Exhibit 10.4
(Lancaster Co.)
OPEN-END MORTGAGE
AND SECURITY AGREEMENT [OBJECT OMITTED]
(THIS MORTGAGE SECURES FUTURE ADVANCES)
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (this "MORTGAGE") is made as
October 1, 2004, by XXXXXXX MANUFACTURING INC., a Delaware corporation (the
"Mortgagor"), with an address at 000 X. Xxxxx Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
in favor of PNC BANK, NATIONAL ASSOCIATION (the "MORTGAGEE"), with an address at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000.
WHEREAS, the Mortgagor is the owner of a certain tract or parcel of land
described in Exhibit A attached hereto and made a part hereof, together with the
improvements now or hereafter erected thereon; and
WHEREAS, the Mortgagor is providing a guaranty of a borrowing by The
Xxxxxxx Corporation (the "BORROWER") from the Mortgagee in an amount not to
exceed Three Million Dollars ($3,000,000) (the "LOAN"), which Loan is evidenced
by one or more promissory notes in favor of the Mortgagee (the "NOTE");
NOW, THEREFORE, for the purpose of securing the payment and performance of
the following obligations (collectively called the "OBLIGATIONS"):
(A) The Loan, the Note and all other loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Mortgagor or by the Borrower to
the Mortgagee or to any other direct or indirect subsidiary of The PNC Financial
Services Group, Inc., of any kind or nature, present or future (including any
interest accruing thereon after maturity, or after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding relating to the Mortgagor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect (including those acquired by assignment or participation), absolute or
contingent, joint or several, due or to become due, now existing or hereafter
arising, whether or not (i) evidenced by any note, guaranty or other instrument,
(ii) arising under any agreement, instrument or document, (iii) for the payment
of money, (iv) arising by reason of an extension of credit, opening of a letter
of credit, loan, equipment lease or guarantee, (v) under any interest or
currency swap, future, option or other interest rate protection or similar
agreement, (vi) under or by reason of any foreign currency transaction, forward,
option or other similar transaction providing for the purchase of one currency
in exchange for the sale of another currency, or in any other manner, or (vii)
arising out of overdrafts on deposit or other accounts or out of electronic
funds transfers (whether by wire transfer or through automated clearing houses
or otherwise) or out of the return unpaid of, or other failure of the Mortgagee
to receive final payment for, any check, item, instrument, payment order or
other deposit or credit to a deposit or other account, or out of the Mortgagee's
non-receipt of or inability to collect funds or otherwise not being made whole
in connection with depository or other similar arrangements; and any amendments,
extensions, renewals and increases of or to any of the foregoing, and all costs
and expenses of the Mortgagee incurred in the documentation, negotiation,
modification, enforcement, collection and otherwise in connection with any of
the foregoing, including reasonable attorneys' fees and expenses.
(B) Any sums advanced by the Mortgagee or which may otherwise become due
pursuant to the provisions of the Note or this Mortgage or pursuant to any other
document or instrument at any time delivered to the Mortgagee to evidence or
secure any of the Obligations or which otherwise relate to any of the
Obligations (as the same may be amended, supplemented or replaced from time to
time, the "LOAN DOCUMENTS").
The Mortgagor, for good and valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, does hereby give, grant,
bargain, sell, convey, assign, transfer, mortgage, hypothecate, pledge, set over
and confirm unto the Mortgagee and does agree that the Mortgagee shall have a
security interest in the following described property, all accessions and
additions thereto, all substitutions therefor and replacements and proceeds
thereof, and all reversions and remainders of such property now owned or held or
hereafter acquired (the "PROPERTY"), to wit:
(a) All of the Mortgagor's estate in the premises described in Exhibit
A, together with all of the easements, rights of way, privileges, liberties,
hereditaments, gores, streets, alleys, passages, ways, waters, watercourses,
rights and appurtenances thereunto belonging or appertaining, and all of the
Mortgagor's estate, right, title, interest, claim and demand therein and in the
public streets and ways adjacent thereto, either in law or in equity (the
"LAND");
(b) All the buildings, structures and improvements of every kind and
description now or hereafter erected or placed on the Land, and all facilities,
fixtures, machinery, apparatus, appliances, installations, machinery and
equipment, including all building materials to be incorporated into such
buildings and all electrical, heating, air conditioning and plumbing equipment
necessary for the operation of such buildings, now or hereafter attached to,
located in or used in connection with those buildings, structures or other
improvements (the "IMPROVEMENTS");
(c) All rents, issues and profits arising or issuing from the Land and
the Improvements (the "RENTS") including the Rents arising or issuing from all
leases, licenses, subleases or any other use or occupancy agreement now or
hereafter entered into covering all or any part of the Land and Improvements
(the "LEASES"), all of which Leases and Rents are hereby assigned to the
Mortgagee by the Mortgagor. The foregoing assignment shall include all fees,
charges, accounts or other payments for the use or occupancy of rooms and other
public facilities in hotels, motels, or other lodging properties, and all cash
or securities deposited under Leases to secure performance of lessees of their
obligations thereunder, whether such cash or securities are to be held until the
expiration of the terms of such leases or applied to one or more installments of
rent coming due prior to the expiration of such terms. The foregoing assignment
extends to Rents arising both before and after the commencement by or against
the Mortgagor of any case or proceeding under any Federal or State bankruptcy,
insolvency or similar law, and is intended as an absolute assignment and not
merely the granting of a security interest. The Mortgagor, however, shall have a
license to collect retain and use the Rents so long as no Event of Default shall
have occurred and be continuing or shall exist. The Mortgagor will execute and
deliver to the Mortgagee, on demand, such additional assignments and instruments
as the Mortgagee may require to implement, confirm, maintain and continue the
assignment of Rents hereunder; and
(d) All proceeds of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims.
