebtedness upon other property in
the State in which the Premises are located (whether or not such property is
owned by Mortgagor or by others) or (c) both the circumstances described in
clauses (a) and (b) shall be true, then to the fullest extent permitted by law,
Mortgagee may, at its election, commence or consolidate in a single foreclosure
action all foreclosure proceedings against all such collateral securing the
Indebtedness (including the Mortgaged Property), which action may be brought or
consolidated in the courts of any county in which any of such collateral is
located. Mortgagor acknowledges that the right to maintain a consolidated
foreclosure action is a specific inducement to Mortgagee to extend the
Indebtedness, and Mortgagor expressly and irrevocably waives any objections to
the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Mortgagor further
agrees that if Mortgagee shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly
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secures the Indebtedness, or if Mortgagee shall have obtained a judgment of
foreclosure and sale or similar judgment against such collateral, then, whether
or not such proceedings are being maintained or judgments were obtained in or
outside the State in which the Premises are located, Mortgagee may commence or
continue foreclosure proceedings and exercise its other remedies granted in
this Mortgage against all or any part of the Mortgaged Property and Mortgagor
waives any objections to the commencement or continuation of a foreclosure of
this Mortgage or exercise of any other remedies hereunder based on such other
proceedings or judgments, and waives any right to seek to dismiss, stay,
remove, transfer or consolidate either any action under this Mortgage or such
other proceedings on such basis. Neither the commencement nor continuation of
proceedings to foreclose this Mortgage nor the exercise of any other rights
hereunder nor the recovery of any judgment by Mortgagee in any such proceedings
shall prejudice, limit or preclude Mortgagee's right to commence or continue
one or more foreclosure or other proceedings or obtain a judgment against any
other collateral (either in or outside the State in which the Premises are
located) which directly or indirectly secures the Indebtedness, and Mortgagor
expressly waives any objections to the commencement of, continuation of, or
entry of a judgment in such other proceedings or exercise of any remedies in
such proceedings based upon any action or judgment connected to this Mortgage,
and Mortgagor also waives any right to seek to dismiss, stay, remove, transfer
or consolidate either such other proceedings or any action under this Mortgage
on such basis. It is expressly understood and agreed that to the fullest
extent permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Indebtedness (directly or
indirectly) in the most economical and least time-consuming manner.
29. Successors and Assigns. All covenants of Mortgagor contained
in this Mortgage are imposed solely and exclusively for the benefit of
Mortgagee and its successors and assigns, and no other person or entity shall
have standing to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may
be freely waived in whole or in part by Mortgagee at any time if in its sole
discretion it deems such waiver advisable. All such covenants of Mortgagor
shall run with the land and bind Mortgagor, the successors and assigns of
Mortgagor (and each of them) and all subsequent owners, encumbrancers and
tenants of the Mortgaged Property, and shall inure to the benefit of Mortgagee,
its successors and assigns. The word "Mortgagor" shall be construed as if it
read "Mortgagors" whenever the sense of this Mortgage so requires and if there
shall be more than one Mortgagor, the obligations of the Mortgagors shall be
joint and several.
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30. No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of any and all of
the terms and provisions of this Mortgage to be performed by Mortgagor.
Mortgagee may release, regardless of consideration and without the necessity
for any notice to or consent by the holder of any subordinate lien on the
Mortgaged Property, any part of the security held for the obligations secured
by this Mortgage without, as to the remainder of the security, in anywise
impairing or affecting the lien of this Mortgage or the priority of such lien
over any subordinate lien.
31. Governing Law, etc. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Mortgagor expressly acknowledges that by its terms the
Note shall be governed and construed in accordance with the laws of the State
of New York, without regard to principles of conflict of law, and for purposes
of consistency, Mortgagor agrees that in any in personam proceeding related to
this Mortgage the rights of the parties to this Mortgage shall also be governed
by and construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State, without regard to principles
of conflict of law.
