OPEN-END MORTGAGE
(This Mortgage secures future advances)
THIS INDENTURE made this 4th day of April, 1996, effective as of the 4th
day of April, 1996, between PIDC FINANCING CORPORATION, a nonprofit corporation
organized and existing under and by virtue of the laws of the Commonwealth of
Pennsylvania (the "Mortgagor"), and THE PENNSYLVANIA INDUSTRIAL DEVELOPMENT
AUTHORITY, a public body corporate and politic, organized and existing under and
by virtue of the laws of the Commonwealth of Pennsylvania, having its principal
place of business in Harrisburg, Pennsylvania ("PIDA").
WHEREAS, PIDA, under a Loan Agreement bearing even date herewith (the "Loan
Agreement"), incorporated herein by reference thereto and made a part hereof,
has agreed to lend the Mortgagor the principal sum of Two Million Dollars
($2,000,000) (the "Loan") upon terms and subject to conditions as set forth
therein;
WHEREAS, the Mortgagor under a Note bearing even date herewith (the
"Note"), incorporated herein by reference thereto and made a part hereof, is
obligated to pay unto PIDA on or before the first day of May, 2011, the
principal sum of Two Million Dollars ($2,000,000), together with interest
thereon, lawful money of the United States of America in the manner provided in
the Note and in the Loan Agreement, and to perform all of the provisions of the
Note and this Mortgage, as therein and herein set forth; and
WHEREAS, PlDA's agreement to make the Loan has been made subject to and in
reliance upon execution and delivery of the Loan Documents;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that the Mortgagor in
consideration of the principal indebtedness, and to secure the payment thereof
and all other sums due or to become due under the Loan Documents, including
without limitation the Note, the Loan Agreement, this Mortgage and the
Assumption Agreement (the "Indebtedness") and the performance of all other
provisions of the Loan Documents, intending to be legally bound by these
presents, does hereby grant, bargain, sell, convey, release, alien, confirm and
assign unto PIDA, its successors and assigns, all that certain parcel of land
fully and accurately described on Exhibit A, attached hereto and made a part
hereof.
TOGETHER with all and singular the buildings and improvements erected or to
be erected thereon, streets, alleys, passages, ways, waters, watercourses,
rights, liberties, privileges, hereditaments and appurtenances whatsoever,
thereunto belonging or in anywise appertaining, and the reversions and
remainders and rents, issues and profits thereof, including all income arising
therefrom and all insurance proceeds and proceeds of condemnation awards
(collectively, the "Premises").
TO HAVE AND TO HOLD the Premises hereby granted or mentioned and intended
so to be unto PIDA, its successors and assigns, to and for the only proper use
and behoof of PIDA, its successors and assigns forever.
PROVIDED, HOWEVER, that if there shall be and is paid PIDA the Indebtedness
together with interest thereon and any other sums properly payable under the
terms of the Loan Documents, on the date and in the manner provided in the Loan
Documents, and all the other covenants and promises herein and therein contained
are kept by the particular parties subject thereto, then and from thenceforth
this Mortgage and the estate hereby created, granted, transferred and assigned
shall be void, but otherwise shall remain in full force and effect.
AND THE MORTGAGOR HEREBY FURTHER REPRESENTS, COVENANTS AND AGREES AS
FOLLOWS:
1. The Mortgagor has good, valid and marketable title to the Premises. The
Mortgagor has the right, full power and lawful authority to grant, bargain,
sell, convey, assign, transfer, mortgage, pledge, set over and confirm the same
to PIDA in the manner and form herein done. The Premises are free and clear of
all liens and encumbrances except those of record which have been previously
disclosed in writing to PIDA. This Mortgage is and shall be subordinate in lien
and in payment only to that certain mortgage in the principal sum of
$4,094,684.93 encumbering the Premises given to MERIDIAN BANK, dated September
28, 1995 which principal sum shall be reduced to the sum of $4,000,000 on the
same date hereof (the "Bank Mortgage"). The Mortgagor will warrant and defend
the rights and title of PIDA to all of the Premises against all claims, except
the Bank Mortgage.