To have and to hold the same unto the Mortgagee, its successors and
assigns, forever.
Provided, however, that if the Mortgagor shall pay to the Mortgagee
the Obligations, and if the Mortgagor shall keep and perform each of its other
covenants, conditions and agreements set forth herein and in the other Loan
Documents, then, upon the termination of all obligations, duties and commitments
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of the Mortgagor under the Obligations and this Mortgage, and subject to the
provisions of the paragraph entitled "Survival; Successors and Assigns", the
estate hereby granted and conveyed shall become null and void.
This Mortgage is an "Open-End Mortgage" as set forth in 42 Pa. C.S.A.
ss.8143 and secures obligations up to a maximum principal amount of indebtedness
outstanding at any time equal to double the face amount of the Note, plus
accrued and unpaid interest, including advances for the payment of taxes and
municipal assessments, maintenance charges, insurance premiums, costs incurred
for the protection of the Property or the lien of this Mortgage, expenses
incurred by the Mortgagee by reason of a default or Event of Default (as
hereinafter defined) by the Mortgagor under this Mortgage and advances for the
construction, alteration or renovation on the Property or for any other purpose,
together with all other sums due hereunder or secured hereby. All notices to be
given to the Mortgagee pursuant to 42 Pa. C.S.A. ss.8143 shall be given as set
forth in Section 18.
1. REPRESENTATIONS AND WARRANTIES. The Mortgagor represents and
warrants to the Mortgagee that (i) the Mortgagor has good and marketable title
to an estate in fee simple absolute in the Land and Improvements and has all
right, title and interest in all other property constituting a part of the
Property, in each case free and clear of all liens and encumbrances, except as
may otherwise be set forth on an Exhibit B hereto and (ii) its name, type of
organization, jurisdiction of organization and chief executive office are true
and complete as set forth in the heading of this Mortgage. This Mortgage is a
valid and enforceable first lien on the Property (except as set forth on Exhibit
B) and the Mortgagee shall, subject to the Mortgagor's right of possession prior
to an Event of Default, quietly enjoy and possess the Property. The Mortgagor
shall preserve such title as it warrants herein and the validity and priority of
the lien hereof and shall forever warrant and defend the same to the Mortgagee
against the claims of all persons.
2. AFFIRMATIVE COVENANTS. Until all of the Obligations shall have been
fully paid, satisfied and discharged the Mortgagor shall:
(a) PAYMENT AND PERFORMANCE OF OBLIGATIONS. Pay or cause to be paid
and perform all Obligations when due as provided in the Loan Documents.
(b) LEGAL REQUIREMENTS. Promptly comply with and conform to all
present and future laws, statutes, codes, ordinances, orders and regulations and
all covenants, restrictions and conditions which may be applicable to the
Mortgagor or to any of the Property (the "LEGAL REQUIREMENTS").
(c) IMPOSITIONS. Before interest or penalties are due thereon and
otherwise when due, the Mortgagor shall pay all taxes of every kind and nature,
all charges for any easement or agreement maintained for the benefit of any of
the Property, all general and special assessments (including any condominium or
planned unit development assessments, if any), levies, permits, inspection and
license fees, all water and sewer rents and charges, and all other charges and
liens, whether of a like or different nature, imposed upon or assessed against
the Mortgagor or any of the Property (the "IMPOSITIONS"). Within thirty (30)
days after the payment of any Imposition, the Mortgagor shall deliver to the
Mortgagee written evidence acceptable to the Mortgagee of such payment. The
Mortgagor's obligations to pay the Impositions shall survive the Mortgagee's
taking title to (and possession of) the Property through foreclosure,
deed-in-lieu or otherwise, as well as the termination of the Mortgage including,
without limitation, by merger into a deed.
(d) MAINTENANCE OF SECURITY. Use, and permit others to use, the
Property only for its present use or such other uses as permitted by applicable
Legal Requirements and approved in writing by the Mortgagee. The Mortgagor shall
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keep the Property in good condition and order and in a rentable and tenantable
state of repair and will make or cause to be made, as and when necessary, all
repairs, renewals, and replacements, structural and nonstructural, exterior and
interior, foreseen and unforeseen, ordinary and extraordinary, provided,
however, that no structural repairs, renewals or replacements shall be made
without the Mortgagee's prior written consent. The Mortgagor shall not remove,
demolish or alter the Property nor commit or suffer waste with respect thereto,
nor permit the Property to become deserted or abandoned. The Mortgagor covenants
and agrees not to take or permit any action with respect to the Property which
will in any manner impair the security of this Mortgage or the use of the
Property as set forth in the Loan Documents.
3. LEASES. The Mortgagor shall not (a) execute an assignment or pledge of
the Rents or the Leases other than in favor of the Mortgagee; (b) accept any
prepayment of an installment of any Rents prior to the due date of such
installment; or (c) enter into or amend any of the terms of any of the Leases
without the Mortgagee's prior written consent. Any or all leases or subleases of
all or any part of the Property shall be subject in all respects to the
Mortgagee's prior written consent, shall be subordinated to this Mortgage and to
the Mortgagee's rights and, together with any and all rents, issues or profits
relating thereto, shall be assigned at the time of execution to the Mortgagee as
additional collateral security for the Obligations, all in such form, substance
and detail as is satisfactory to the Mortgagee in its sole discretion.