32. Waiver of Trial by Jury. Mortgagor and Mortgagee each hereby
irrevocably and unconditionally waive trial by jury in any action, claim, suit
or proceeding relating to this Mortgage and for any counterclaim brought
therein. Mortgagor hereby waives all rights to interpose any counterclaim in
any suit brought by Mortgagee hereunder and all rights to have any such suit
consolidated with any separate suit, action or proceeding.
33. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Mortgage shall be used interchangeably in singular or plural form and the
word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or owners
of the Mortgaged Property or any part thereof or interest therein," the word
"Mortgagee" shall mean "Mortgagee or any subsequent holder of the Notes," the
word "Note" shall mean "the Note or Notes or any other evidence of indebtedness
secured by this Mortgage," the word "person" shall include any individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, and the words "Mortgaged Property"
shall include any portion of the Mortgaged Property or interest therein.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa. The
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captions in this Mortgage are for convenience or reference only and in no way
limit or amplify the provisions hereof.
34. Industrial Plant Mortgage. This Mortgage is an industrial
plant mortgage within the broadest interpretation of the "industrial plant
mortgage doctrine" under the laws of the Commonwealth of Pennsylvania.
35. Future Advances. This Mortgage is executed and delivered to
secure, among other things, future advances. It is understood and agreed that
this Mortgage secures present and future advances made for the benefit of
Mortgagor and that the lien of such future advances shall relate back to the
date of this Mortgage.
36. Receipt of Copy. Mortgagor acknowledges that it has received
a true copy of this Mortgage.
37. Release. If Mortgagor shall and does pay to Mortgagee the
full principal amount of the indebtedness secured hereby, together with all
interest accrued thereon, and keeps all the other covenants and agreements
contained herein and in the Notes and in the other Loan Documents, all in the
manner and at the times set forth herein or in the Notes and in the other Loan
Documents, and if Mortgagor shall also pay all satisfaction costs, including,
but not limited to, reasonable attorneys' fees and the cost of recording a
satisfaction piece and, if appropriate, a power-of- attorney to satisfy this
Mortgage, then and from thenceforth this Mortgage and the estate hereby
created, granted, transferred and assigned shall cease and become void.
38. Open-End Mortgage Provisions. Subject to the provisions of
the Credit Agreement, (a) Mortgagor agrees that maintenance charges and costs
incurred to protect the Mortgaged Property or the lien of this Mortgage shall
include without limitation, expenses incurred and expenditures made by
Mortgagee for any one or more of the following: (i) premiums upon casualty and
liability insurance paid by Mortgagee whether or not Mortgagee or a receiver is
in possession, if reasonably required, without regard to the amount or type of
insurance in effect at the time any receiver or mortgagee takes possession of
the Mortgaged Property; (ii) payments required or deemed by Mortgagee to be for
the benefit of the Mortgaged Property or required to be made by the owner of
the Mortgaged Property under any grant or declaration of easement, easement
agreement, reciprocal easement agreement, agreement with any adjoining land
owners or other instruments creating covenants or restricition for the benefit
of or affect the Mortgaged Property; and (iii) operating deficits incurred by
Mortgagee in possession of the Mortgaged Property or reimbursed by Mortgagee to
any receiver.
(b) Mortgagor agrees that expenses incurred by Mortgagee by
reason of a default by Mortgagor under this Mortgage shall include without
limitation (i) reasonable attorneys' fees and
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other costs incurred in connection with the foreclosure of the Mortgage, or
execution upon the Note or enforcement of the other remedies provided in this
Mortgage or the other Loan Documents and in connection with any other
litigation or administrative proceeding to which the Mortgagee may be or become
or be threatened or contemplated to be a party, including probate and
bankruptcy proceedings, or in the preparation for the commencement or defense
of any such suit or proceeding, including filing fees; (ii) appraisers' fee;
(iii) outlays for documents and expert evidence, witness fees, stenographer's
charges, and publication costs; (iv) costs (which may be estimated as to items
to be expended after entry of judgment) for procuring all such abstracts of
title, title charges and examinations, title insurance policies and similar
data and assurances with respect to title and value as Mortgagee may deem
reasonably necessary either to prosecute or defend such suit, or in case of
foreclosure, to evidence to bidders at any sale which may be had pursuant to
the foreclosure judgment the true condition of the title to or the value of the
Mortgaged Property; and (v) reasonable fees and expenses of professional
consultants including preparation of environmental reports and engineering
reports with respect to the condition of the Mortgaged Property.