2. The proceeds of the Note secured hereby shall be used solely for the
purpose of paying a part of the cost of establishing an industrial development
project (the "Project") to be purchased by MOTHERS WORK, INC. (the "Industrial
Occupant") pursuant to the Premises Agreement. The Mortgagor represents and
warrants that no default has occurred under the Premises Agreement on the part
of Mortgagor or on the part of Industrial Occupant of which Mortgagor has
knowledge.
3. The Mortgagor will perform promptly all the terms, covenants, and
conditions required under the Premises Agreement, and the Mortgagor will do or
cause to be done all things necessary to preserve unimpaired its rights
thereunder and will immediately notify PIDA in writing of any default under the
Agreement.
4. The Mortgagor will immediately do or cause to be done from time to time
all things necessary to maintain and preserve its corporate existence, rights,
franchises and privileges and will duly observe, conform, obey and comply with
or will cause due observation, conformance. obedience and compliance with all
requirements of any court or governmental authority relative to the Premises.
The Mortgagor shall duly and punctually pay, or cause to be paid, the
Indebtedness, and at the time and times and in the manner as provided in and by
the Loan Documents, and shall perform all other agreements and provisions hereof
and thereof, and pay when due all other obligations and debts hereby secured.
The Mortgagor shall duly and punctually pay, or cause to be paid, all
amounts secured by the Bank Mortgage and shall duly and punctually perform or
cause to be performed in accordance with the terms of the Bank Mortgage, the
Note secured thereby and any other obligations undertaken in connection
therewith.
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The Mortgagor will duly and promptly pay and discharge, as the same shall
become due and payable and before they become delinquent, all taxes, water and
sewer rents, assessments and other governmental charges, levied or assessed or
imposed upon or against the property mortgaged hereby or upon the rents, issues,
income and profits therefrom so as to prevent the same from becoming or being an
enforceable lien or claim against the property mortgaged hereby or the interest
of the Mortgagor having a priority over the lien of this Mortgage or the
obligations of Mortgagor to PIDA under the Note or the Loan Agreement. Upon
request, the Mortgagor will furnish, or will cause to be furnished to PIDA, not
less than fifteen (15) days prior to the date on which payment of the same would
become delinquent, receipts or other evidence satisfactory to PIDA of the
payment of all such taxes, rates, assessments and other governmental charges.
5. The Mortgagor shall keep all buildings and improvements now or hereafter
erected upon the Premises insured for the benefit of PIDA under an all-risk
hazard insurance policy covering physical loss or damage including fire and
extended coverage, collapse, liquid damage, flood (to the extent required
below), earthquake and comprehensive boiler/machinery, written on a replacement
cost basis in an amount not less than the full insurable value of the property
mortgaged hereby (excluding (on fire and extended coverage only) foundations and
other parts below the surface of the lowest floor), as determined, upon request
of PIDA, not more than once annually by an appraiser or rating bureau
satisfactory to PIDA. In addition, the aforesaid policy shall have attached
thereto, or the Mortgagor shall provide or cause to be provided by separate
policy, business interruption insurance, insuring all fixed charges of the
Industrial Occupant (or any other person or entity that may from time to time be
the Mortgagor's lessee or purchaser of the mortgaged premises), including the
amount necessary to repay this Mortgage, for a period of not less than one year,
such insurance to be acceptable to PIDA. During the period of construction of
the Project on the Premises, the Mortgagor shall maintain builder's risk
insurance in an amount satisfactory to PIDA and shall require its contractor to
maintain worker's compensation insurance. PIDA shall receive copies of all of
said policies. PIDA shall receive copies of all of said policies upon the
execution of this Mortgage and upon each renewal, expansion or modification
thereof, together with a current Xxxxx 27 Evidence of Property Insurance
Certificate. Any modification of such insurance policy must be approved by PIDA
in writing prior to the effective date of such modification. PIDA may settle all
claims under all such policies except workers compensation and may demand,
receive and receipt for all moneys becoming payable thereunder. The proceeds
under any policy shall be paid by the insurer to Mortgagor and PIDA as their
respective interests may appear, and PIDA in its discretion may apply the amount
so collected toward the payment of the Indebtedness or toward the alteration,
reconstruction, repair or restoration of the damaged portion of the Premises or
any portion thereof. The Mortgagor shall prepay the premiums for all such
insurance for at least one (1) month in advance and thereafter deliver to PIDA
evidence of payment of all premiums due on such insurance together with
certificates of such insurance at least thirty (30) days before payment is due.