4. DUE ON SALE CLAUSE. The Mortgagor shall not sell, convey or otherwise
transfer any interest in the Property (whether voluntarily or by operation of
law), or agree to do so, without the Mortgagee's prior written consent,
including (a) any sale, conveyance, encumbrance, assignment, or other transfer
of (including installment land sale contracts), or the grant of a security
interest in, all or any part of the legal or equitable title to the Property,
except as otherwise permitted hereunder; (b) any lease of all or any portion of
the Property; or (c) any sale, conveyance, encumbrance, assignment, or other
transfer of, or the grant of a security interest in, any share of stock of the
Mortgagor, if a corporation or any partnership interest in the Mortgagor, if a
partnership, or any membership interest, if a limited liability entity, except
in favor of the Mortgagee. Any default under this Section shall cause an
immediate acceleration of the Obligations without any demand by the Mortgagee.
5. INSURANCE. The Mortgagor shall keep the Property continuously insured,
in an amount not less than the cost to replace the Property or an amount not
less than eighty percent (80%) of the full insurable value of the Property,
whichever is greater, covering such risks and in such amounts and with such
deductibles as are satisfactory to the Mortgagee and its counsel including,
without limitation, insurance against loss or damage by fire, with extended
coverage and against other hazards as the Mortgagee may from time to time
require. With respect to any property under construction or reconstruction, the
Mortgagor shall maintain builder's risk insurance. The Mortgagor shall also
maintain comprehensive general public liability insurance, in an amount of not
less than One Million Dollars ($1,000,000) per occurrence and Two Million
Dollars ($2,000,000) general aggregate per location, which includes contractual
liability insurance for the Mortgagor's obligations under the Leases, and
worker's compensation insurance. All property and builder's risk insurance shall
include protection for continuation of income for a period of twelve (12)
months, in the event of any damage caused by the perils referred to above. All
policies, including policies for any amounts carried in excess of the required
minimum and policies not specifically required by the Mortgagee, shall be with
an insurance company or companies satisfactory to the Mortgagee, shall be in
form satisfactory to the Mortgagee, shall meet all coinsurance requirements of
the Mortgagee, shall be maintained in full force and effect, shall be assigned
to the Mortgagee, with premiums prepaid, as collateral security for payment of
the Obligations, shall be endorsed with a standard mortgagee clause in favor of
the Mortgagee and shall provide for at least thirty (30) days notice of
cancellation to the Mortgagee. Such insurance shall also name the Mortgagee as
an additional insured under the comprehensive general public liability policy
and the Mortgagor shall also deliver to the Mortgagee a copy of the replacement
cost coverage endorsement. If the Property is located in an area which has been
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identified by any governmental agency, authority or body as a flood hazard area
or the like, then the Mortgagor shall maintain a flood insurance policy covering
the Property in an amount not less than the original principal amount of the
Loan or the maximum limit of coverage available under the federal program,
whichever amount is less.
6. RIGHTS OF MORTGAGEE TO INSURANCE PROCEEDS. In the event of loss, the
Mortgagee shall have the exclusive right to adjust, collect and compromise all
insurance claims, and the Mortgagor shall not adjust, collect or compromise any
claims under said policies without the Mortgagee's prior written consent. Each
insurer is hereby authorized and directed to make payment under said policies,
including return of unearned premiums, directly to the Mortgagee instead of to
the Mortgagor and the Mortgagee jointly, and the Mortgagor appoints the
Mortgagee as the Mortgagor's attorney-in-fact to endorse any draft therefor. All
insurance proceeds may, at the Mortgagee's sole option, be applied to all or any
part of the Obligations and in any order (notwithstanding that such Obligations
may not then otherwise be due and payable) or to the repair and restoration of
any of the Property under such terms and conditions as the Mortgagee may impose.
7. INSTALLMENTS FOR INSURANCE, TAXES AND OTHER CHARGES. Upon the
Mortgagee's request, the Mortgagor shall pay to the Mortgagee monthly, an amount
equal to one-twelfth (1/12) of the annual premiums for the insurance policies
referred to hereinabove and the annual Impositions and any other item which at
any time may be or become a lien upon the Property (the "ESCROW CHARGES"). The
amounts so paid shall be used in payment of the Escrow Charges so long as no
Event of Default shall have occurred. No amount so paid to the Mortgagee shall
be deemed to be trust funds, nor shall any sums paid bear interest. The
Mortgagee shall have no obligation to pay any insurance premium or Imposition if
at any time the funds being held by the Mortgagee for such premium or Imposition
are insufficient to make such payments. If, at any time, the funds being held by
the Mortgagee for any insurance premium or Imposition are exhausted, or if the
Mortgagee determines, in its sole discretion, that such funds will be
insufficient to pay in full any insurance premium or Imposition when due, the
Mortgagor shall promptly pay to the Mortgagee, upon demand, an amount which the
Mortgagee shall estimate as sufficient to make up the deficiency. Upon the
occurrence of an Event of Default, the Mortgagee shall have the right, at its
election, to apply any amount so held against the Obligations due and payable in
such order as the Mortgagee may deem fit, and the Mortgagor hereby grants to the
Mortgagee a lien upon and security interest in such amounts for such purpose.