(c) Any agreement or contract, whether written or oral, entered
into by Mortgagor shall expressly provided that any party, person or entity
("Contractor") who has a direct agreement or contract with Mortgagor or any
party, person or entity who entered into a direct agreement or contract with
Contractor to perform work or provide materials to the Mortgaged Property
irrevocably waives and relinquishes any rights which it may have to send a
written notice pursuant to 42 Pa. Cons. Stat. Ann. Section 8143(b) and (d).
(d) By delivery of this Open-End Mortgage, Mortgagee and
Mortgagor agree that the provisions of 42 Pa. Cons. Stat. Ann Section 8144
are not waived, but rather, all benefits under said statute shall be applicable
to this Open-End Mortgage.
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This Mortgage has been duly executed by Mortgagor on the date first above
written.
ATTEST HEDSTROM CORPORATION
[corporate seal]
By: /s/ ANDREW S. ROSEN By: /s/ ALAN B. MENKES
--------------------- -----------------------
Andrew S. Rosen Alan B. Menkes
Vice President Vice President
The address of the within-named Mortgagee is 11 Madison Avenue, New York, New
York 10010.
For the Mortgagee:
CREDIT SUISSE FIRST BOSTON
/s/ IRA LUBINSKY
-----------------------------
Name: Ira Lubinsky
Vice President
/s/ EDWARD E. BARR
Edward E. Barr
Associate
24
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this, the ____ day of June, 1997, before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared Alan B. Menkes, who acknowledged himself/herself to be a
Vice Presidnet of HEDSTROM CORPORATION, a Delaware corporation, and that
s/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/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ SARAH L. MORRIS
------------------------------
Notary Public
[Notarial Seal]
My Commission Expires: SARAH L. MORRIS
NOTARY PUBLIC State of New York
No. 01M05071845
Qualified in New York County
Commission Exprires January 21, 1999
25
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this, the ____ day of June, 1997, before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared Ira Lubinsky, who acknowledged himself/herself to be a Vice President
of CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation, and that s/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/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ SARAH L. MORRIS
------------------------------
Notary Public
[Notarial Seal]
My Commission Expires: SARAH L. MORRIS
NOTARY PUBLIC State of New York
No. 01M05071845
Qualified in New York County
Commission Exprires January 21, 1999
26
Schedule A
PARCEL ONE: (fee simple title)
All that certain piece, parcel or trace of land situate, lying and being in the
Township and County of Bedford and Commonwealth of Pennsylvania, more
particularly bounded and described in accordance with the Survey of Norman S.
Van Why, Professional Land Surveyor No. 22353-E, said survey dated May 1, 1985,
revised January 4, 1991 as follows:
BEGINNING at a railroad spike located 18.7 feet Southeast of the centerline of
Legislative Route No. 05042, thence along and in the right-of-way of same the
following courses and distances: North 66 degrees 56 East 278.3 feet to an iron
pipe located 22.3 feet Southeast of the centerline of L.R. No. 05042; North 74
degrees 36' East 162.8 feet to an iron pipe located 28 feet Southeast of said
centerline; North 78 degrees 36' East 203.7 feet to an iron pipe located 29.5
feet Southeast of said centerline; thence North 62 degrees 41' East 350.87 feet
to a nail in L.R. No. 05042 on the right-of-way of the Pennsylvania Turnpike;
thence by right-of-way of the Pennsylvania Turnpike, South 43 degrees 49' East
crossing over a 60-foot right-of-way of the Bedford Branch of the Pennsylvania
Railroad (abandoned) a distance of 1328.40 feet to an iron pipe along the
Pennsylvania Turnpike right-of-way and 110 feet Southwest of Pennsylvania
Turnpike station marker 998 + 16.44; thence by lands formerly of Mary C.