The Mortgagor shall also secure such certificates from public officials as are
available for the purpose or otherwise demonstrate to the satisfaction of PIDA
that the Premises is not located within an area identified by Federal Emergency
Management Agency as having "special flood hazards," as such term is used in the
National Flood Insurance Act of 1968, as amended and supplemented by The Flood
Disaster Protection Act of 1973, and in regulations, interpretations and rulings
thereunder or in a zoned flood
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plain or flood hazard area as determined by local findings, determinations,
ordinances, regulations or rulings, and if located therein, the Mortgagor shall
secure the amount of flood insurance required by PIDA in its discretion and
demonstrate payment of all premiums due therefor. All insurance policies
described in this Section 5 shall be written by insurance companies licensed to
do business within the Commonwealth of Pennsylvania and satisfactory to PIDA.
While this Mortgage is in effect, the Mortgagor shall also maintain worker's
compensation insurance (containing a stop gap endorsement) and public liability
on the Premises in amounts satisfactory to PIDA and shall deliver copies of such
policies to PIDA. Insurance carried in accordance with this Section 5 shall be
endorsed to provide
(a) With respect to all liability insurance policies, PIDA is included
as additional insured, with the understanding that any obligation imposed
upon Mortgagor (including without limitation, the liability to pay
premiums) shall be the sole obligation of Mortgagor and not that of PIDA.
(b) Property and business interruption insurance policies shall
include a standard lender's loss payable endorsement in favor of PIDA. All
coverage shall be written with a valid agreed amount endorsement and in a
sufficient amount to prevent any coinsurance penalty and PIDA as additional
named insured with the understanding that any obligation imposed upon
Mortgagor (including with limitation, the liability to pay premiums) shall
be the sole obligation of Mortgagor and not that of PIDA. In the event of
Default, PIDA and other lenders to Mortgagor shall be named as sole loss
payees as their interests shall appear.
(c) With respect to all insurance maintained pursuant to this Section
5, the interests of PIDA are not invalidated by any action or inaction of
Mortgagor or any other natural or artificial person and PIDA is insured
regardless of any breach or violation by Mortgagor or any other person of
any warranties, declarations or conditions contained in such policies.
(d) With respect to all insurance maintained pursuant to this Section
5, such policies shall be endorsed to provide that: (i) the insurers
thereunder waive all rights of subrogation against PIDA, any right of
set-off and counterclaim and any other right to deduction whether by
attachment or otherwise, (ii) such insurance is primary without right of
contribution of any other insurance carried by or on behalf of PIDA, (iii)
if such insurance is cancelled by the insurer for any reason whatsoever
(including without limitation, nonpayment or premium) or any substantial
change is made in the coverage that affects the interests of PIDA, such
cancellation or substantial change is not to be effective as to PIDA until
thirty (30) days after receipt by PIDA of notice sent to PIDA as specified
in the Loan Agreement.
(e) On each anniversary of the Closing Date, Mortgagor shall furnish
PIDA with approved certification of all required insurance. Such
certification shall be executed by each insurer or by an authorized
representative of each insurer where it is not practical for such insurer
to execute the certificate itself. Such certification shall identify
underwriters, the type of insurance, the insurance limits and the policy
terms, and shall specifically list the special provisions enumerated for
such insurance required by this Section 5. Upon request, Mortgagor shall
furnish PIDA with copies of all insurance policies, binders and cover notes
or other evidence of such insurance.
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(f) Concurrently with the furnishing of all certifications referred to
in paragraph (e) of this Section 5, Mortgagor shall furnish PIDA with an
opinion of each insurance broker stating that all premiums then due have
been paid and that, in the opinion of such broker, the insurance is then in
accordance with the provisions of this Section 5. Furthermore, Mortgagor
shall cause each insurer or such broker to advise PIDA promptly in writing
of any default in the payment of any premiums or any other act or omission
on the part of Mortgagor or any contractor of Mortgagor which might
invalidate or render unenforceable, in whole or part, any insurance
provided hereunder. PIDA, at its sole option, may obtain such insurance if
not provided by Mortgagor, and, in such event, Mortgagor shall reimburse
PIDA upon demand for the cost thereof, together with interest from the date
of payment of the premiums by PIDA to the date on which Borrower repays
such premiums, at the rate provided in Section 14 hereof.