8. CONDEMNATION. The Mortgagor, immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation or taking by eminent domain
of any of the Property, shall notify the Mortgagee of the pendency of such
proceedings. The Mortgagee may participate in any such proceedings and the
Mortgagor shall deliver to the Mortgagee all instruments requested by it to
permit such participation. Any award or compensation for property taken or for
damage to property not taken, whether as a result of such proceedings or in lieu
thereof, is hereby assigned to and shall be received and collected directly by
the Mortgagee, and any award or compensation shall be applied, at the
Mortgagee's option, to any part of the Obligations and in any order
(notwithstanding that any of such Obligations may not then be due and payable)
or to the repair and restoration of any of the Property under such terms and
conditions as the Mortgagee may impose.
9. ENVIRONMENTAL MATTERS. (a) For purposes of this Section 9, the term
"ENVIRONMENTAL LAWS" shall mean all federal, state and local laws, regulations
and orders, whether now or in the future enacted or issued, pertaining to the
protection of land, water, air, health, safety or the environment. The term
"REGULATED SUBSTANCES" shall mean all substances regulated by Environmental
Laws, or which are known or considered to be harmful to the health or safety of
persons, or the presence of which may require investigation, notification or
remediation under the Environmental Laws. The term "CONTAMINATION" shall mean
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the discharge, release, emission, disposal or escape of any Regulated Substances
into the environment.
(b) The Mortgagor represents and warrants (i) that no Contamination is
present at, on or under the Property and that no Contamination is being or has
been emitted onto any surrounding property; (ii) all operations and activities
on the Property have been and are being conducted in accordance with all
Environmental Laws, and the Mortgagor has all permits and licenses required
under the Environmental Laws; (iii) no underground or aboveground storage tanks
are or have been located on or under the Property; and (iv) no legal or
administrative proceeding is pending or threatened relating to any environmental
condition, operation or activity on the Property, or any violation or alleged
violation of Environmental Laws. These representations and warranties shall be
true as of the date hereof, and shall be deemed to be continuing representations
and warranties which must remain true, correct and accurate during the entire
duration of the term of this Mortgage.
(c) The Mortgagor shall ensure, at its sole cost and expense, that the
Property and the conduct of all operations and activities thereon comply and
continue to comply with all Environmental Laws. The Mortgagor shall notify the
Mortgagee promptly and in reasonable detail in the event that the Mortgagor
becomes aware of any violation of any Environmental Laws, the presence or
release of any Contamination with respect to the Property, or any governmental
or third party claims relating to the environmental condition of the Property or
the conduct of operations or activities thereon. The Mortgagor also agrees not
to permit or allow the presence of Regulated Substances on any part of the
Property, except for those Regulated Substances (i) which are used in the
ordinary course of the Mortgagor's business, but only to the extent they are in
all cases used in a manner which complies with all Environmental Laws; and (ii)
those Regulated Substances which are naturally occurring on the Property. The
Mortgagor agrees not to cause, allow or permit the presence of any Contamination
on the Property.
(d) The Mortgagee shall not be liable for, and the Mortgagor shall
indemnify, defend and hold the Mortgagee and the Indemnified Parties (as
hereinafter defined) and all of their respective successors and assigns harmless
from and against all losses, costs, liabilities, damages, fines, claims,
penalties and expenses (including reasonable attorneys', consultants' and
contractors' fees, costs incurred in the investigation, defense and settlement
of claims, as well as costs incurred in connection with the investigation,
remediation or monitoring of any Regulated Substances or Contamination) that the
Mortgagee or any Indemnified Party may suffer or incur (including as holder of
the Mortgage, as mortgagee in possession or as successor in interest to the
Mortgagor as owner of the Property by virtue of a foreclosure or acceptance of a
deed in lieu of foreclosure) as a result of or in connection with (i) any
Environmental Laws (including the assertion that any lien existing or arising
pursuant to any Environmental Laws takes priority over the lien of the
Mortgage); (ii) the breach of any representation, warranty, covenant or
undertaking by the Mortgagor in this Section 9; (iii) the presence on or the
migration of any Contamination or Regulated Substances on, under or through the
Property; or (iv) any litigation or claim by the government or by any third
party in connection with the environmental condition of the Property or the
presence or migration of any Regulated Substances or Contamination on, under, to
or from the Property.
(e) Upon the Mortgagee's request, the Mortgagor shall execute and
deliver an Environmental Indemnity Agreement satisfactory in form and substance
to the Mortgagee, to more fully reflect the Mortgagor's representations,
warranties, covenants and indemnities with respect to the Environmental Laws.
10. INSPECTION OF PROPERTY. The Mortgagee shall have the right to enter the
Property at any reasonable hour for the purpose of inspecting the order,
condition and repair of the buildings and improvements erected thereon, as well
as the conduct of operations and activities on the Property. The Mortgagee may
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enter the Property (and cause the Mortgagee's employees, agents and consultants
to enter the Property), upon prior written notice to the Mortgagor, to conduct
any and all environmental testing deemed appropriate by the Mortgagee in its
sole discretion. The environmental testing shall be accomplished by whatever
means the Mortgagee may deem appropriate, including the taking of soil samples
and the installation of ground water monitoring xxxxx or other intrusive
environmental tests. The Mortgagor shall provide the Mortgagee (and the
Mortgagee's employees, agents and consultants) reasonable rights of access to
the Property as well as such information about the Property and the past or
present conduct of operations and activities thereon as the Mortgagee shall
reasonably request.
11. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "EVENT OF DEFAULT" hereunder: (a) any Event of
Default (as defined in any of the Obligations); (b) any default under any of the
Obligations that does not have a defined set of "Events of Default" and the
lapse of any notice or cure period provided in such Obligations with respect to
such default; (c) demand by the Mortgagee under any of the Obligations that have
a demand feature; (d) the Mortgagor's failure to perform any of its obligations
under this Mortgage or under any Environmental Indemnity Agreement executed and
delivered pursuant to Section 9(e); (e) falsity, inaccuracy or material breach
by the Mortgagor of any written warranty, representation or statement made or
furnished to the Mortgagee by or on behalf of the Mortgagor; (f) an uninsured
material loss, theft, damage, or destruction to any of the Property, or the
entry of any judgment against the Mortgagor or any lien against or the making of
any levy, seizure or attachment of or on the Property; (g) the Mortgagee's
failure to have a mortgage lien on the Property with the priority required under
Section 1; (h) any indication or evidence received by the Mortgagee that the
Mortgagor may have directly or indirectly been engaged in any type of activity
which, in the Mortgagee's discretion, might result in the forfeiture of any
property of the Mortgagor to any governmental entity, federal, state or local;
(i) foreclosure proceedings are instituted against the Property upon any other
lien or claim, whether alleged to be superior or junior to the lien of this
Mortgage; (j) the failure by the Mortgagor to pay any Impositions as required
under Section 2(c), or to maintain in full force and effect any insurance
required under Section 5; or (k) the Mortgagor or any other obligor or guarantor
of any of the Obligations, shall at any time deliver or cause to be delivered to
the Mortgagee a notice pursuant to 42 Pa. C.S.A. ss.8143 (or any successor or
similar law, rule or regulation) electing to limit the indebtedness secured by
this Mortgage.
12. RIGHTS AND REMEDIES OF MORTGAGEE. If an Event of Default occurs, the
Mortgagee may, at its option and without demand, notice or delay, do one or more
of the following:
(a) The Mortgagee may declare the entire unpaid principal balance of
the Obligations, together with all interest thereon, to be due and payable
immediately.
(b) The Mortgagee may (i) institute and maintain an action of mortgage
foreclosure against the Property and the interests of the Mortgagor therein,
(ii) institute and maintain an action on any instruments evidencing the
Obligations or any portion thereof, and (iii) take such other action at law or
in equity for the enforcement of any of the Loan Documents as the law may allow,
and in each such action the Mortgagee shall be entitled to all costs of suit and
attorneys fees.
(c) The Mortgagee may, in its sole and absolute discretion: (i)
collect any or all of the Rents, including any Rents past due and unpaid, (ii)
perform any obligation or exercise any right or remedy of the Mortgagor under
any Lease, or (iii) enforce any obligation of any tenant of any of the Property.
The Mortgagee may exercise any right under this subsection (c), whether or not
the Mortgagee shall have entered into possession of any of the Property, and
nothing herein contained shall be construed as constituting the Mortgagee a
"mortgagee in possession", unless the Mortgagee shall have entered into and
shall continue to be in actual possession of the Property. The Mortgagor hereby
authorizes and directs each and every present and future tenant of any of the
Property to pay all Rents directly to the Mortgagee and to perform all other
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obligations of that tenant for the direct benefit of the Mortgagee, as if the
Mortgagee were the landlord under the Lease with that tenant, immediately upon
receipt of a demand by the Mortgagee to make such payment or perform such
obligations. The Mortgagor hereby waives any right, claim or demand it may now
or hereafter have against any such tenant by reason of such payment of Rents or
performance of obligations to the Mortgagee, and any such payment or performance
to the Mortgagee shall discharge the obligations of the tenant to make such
payment or performance to the Mortgagor.
(d) The Mortgagee shall have the right, in connection with the
exercise of its remedies hereunder, to the appointment of a receiver to take
possession and control of the Property or to collect the Rents, without notice
and without regard to the adequacy of the Property to secure the Obligations. A
receiver while in possession of the Property shall have the right to make
repairs and to make improvements necessary or advisable in its or his opinion to
preserve the Property, or to make and keep them rentable to the best advantage,
and the Mortgagee may advance moneys to a receiver for such purposes. Any moneys
so expended or advanced by the Mortgagee or by a receiver shall be added to and
become a part of the Obligations secured by this Mortgage.
13. APPLICATION OF PROCEEDS. The Mortgagee shall apply the proceeds of any
foreclosure sale of, or other disposition or realization upon, or Rents or
profits from, the Property to satisfy the Obligations in such order of
application as the Mortgagee shall determine in its exclusive discretion.
14. CONFESSION OF JUDGMENT IN EJECTMENT. At any time after the occurrence
of an Event of Default, without further notice, regardless of whether the
Mortgagee has asserted any other right or exercised any other remedy under this
Mortgage or any of the other Loan Documents, it shall be lawful for any attorney
of any court of record as attorney for the Mortgagor to confess judgment in
ejectment against the Mortgagor and all persons claiming under the Mortgagor for
the recovery by the Mortgagee of possession of all or any part of the Property,
for which this Mortgage shall be sufficient warrant. If for any reason after
such action shall have commenced the same shall be discontinued and the
possession of the Property shall remain in or be restored to the Mortgagor, the
Mortgagee shall have the right upon any subsequent default or defaults to bring
one or more amicable action or actions as hereinbefore set forth to recover
possession of all or any part of the Property.