Fisher, the following courses and distances: South 57 degrees 38' West 263.10
feet to an iron pipe; South 41 degrees 55' West 99.00 feet to an iron pipe;
South 56 degrees West 247.50 feet to an iron pipe; and South 54 degrees 47'
West 186.00 feet to an iron pipe located in the 60-foot right-of-way of Mt.
Dallas Branch of the Pennsylvania Railroad (abandoned) thence continuing across
the right-of-way of the Mt. Dallas Branch of the Pennsylvania Railroad
(abandoned), South 40 degrees 26' West 47.81 feet to an iron pipe located at
the intersection of the right-of-way of L.R. No. 1064 - Sec. 1 of the
Pennsylvania Railroad (abandoned); thence along the 60-foot right-of-way of the
Mt. Dallas Branch of the Pennsylvania Railroad (abandoned), North 85 degrees
18' West 1039.87 feet to a point; thence again crossing over the right-of-way
of the Pennsylvania Railroad (abandoned), North 04 degrees 42' East 60 feet to
an iron pipe; thence along a curve whose degree of curvature is 14 degrees 20'
and whose radius is 400.78 feet and whose chord bearing is North 74 degrees 58'
East a chord distance of 233.2 feet to an iron pipe; thence North 24 degrees
18' West 961.71 feet to an iron pipe in the right-of-way of L.R. No. 05042 a
distance of 18.0 feet Southeast of the centerline of L.R. No. 05042; thence in
said right-of-way, North 66 degrees East 40.0 feet to a railroad spike, the
place of BEGINNING.
EXCEPTING AND RESERVING two parcels of land containing 1.108 acres and 0.630
acres respectively and the access easements for
27
ingress, egress and regress referenced therein conveyed by Hedstrom Company to
Bedford County, Pennsylvania Industrial Development Authority by Deed dated
December 5, 1978 and recorded in the Office of the Recorder of Deeds in and for
Bedford County, Pennsylvania, in Record Book 7, page 197.
PARCEL TWO: (equitable title)
ALL those two certain pieces, parcels or tracts of land situate, lying and
being in the Township of Bedford, County of Bedford and Commonwealth of
Pennsylvania, more particularly bounded and described as follows:
BEGINNING at a nail, which nail is 96.73 feet East of the Northwest corner of
the existing Hedstrom plant facility; thence by other lands of Hedstrom Co.,
North 28 degrees 26' West 100 feet to an iron pin; thence by same, North 61
degrees 34' East 482.66 feet to an iron pin; thence by same, South 28 degrees
26' East 100 feet to a stake at the existing plant facility; thence by the said
existing plant facility, South 61 degrees 34' West 482.66 feet to a nail, the
place of BEGINNING
TRACT NO. 2:
BEGINNING at an iron pin, said iron pin being 2.7 feet South of the
Southeastern corner of the existing plant facility; thence by the said existing
Hedstrom plant facility, North 28 degrees 26' West 285.66 feet to a point;
thence by same, North 61 degrees 34' East 96 feet to a railroad spike; thence
by other lands of Hedstrom Co., South 28 degrees 26' East 285.66 feet to an
iron pin; thence by same, South 61 degrees 34' West 96 feet to an iron pin, the
place of BEGINNING.
TOGETHER with a right-of-way across the driveways of the existing Hedstrom
plant facility for ingress, egress and regress to and from the tracts above
described.