(g) Upon the occurrence and continuance of an Event of Default, all
proceeds payable from any property and casualty above which are payable to
Mortgagor shall be paid to PIDA and other lenders to Mortgagor, as their
interests shall appear without the consent of Mortgagor.
6. The Mortgagor shall keep the Premises and improvements thereon in good
condition and repair and shall not remove, demolish or materially alter in a
manner so as to reduce the value thereof the buildings or improvements on the
Premises nor commit or suffer waste with respect thereto. The Mortgagor shall
maintain the Premises in compliance with all applicable governmental
requirements. In the event of damage to the Premises caused by fire or other
casualty or condemnation, the Mortgagor shall restore the Premises to the
condition it was in prior to the occurrence of such damage, and shall further
comply with any additional requirements imposed by law, required by insurance,
or otherwise required, applicable to the Premises subsequent to such
restoration. The Mortgagor shall permit PlDA's agents at any reasonable time,
and from time to time, to enter upon the Premises and the buildings and
improvements constructed thereon for the purpose of inspecting and appraising
the same. While the Mortgage is outstanding and unpaid, neither the Mortgagor
nor its successors shall take or permit any action with respect to the property
mortgaged hereby which will in any manner impair PlDA's security under this
Mortgage, including but not limited to the creation of any additional debt
secured by the Premises, nor shall they, without the prior written approval of
PIDA, convey, transfer, encumber, hypothecate, lease or otherwise dispose of the
Premises.
7. The Mortgagor will, and hereby does, assign to PIDA as additional
security for the repayment of the Indebtedness, all its right, title and
interest in, to and under the Premises Agreement, together with all sums due
thereunder, and agrees that PIDA may collect and apply the same to the payment
of any sum required to be paid by the Mortgagor under the Note or this Mortgage,
provided, however, that by reason of such assignment the Mortgagor shall not be
relieved of, and PIDA does not assume, the Mortgagor's obligations under the
Agreement.
8. If PIDA retains the services of counsel in order to cure any default
under this Mortgage or any of the Loan Documents, reasonable attorneys' fees
shall be payable by the Mortgagor to PIDA and shall be secured hereby. The
Mortgagor shall also pay all costs in connection with the satisfaction of this
Mortgage of record.
9. An event of default hereunder (an "Event of Default") shall be any of
the following: (i) the occurrence of any Event of Default as defined in the Loan
Agreement, (ii) failure to pay any sum required to be paid under any of
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the Loan Documents within thirty (30) days after the same becomes due and
payable, (iii) default in the due and punctual payment of the principal of or
interest on any loan or debt instrument secured by the Premises after the same
shall become due and payable and any applicable cure period shall have expired,
or (iv) default in the due and punctual observance or performance of any of the
covenants or agreements contained in any loan or debt instrument secured by the
Premises which default shall have created a right of acceleration pursuant to
such loan or debt instrument. Upon the occurrence of any such Event of Default,
other than an Event of Default declared solely as a result of a breach by the
Industrial Occupant of Section 4.03 of the Assumption Agreement, at the option
of PIDA: (a) the entire unpaid balance of the Indebtedness shall become due and
payable immediately, without further notice to the Mortgagor, and shall be
recoverable by PIDA immediately or at any time or times thereafter, without stay
of execution or other process; (b) PIDA may take immediate possession of the
Premises as provided hereunder; and (c) PIDA may immediately exercise any and
all other rights and remedies provided in this Mortgage and in the Note, or
which may be available to PIDA, and all such rights and remedies shall be
cumulative and concurrent and may be pursued singly, successively or together in
PlDA's sole discretion, and may be exercised from time to time and as often as
an occasion, or occasions, therefor shall occur until the Indebtedness hereby
secured is paid in full.