15. MORTGAGEE'S RIGHT TO PROTECT SECURITY. The Mortgagee is hereby
authorized to do any one or more of the following, irrespective of whether an
Event of Default has occurred: (a) appear in and defend any action or proceeding
purporting to affect the security hereof or the Mortgagee's rights or powers
hereunder; (b) purchase such insurance policies covering the Property as it may
elect if the Mortgagor fails to maintain the insurance coverage required
hereunder; and (c) take such action as the Mortgagee may determine to pay,
perform or comply with any Impositions or Legal Requirements, to cure any Events
of Default and to protect its security in the Property.
16. APPOINTMENT OF MORTGAGEE AS ATTORNEY-IN-FACT. The Mortgagee, or any of
its officers, is hereby irrevocably appointed attorney-in-fact for the Mortgagor
(without requiring any of them to act as such), such appointment being coupled
with an interest, to do any or all of the following: (a) collect the Rents after
the occurrence of an Event of Default; (b) settle for, collect and receive any
awards payable under Section 8 from the authorities making the same; and (c)
execute, deliver and file, at Mortgagor's sole cost and expense such financing,
continuation or amendment statements and other instruments as the Mortgagee may
require in order to perfect, protect and maintain its security interest under
the UCC on any portion of the Property.
17. CERTAIN WAIVERS. The Mortgagor hereby waives and releases all benefit
that might accrue to the Mortgagor by virtue of any present or future law
exempting the Property, or any part of the proceeds arising from any sale
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thereof, from attachment, levy or sale on execution, or providing for any stay
of execution, exemption from civil process or extension of time for payment or
any rights of marshalling in the event of any sale hereunder of the Property,
and, unless specifically required herein, all notices of the Mortgagor's default
or of the Mortgagee's election to exercise, or the Mortgagee's actual exercise
of any option under this Mortgage or any other Loan Document.
18. NOTICES. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder ("NOTICES") must be in writing
and will be effective upon receipt. Notices may be given in any manner to which
the parties may separately agree, including electronic mail. Without limiting
the foregoing, first-class mail, facsimile transmission and commercial courier
service are hereby agreed to as acceptable methods for giving Notices.
Regardless of the manner in which provided, Notices may be sent to a party's
address as set forth above or to such other address as any party may give to the
other for such purpose in accordance with this section.
19. FURTHER ACTS. By its signature hereon, the Mortgagor hereby irrevocably
authorizes the Mortgagee to execute (on behalf of the Mortgagor) and file
against the Mortgagor one or more financing, continuation or amendment
statements pursuant to the UCC in form satisfactory to the Mortgagee, and the
Mortgagor will pay the cost of preparing and filing the same in all
jurisdictions in which such filing is deemed by the Mortgagee to be necessary or
desirable in order to perfect, preserve and protect its security interests. If
required by the Mortgagee, the Mortgagor will execute all documentation
necessary for the Mortgagee to obtain and maintain perfection of its security
interests in the Property. The Mortgagor will, at the cost of the Mortgagor, and
without expense to the Mortgagee, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, transfers and assurances as the Mortgagee shall, from time to time,
require for the better assuring, conveying, assigning, transferring or
confirming unto the Mortgagee the property and rights hereby mortgaged, or which
Mortgagor may be or may hereafter become bound to convey or assign to the
Mortgagee, or for carrying out the intent of or facilitating the performance of
the terms of this Mortgage or for filing, registering or recording this
Mortgage. The Mortgagor grants to the Mortgagee an irrevocable power of attorney
coupled with an interest for the purpose of exercising and perfecting any and
all rights and remedies available to the Mortgagee under the Note, this
Mortgage, the other Loan Documents, at law or in equity, including, without
limitation, the rights and remedies described in this paragraph.
20. CHANGES IN THE LAWS REGARDING TAXATION. If any law is enacted or
adopted or amended after the date of this Mortgage which deducts the Obligations
from the value of the Property for the purpose of taxation or which imposes a
tax, either directly or indirectly, on the Mortgagor or the Mortgagee's interest
in the Property, the Mortgagor will pay such tax, with interest and penalties
thereon, if any. If the Mortgagee determines that the payment of such tax or
interest and penalties by the Mortgagor would be unlawful or taxable to the
Mortgagee or unenforceable or provide the basis for a defense of usury, then the
Mortgagee shall have the option, by written notice of not less than ninety (90)
days, to declare the entire Obligations immediately due and payable.
21. DOCUMENTARY STAMPS. If at any time the United States of America, any
State thereof or any subdivision of any such State shall require revenue or
other stamps to be affixed to the Note or this Mortgage, or impose any other tax
or charge on the same, the Mortgagor will pay for the same, with interest and
penalties thereon, if any.
22. PRESERVATION OF RIGHTS. No delay or omission on the Mortgagee's part to
exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will the
Mortgagee's action or inaction impair any such right or power. The Mortgagee's
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rights and remedies hereunder are cumulative and not exclusive of any other
rights or remedies which the Mortgagee may have under other agreements, at law
or in equity.
23. ILLEGALITY. If any provision contained in this Mortgage should be
invalid, illegal or unenforceable in any respect, it shall not affect or impair
the validity, legality and enforceability of the remaining provisions of this
Mortgage.