10. Subject to the rights of MERIDIAN BANK under the First Mortgage, if
PIDA shall take possession of the Premises as provided hereunder, PIDA may in
its sole discretion: (a) hold, manage, operate and lease the same to the
Mortgagor or any other person or persons, on such terms and for such periods of
time as PIDA may deem appropriate and the provisions of any lease made by PIDA
pursuant hereto shall be valid and binding upon the Mortgagor notwithstanding
the fact that PlDA's right of possession may terminate or this Mortgage may be
satisfied of record prior to the expiration of the term of such lease; (b) make
such alterations, additions, improvements, renovations, repairs and replacements
thereto as PIDA may deem proper; (c) remodel such improvements so as to make the
same available in whole or in part for other industrial purposes; and (d)
collect the rents, issues and profits arising from the Premises, past due and
thereafter becoming due, and apply the same, in such order of priority as PIDA
may determine, to the payment of all charges and commissions incidental to the
collection of rents and the management of the Premises and all other sums or
charges required to be paid by the Mortgagor hereunder. In addition to the
payment of such charges and commissions, PIDA shall be entitled to retain not
less than fifteen percent (15%) of such rents, issues and profits in payment
for the services of PIDA. All moneys advanced by PIDA for the purposes aforesaid
and not repaid out of the rents collected shall immediately and without demand
be repaid by the Mortgagor to PIDA, together with interest thereon at the rate
of fifteen percent (15%) per annum, and shall be added to the principal of the
Indebtedness and be secured by this Mortgage. The production of a receipt by
PIDA shall be conclusive proof of a payment or advance authorized hereby, and
the amount and validity thereof. The taking of possession and collection of
rents by PIDA as aforesaid shall not be construed to be an affirmation of any
lease of the Premises or any part thereof, and PIDA or any other purchaser at
any foreclosure sale may, if otherwise entitled to do so, exercise the right to
terminate any such lease as though such taking of possession and collection of
rents had not occurred.
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11. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN
ATTORNEY TO CONFESS JUDGMENT AGAINST THE MORTGAGOR. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE MORTGAGOR, THE MORTGAGOR HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE
COUNSEL OF THE MORTGAGOR, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE
MORTGAGOR HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER
THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH
OF PENNSYLVANIA.
IN CASE OF ANY EVENT OF DEFAULT HEREUNDER, (OF WHICH AN AFFIDAVIT ON BEHALF
OF PIDA SHALL BE SUFFICIENT EVIDENCE), THEN, AND IN ANY SUCH EVENT, ANY ATTORNEY
OF ANY COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE IS HEREBY AUTHORIZED AND
EMPOWERED TO APPEAR FOR THE MORTGAGOR, AND ALL PERSONS CLAIMING UNDER OR THROUGH
THE MORTGAGOR, AND AS ATTORNEY FOR THE MORTGAGOR AND ALL PERSONS CLAIMING UNDER
OR THROUGH THE MORTGAGOR, TO SIGN AN AGREEMENT FOR ENTERING AN AMICABLE ACTION
OF EJECTMENT FOR POSSESSION OF THE PREMISES OR ANY PART THEREOF AND TO CONFESS
JUDGMENT THEREIN AGAINST THE MORTGAGOR, IN FAVOR OF PIDA, WHEREUPON A WRIT FOR
POSSESSION MAY IMMEDIATELY ISSUE FOR THE POSSESSION OF THE PREMISES. WITHOUT ANY
PRIOR COMPLAINT, WRIT OR PROCEEDING WHATSOEVER; AND FOR SO DOING THIS MORTGAGE.
OR A COPY HEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT. THIS
POWER MAY BE EXERCISED AS OFTEN AS PIDA SHALL REQUIRE AND SHALL NOT BE EXHAUSTED
BY ONE OR MORE OR BY ANY IMPERFECT EXERCISE THEREOF.
IF MORTGAGOR WISHES TO CHALLENGE ANY JUDGMENT CONFESSED PURSUANT TO THIS
SECTION, IT SHALL DO SO ONLY BY FILING A PETITION TO OPEN THE JUDGMENT PURSUANT
TO PENNSYLVANIA RULES OF CIVIL PROCEDURE RULE 2959, AS IN EFFECT FROM TIME TO
TIME ("RULE 2959"), AND SHALL NOT OTHERWISE INTERFERE (BY FILING ANY CIVIL
ACTION, XXXX IN EQUITY, OR OTHERWISE) WITH THE OPERATION OF THE JUDGMENT GRANTED
PURSUANT TO THIS SECTION. MORTGAGOR EXPRESSLY ACKNOWLEDGES THAT THE PROCEDURE
AVAILABLE TO IT THROUGH RULE 2959 WILL PROVIDE IT WITH A FULL AND FAIR
OPPORTUNITY TO BE HEARD AS TO ANY REASON WHY JUDGMENT SHOULD NOT BE ENTERED
AGAINST IT.
IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED THE SAME SHALL BE
DISCONTINUED OR POSSESSION OF THE PREMISES SHALL REMAIN IN OR BE RESTORED TO THE
MORTGAGOR, PIDA 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 PREMISES. PIDA MAY BRING SUCH AMICABLE ACTION IN
EJECTMENT BEFORE OR AFTER JUDGMENT ON THIS MORTGAGE OR ON THE NOTE, OR AFTER A
SALE OF THE PREMISES BY THE SHERIFF. IF AFTER EXECUTION AND RETURN OF THE WRIT
OF POSSESSION, THE
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MORTGAGOR SHALL RE-ENTER INTO POSSESSION OF THE PREMISES, THE PROTHONOTARY,
UPON PRAECIPE AND AFFIDAVIT SETTING FORTH THE FACTS FILED WITHIN THREE YEARS
AFTER THE RETURN OF THE WRIT UPON WHICH EXECUTION WAS COMPLETED SHALL ISSUE A
NEW WRIT OF POSSESSION.
THE MORTGAGOR ACKNOWLEDGES THAT IT UNDERSTANDS THE MEANING AND EFFECT OF
THE CONFESSION CONTAINED IN THE FOREGOING PARAGRAPH. SPECIFICALLY, THE MORTGAGOR
UNDERSTANDS AMONG OTHER THINGS THAT (1) IT IS RELINQUISHING THE RIGHT TO HAVE
NOTICE EXCEPT AS PROVIDED HEREIN, AN OPPORTUNITY TO BE HEARD AND THE RIGHT TO
HAVE THE BURDEN OF PROOF OF DEFAULT REST ON PIDA PRIOR TO THE ENTRY OF JUDGMENT,
(2) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN ON ITS PROPERTY, (3) IT WILL BEAR
THE BURDEN AND EXPENSE OF ATTACKING THE JUDGMENT AND CHALLENGING EXECUTION ON
THE LIEN AND SALE OF THE PROPERTY COVERED THEREBY, AND (4) ENOUGH OF ITS
PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL AMOUNT, INTEREST, COSTS AND
ATTORNEY'S FEES.
12. The Mortgagor waives the right of inquisition on any property levied
upon under a judgment obtained in proceedings to collect the Indebtedness hereby
secured or in proceedings on this Mortgage, and further waives and releases any
and all benefits that may accrue to the Mortgagor by virtue of any law relating
to appraisements, stay of execution or exemption of the Premises from levy or
sale under execution, now or hereafter in force. A foreclosure sale shall
constitute a foreclosure sale of all equity whatsoever of the Mortgagor in the
Premises and PIDA shall, if it is the purchaser at the sale, hold the Premises
and any part thereof so purchased free of any equity of redemption by reason of
any circumstances whatsoever and not as collateral for any obligation.
13. No extension or indulgence granted to the Mortgagor, and no alteration,
change or modification of the Note consented or agreed to by PIDA, and no other
act or omission of PIDA, including the taking of additional security or the
release of any security, or the waiver by PIDA or failure by PIDA to enforce any
provision of any of the Loan Documents or to declare a default with respect
thereto, shall constitute a release of the lien and obligation of this Mortgage
or be interposed as a defense against the enforcement of this Mortgage, or
operate as a waiver of any subsequent defaults or otherwise affect the right of
PIDA to exercise all rights or remedies stipulated herein and in any of the Loan
Documents, except an act of PIDA which constitutes an express, effective,
written release and satisfaction of the Note.