24. CHANGES IN WRITING. No modification, amendment or waiver of, or consent
to any departure by the Mortgagor from, any provision of this Mortgage will be
effective unless made in a writing signed by the Mortgagee, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on the Mortgagor will entitle the
Mortgagor to any other or further notice or demand in the same, similar or other
circumstance.
25. ENTIRE AGREEMENT. This Mortgage (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
26. SURVIVAL; SUCCESSORS AND ASSIGNS. This Mortgage will be binding upon
and inure to the benefit of the Mortgagor and the Mortgagee and their respective
heirs, executors, administrators, successors and assigns; PROVIDED, HOWEVER,
that the Mortgagor may not assign this Mortgage in whole or in part without the
Mortgagee's prior written consent and the Mortgagee at any time may assign this
Mortgage in whole or in part; and PROVIDED, FURTHER, that the rights and
benefits under the Paragraphs entitled "Environmental Matters", "Inspection of
Property" and "Indemnity" shall also inure to the benefit of any persons or
entities who acquire title or ownership of the Property from or through the
Mortgagee or through action of the Mortgagee (including a foreclosure, sheriff's
or judicial sale). The provisions of Paragraphs entitled "Environmental
Matters", "Inspection of Property" and "Indemnity" shall survive the
termination, satisfaction or release of this Mortgage, the foreclosure of this
Mortgage or the delivery of a deed in lieu of foreclosure.
27. INTERPRETATION. In this Mortgage, unless the Mortgagee and the
Mortgagor otherwise agree in writing, the singular includes the plural and the
plural the singular; words importing any gender include the other genders;
references to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections) or exhibits are
to those of this Mortgage; and references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications to such instruments, but only to the extent such amendments and
other modifications are not prohibited by the terms of this Mortgage. Section
headings in this Mortgage are included for convenience of reference only and
shall not constitute a part of this Mortgage for any other purpose. If this
Mortgage is executed by more than one party as Mortgagor, the obligations of
such persons or entities will be joint and several.
28. INDEMNITY. The Mortgagor agrees to indemnify each of the Mortgagee,
each legal entity, if any, who controls, is controlled by or is under common
control with the Mortgagee and each of their respective directors, officers,
employees and agents (the "INDEMNIFIED PARTIES"), and to hold each Indemnified
Party harmless from and against, any and all claims, damages, losses,
liabilities and expenses (including all fees and charges of internal or external
counsel with whom any Indemnified Party may consult and all expenses of
litigation and preparation therefor) which any Indemnified Party may incur, or
which may be asserted against any Indemnified Party by any person, entity or
governmental authority (including any person or entity claiming derivatively on
behalf of the Mortgagor), in connection with or arising out of or relating to
the matters referred to in this Mortgage or in the other Loan Documents, whether
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(a) arising from or incurred in connection with any breach of a representation,
warranty or covenant by the Mortgagor, or (b) arising out of or resulting from
any suit, action, claim, proceeding or governmental investigation, pending or
threatened, whether based on statute, regulation or order, or tort, or contract
or otherwise, before any court or governmental authority; PROVIDED, HOWEVER,
that the foregoing indemnity agreement shall not apply to any claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified Party's
gross negligence or willful misconduct. The indemnity agreement contained in
this Section shall survive the termination of this Mortgage, payment of any
Obligations and assignment of any rights hereunder. The Mortgagor may
participate at its expense in the defense of any such action or claim.
29. GOVERNING LAW AND JURISDICTION. This Mortgage has been delivered to and
accepted by the Mortgagee and will be deemed to be made in the State where the
Mortgagee's office indicated above is located. THIS MORTGAGE WILL BE INTERPRETED
AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICT OF
LAWS RULES, EXCEPT THAT THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED (IF
DIFFERENT FROM THE STATE WHERE SUCH OFFICE OF THE MORTGAGEE IS LOCATED) SHALL
GOVERN THE CREATION, PERFECTION AND FORECLOSURE OF THE LIENS CREATED HEREUNDER
ON THE PROPERTY OR ANY INTEREST THEREIN. The Mortgagor hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court in
Philadelphia County, Pennsylvania provided that nothing contained in this
Mortgage will prevent the Mortgagee from bringing any action, enforcing any
award or judgment or exercising any rights against the Mortgagor individually,
against any security or against any property of the Mortgagor within any other
county, state or other foreign or domestic jurisdiction. The Mortgagee and the
Mortgagor agree that the venue provided above is the most convenient forum for
both the Mortgagee and the Mortgagor. The Mortgagor waives any objection to
venue and any objection based on a more convenient forum in any action
instituted under this Mortgage.
30. AUTHORIZATION TO OBTAIN CREDIT REPORTS. By signing below, each
Mortgagor who is an individual provides written authorization to the Mortgagee
or its designee (and any assignee or potential assignee hereof) authorizing
review of the Mortgagor's personal credit profile from one or more national
credit bureaus. Such authorization shall extend to obtaining a credit profile in
considering the Obligations and/or this Mortgage and subsequently for the
purposes of update, renewal or extension of such credit or additional credit and
for reviewing or collecting the resulting account.
31. CHANGE IN NAME OR LOCATIONS. The Mortgagor hereby agrees that if the
location of any of the Property changes from the Land or its chief executive
office, or if the Mortgagor changes its name, its type of organization, its
state of organization (if Mortgagor is a registered organization), its principal
residence (if Mortgagor is an individual), its chief executive office (if
Mortgagor is a general partnership or non-registered organization) or
establishes a name in which it may do business that is not the current name of
the Mortgagor, the Mortgagor will immediately notify the Mortgagee in writing of
the additions or changes.