14. In the event of any failure to pay or cause to be paid all amounts due
under any indebtedness secured by the Premises, or any taxes, water and sewer
rents, charges, claims, assessments, assessments for public improvements, liens
or encumbrances or to furnish and pay for the insurance required hereunder, or
to keep the Premises in good condition and repair, or to pay any other amount
required to be paid by any person under any of the Loan Documents, PIDA may, at
its option, pay any or all such items together with penalties and interest
thereon, and procure and pay for such insurance and repairs; and PIDA may at any
time and from time to time advance such additional sum or sums as PIDA in its
sole discretion may deem necessary to protect the security of this Mortgage. All
such sums so paid or advanced by PIDA shall immediately and without demand be
secured hereby and be repaid by the Mortgagor to PIDA,
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together with interest thereon at the rate of fifteen percent (15%) per
annum, and shall be added to the principal of the indebtedness and be secured by
this Mortgage. The production of a receipt by PIDA shall be conclusive proof of
a payment or advance authorized hereby, and the amount and validity thereof.
15. The Mortgagor covenants and agrees that it shall in the Premises
Agreement require of the Industrial Occupant and that it shall further require
of any subsequent buyer, lessee or occupant of the Premises, that the Premises
shall be used solely for purposes at all times eligible for financing by PIDA
under the provisions of the Pennsylvania Industrial Development Authority Act,
regulations, statements of policy, guidelines and interpretations of the PIDA
Board and staff, each as in effect from time to time, until the Indebtedness
shall have been paid in full.
16. All covenants, stipulations and agreements contained in this Mortgage
by or on behalf of the Mortgagor shall be binding upon its successors in title
or interest and its assigns, whether so expressed or not.
17. This Mortgage may be amended only with the written consent of the
Mortgagor, PIDA and the Industrial Occupant.
18. Notice to the Mortgagor under the Note or this Mortgage shall be deemed
sufficient if given in accordance with Section 10.14 of the Loan Agreement.
19. The provisions of this Mortgage are severable. In the event of the
unenforceability or invalidity of any one or more of the terms, covenants,
conditions or provisions of this Mortgage under federal, state or other
applicable law, such unenforceability or invalidity shall not render any other
of the terms, covenants, conditions or provisions hereof unenforceable or
invalid. In the event any waiver by Mortgagor hereunder is prohibited by law,
including but not limited to the waiver of exemption from execution, such waiver
shall be and be deemed to be deleted herefrom.
20. All capitalized terms not defined herein shall have the meanings
ascribed to them in the Loan Agreement.
21. This Mortgage is an open-end mortgage as defined at 42 PA C.S.A.
8143(f) and as such is entitled to all the benefits of 42 PA C.S.A. 8143 et
seq., X.X. 000, Xx. 000, Xxx 000 of 1990 (the "Act"). The parties to this
Mortgage intend that, in addition to any other debt or obligation secured
hereby, this Mortgage shall secure unpaid balances of loan advances made after
the Mortgage is left for recording, whether such advances are made pursuant to
an obligation of PIDA or otherwise. The maximum amount of unpaid loan
indebtedness (which shall consist of unpaid advances made either before or
after, or both before and after, this Mortgage is left for recording) and which
may be outstanding at any time shall be the face amount of the Note, plus
accrued and unpaid interest thereon and any additional obligations payable
hereunder or thereunder. In addition to the other obligations of the Mortgagor
secured hereby, this Mortgage secures unpaid balances of advances made, with
respect to the Premises, for the payment of taxes, assessments, maintenance
charges, insurance premiums or costs incurred for the protection of the Premises
or the lien created by this Mortgage and other expenses, including but not
limited to costs and attorney's fees incurred by PIDA by reason of default by
Mortgagor under this Mortgage or under any of the Loan Documents.
22. This is a purchase money mortgage.
23. This is a construction mortgage and secures an obligation incurred for
the construction of an obligation on land including the acquisition cost of
the land.
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IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage on the day and
year first above written.