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32. WAIVER OF JURY TRIAL. THE MORTGAGOR IRREVOCABLY WAIVES ANY AND ALL
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS MORTGAGE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
MORTGAGE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE MORTGAGOR
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
THE MORTGAGOR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS MORTGAGE, INCLUDING THE WAIVER OF JURY TRIAL, AND HAS BEEN ADVISED BY
COUNSEL AS NECESSARY OR APPROPRIATE.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
[CORPORATE SEAL] XXXXXXX MANUFACTURING INC.
Attest: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ ---------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx Print Name: Xxxxxx X. Xxxxx
-------------------------- -------------------------
Title: VP Title: V.P. - CFO
------------------------------- ------------------------------
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CERTIFICATE OF RESIDENCE
The undersigned certifies that the residence of the Mortgagee is 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000.
/s/ Xxxx Xxxxxxxx
--------------------------------
On behalf of the Mortgagee
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XXXXXXXXXXXX XX XXXXXXXXXXXX )
) ss:
COUNTY OF BUCKS )
On this, the 1st day of October, 2004, before me, a Notary Public, the
undersigned officer, personally appeared Xxxxxx X. Xxxxx, who acknowledged
himself/herself to be the Vice President of Xxxxxxx Manufacturing Inc., a
Delaware corporation, and that he/she, in such capacity, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Xxxxxx X. Xxxxxx
--------------------------------
Notary Public
My commission expires: March 21, 2005
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EXHIBITS
Lancaster County
A. LEGAL DESCRIPTION (ATTACHED HERETO)
B. PERMITTED ENCUMBRANCES:
Rights or claims by parties in possession or under the terms of any unrecorded
lease or agreement(s) of sale.
Water and Sewer Rents due for current year, not yet due and payable.
Liability for possible additional assessment for County Taxes, School Taxes and
Municipal Taxes; and/or for new construction and/or major improvements to
premises, not yet due and payable.
Subject to restrictions as set forth in Record Book N-42, page 43.
Subject to restrictions as set forth in Record Book H-40, page 425.
Subject to Agreement as set forth in Record Book S-44, page 248.
Easement of alley along the south side of premises.
Acreage content not insured.
00 XXXXX XXXXXX XXXXXX XXX XXXXX XXXXXX XXXXXX:
ALL THAT CERTAIN tract or piece of land situated on the east side of North
Spruce Street in the Borough of Elizabethtown, County of Lancaster and
Commonwealth of Pennsylvania, and having thereon erected a factory building and
other improvements, and known and numbered as 00 Xxxxx Xxxxxx Xxxxxx, and
bounded and described as follows, to wit:
BEGINNING at the northwest corner thereof at the southeast corner of the
intersection of North Spruce Street and Xxxxxx Avenue, thence along the south
side of Xxxxxx Avenue in an easterly direction, one hundred eighty-three and
five hundredths (183.05) feet to a point; thence by land now or formerly of Xxxx
Xxxxx (K-43-330), South seventeen (17) degrees east, one hundred twenty-eight
and eighty-four hundredths (128.84) feet to a point on the north side of
Mechanics Street (also known as Mechanics Alley); thence along the north side of
Mechanics Street in a Westerly direction, one hundred eighty-three and five
hundredths (183.05) feet to a point on the east side of North Spruce Street;
thence along the east side of North Spruce Street in a northerly direction, one
hundred twenty-seven and three tenths (127.3) feet to the place of BEGINNING.
AND
000 XXXXXX XXXXXX:
ALL THAT CERTAIN tract or piece of ground with a one and one-half story brick
dwelling and garage thereon erected, situated on the South side of Xxxxxx
Avenue, in the Borough of Elizabethtown, County of Lancaster and Commonwealth of
Pennsylvania, known and numbered as 000 Xxxxxx Xxxxxx, and being part of Lot No.
3 on the revised plan of lots prepared by Xxxxxx X. Xxxxxxxxxx, R.S., in
December 1950, and known as Xxxxxx-Xxxx Subdivision Plan, more particularly
bounded and described according to a more recent survey made by Xxxxxx
Xxxxxxxxxx, R.S., dated February 1954, as follows to wit:
BEGINNING at a stake at the Southwest corner of the intersection of Xxxxxx
Xxxxxx xxx Xxxxx Xxxxxx Xxxxxx; thence along the West side of North Locust
Street, South seventeen (17) degrees East, one hundred twenty-nine and
thirty-seven hundredths (129.37) feet to a stake on the North side of Mechanics
Street; thence along the North side of Mechanics Street, South seventy-three
(763) degrees West, sixty-six (66) feet to a stake on the North side of
Mechanics Street; thence along the remaining portion of Lot No.3, now or
formerly of the party of the Second Part herein (31 North Spruce Street), North
seventeen (17) degrees West, one hundred twenty-eight and eighty-four hundredths
(128.84) feet to a stake on the South side of Xxxxxx Avenue; thence along the
South side of Xxxxxx Avenue, North seventy-two (72) degrees East, sixty-six (66)
feet to the place of BEGINNING.
EXHIBIT A
OPEN-END MORTGAGE AND SECURITY AGREEMENT
------------------------------------------------
XXXXXXX MANUFACTURING INC.
Mortgagor
AND
PNC BANK, NATIONAL ASSOCIATION,
Mortgagee
------------------------------------------------
Return to:
PNC Bank, National Association
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