ATTEST: /s/ J. Xxxxxx X. Xxx
---------------------
Assistant Secretary
PIDC FINANCING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Senior Vice President
(CORPORATE SEAL)
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EXHIBIT "A"
THE PREMISES
ALL THAT CERTAIN lot or piece of ground with the buildings and improvements
thereon erected SITUATE in the Fifth Xxxx of the City of Philadelphia and
described in accordance with a Survey and Plan of Property made February 10,
1995, and revised July 17, 1995 by Xxxxxxxx X. Xxxxxx, Surveyor and Regulator of
the Third Survey District:
BEGINNING at the point formed by the intersection of the Southerly side of
Spring Garden Street (120 feet wide) with the Westerly side of Fifth Street (70
feet wide); Thence extending South 13 degrees 37 minutes 25 seconds West, along
the said Westerly side of Fifth Street, the distance of 58.984 feet to a point
of curve; Thence extending Southwardly, along the said Westerly side of Fifth
Street, on the arc of a circle curving to the left, having a radius of 3855.419
feet, the distance of 176.224 feet to a point of tangency; Thence extending
South 11 degrees 00 minutes 17 seconds West, along the said Westerly side of
Fifth Street, the distance of 357.768 feet to a point on the Northerly side of a
certain right-of-way for Public Utility purposes (40 feet wide, lying within the
lines of former Noble Street, stricken and vacated from the City Plan by
Ordinance approved December 6, 1971); Thence extending South 11 degrees 00
minutes 17 seconds West, along the said Westerly side of Fifth Street, crossing
the Easterly end of said right-of-way, the distance of 40.501 feet to a point;
Thence extending South 11 degrees 00 minutes 17 seconds West, along the said
Westerly side of Fifth Street, the distance of 103.465 feet to a point of cure;
Thence extending Southwardly, along the said Westerly side of Fifth Street, on
the arc of a circle curving to the left, having a radius of 757.254 feet, the
distance of 94.102 feet to a point of tangency; Thence extending South 03
degrees 53 minutes 05 seconds West, along the said Westerly side of Fifth
Street, the distance of 44.770 feet to a point of the Northerly side of a
certain right-of-way for drainage purposed (10 feet wide, reserved by Ordinance
approved December 6, 1971); Thence extending 03 degrees 53 minutes 05 seconds
West, along the said Westerly side of Fifth Street crossing the Easterly end of
said right-of-way for drainage purposes, the distance of 10.199 feet to a point
on the Northerly side of Willow Street (30 feet wide); Thence extending South 82
degrees 33 minutes 12 seconds West, along the said Northerly side of Willow
Street, the distance of 180.741 feet to a point; Thence extending North 89
degrees 07 minutes 50 seconds West, along the said Northerly side of Willow
Street, the distance of 199.778 feet to a point on the Easterly side of Sixth
Street (70 feet wide); Thence extending North 09 degrees 57 minutes 50 seconds
East,
11
EXHIBIT A (cont'd)
THE PREMISES
along the said Easterly side of Sixth Street, crossing the Westerly end of
said right-of-way for drainage purposed, the distance of 10.127 feet to a point;
Thence extending North 09 degrees 57 minutes 50 seconds East, along the said
Easterly side of Sixth Street, the distance of 292.452 feet to a point on the
Southerly side of said right-of-way for Public Utility purposes; Thence
extending North 09 degrees 57 minutes 50 seconds East, along the said Easterly
side of Sixth Street, crossing the Westerly end of said right-of-way for Public
Utility purposes, the distance of 40.000 feet to a point; Thence extending North
09 degrees 57 minutes 50 seconds East, along the said Easterly side of Sixth
Street, the distance of 626.504 feet to a point on the said Southerly side of
Spring Garden Street; Thence extending South 80 degrees 18 minutes 06 seconds
East, along the said Southerly side of Spring Garden Street, the distance of
379.881 feet to the said Westerly side of Fifth Street, the first mentioned
point and place of beginning.
BEING known as Xx. 000 Xxxxx Xxxxx Xxxxxx.
CONTAINING IN AREA 342,545.82 sq. feet (7.86377 Acres)
BEING the same premises which SmithKline Xxxxxxx Corporation by Deed dated
8/2/1995 and recorded 9/29/1995 in Philadelphia County in Deed Book VCS 978 page
573 granted and conveyed unto PIDC Financing Corporation, a Pennsylvania
Non-Xxxxx Corporation, in fee.
Registry No./Parcel No.: 4 N 7 - 292
Brt No. 00-0-000000
Xxxx No.: 5th
