REVOLVING LINE OF CREDIT LOAN AGREEMENT
MADE as of the 13th day of August,1996, between SEVEN FIELDS DEVELOPMENT
COMPANY, a Pennsylvania business trust (the "Borrower"), and FIRST WESTERN
BANK, NATIONAL ASSOCIATION, a national banking association (hereinafter
referred to as the "Lender").
WITNESSETH:
WHEREAS, Borrower desires to arrange for a revolving line of credit
loan (the "Loan" or "Line of Credit") from Lender to enable it to borrow,
repay and reborrow from Lender from time to time sums not to exceed the
principal amount of ONE MILLION DOLLARS ($ 1,000,000) at any one time
outstanding (the "Maximum Loan Amount") to finance the construction of
certain Buildings and Units (collectively, the "Improvements"), and Lender
is willing to extend such credit to Borrower subject to the terms and
conditions hereinafter set forth; and
WHEREAS, the Loan is evidenced by a Revolving Line of Credit Note (the
"Note") dated the date hereof and is secured, inter alia, by an Open-End
Mortgage and Security Agreement, dated the date hereof, as more fully
described herein (the "Mortgage").
NOW, THEREFORE, in consideration of the premises, the parties hereto,
declaring their intention to be legally bound hereby, covenant and agree as
follows:
1. General Loan Terms.
(a) Loan Purpose. The purpose of the Loan is to provide funding to
Borrower for construction of twenty-four (24) fourplex buildings (the
"Building(s)") each consisting of four (4) single family townhomes (the
"Unit(s)"), each Unit located on a lot (the "Lot"), in the Hawthorne
Commons Plan, which is recorded in the Xxxxxx County, Pennsylvania
Recorder's Office at Plan Book Volume 192, Page 31-34, provided that, at
any given time, Borrower shall not be constructing more than three (3)
Buildings or twelve (12) Units.
(b) Loan Advances. Subject to the conditions hereinafter contained,
from time to time after the date hereof, Lender shall advance the proceeds
of the Loan (the "Loan Proceeds") to Borrower. In no event shall Lender be
obligated to advance Loan proceeds in an aggregate amount exceeding (a)
Eighty Thousand Dollars ($80,000) per Unit and (b) an aggregate of ONE
MILLION DOLLARS ($1,000,000) at any one time outstanding. No advances
for interest due under the terms of the Note will be made under the Line
of Credit. Notwithstanding the foregoing, Lender shall not be required to
advance Loan Proceeds at Borrower's request if the required payments from
Borrower under the Line of Credit are not current or if Borrower has
otherwise failed to provide required information or documentation under
the terms of this Revolving Line of Credit Loan Agreement.
(c) Maturity Date. Total advances for Improvements under the Loan,
together with all
accrued interest thereon, and any other sums or costs advanced by Lender in
connection therewith, shall be due and
payable on August 31, 1997 (the "Maturity Date"), unless the Loan is
extended in accordance with the terms of the Note or earlier due by
acceleration or otherwise. Funding under the Line of Credit shall terminate
at maturity.
(d) Application of Xxxxxxx Money. Upon receipt of each xxxxxxx money
deposit from each Buyer under an Approved Contract for the sale of a Lot
and its Unit, Borrower shall deliver such amount to Lender, and such
amount shall be held by Lender and then subsequently advanced for the
construction of Improvements subject to Lender's right of inspection and
approval of Improvements and disbursement requests as set forth in
paragraph l(f) below, and further subject to the disbursement procedures
hereinafter set forth. Upon disbursement of the xxxxxxx money for
construction of the Improvements, such proceeds shall not be considered
Loan proceeds.
(e) Closing Agenda Documents and Exhibits. Prior to the first
disbursement of Loan proceeds, Borrower must execute or cause to be executed
in form and content acceptable to Lender, and must supply to Lender all
documents and exhibits which are listed on the Closing Agenda attached
hereto as Exhibit "A".
(f) Inspection. Lender's agent and/or another inspector (the "Inspector")
selected and approved by Lender shall have the right to inspect all
Improvements and the progress of the construction thereon, including, but not
limited to the right to inspect any improvements prior to any advance of any
funds under the Loan. All disbursement requests, the design of the
Improvements and work to be performed and the construction of the
Improvements shall be satisfactory to and approved by Lender and, at
Lender's option, the Inspector. Borrower shall reimburse Lender for all
inspection fees, which reimbursement shall occur prior to each advance of
Loan Proceeds for any Improvements .
(I) Definitions.
Approved Contract. A bona fide agreement of sale for the Lot and the
Unit thereon executed by third parties and Borrower, which agreement of
sale and construction contract are acceptable to Lender with respect to terms,
form and content.
Buildings(s) As defined in Section l(a) above.
Commitment. That certain commitment letter with respect to the Loan by
Lender to Borrower, dated April 15, 1996 and accepted by Borrower on May 2,
1996.
Improvements. Collectively, the Buildings and the Units.
Loan Closing. The date of execution of this Agreement, the Note, and
the remaining Loan Documents.
Loan Documents. All documents and items considered by Lender to be
related to the Loan, including but not limited to (a) the Note; (b) the
Mortgage; (c) this Revolving Line of Credit Loan Agreement; and (d) all
other miscellaneous loan documents. All Loan Documents be in form and
substance satisfactory to Lender.
Lab A lot on which Improvements are being constructed.
Mortgaged Premises. Any Lot and/or Improvements encumbered by the
Mortgage.
Mortgage. The Open-End Mortgage and Security Agreement executed by
Borrower in favor of Lender on the date hereof encumbering, inter alia, the
Lots and Improvements.
Tangible Net Worth. The excess of Borrower's total assets over
Borrower's total liabilities. Total assets and total liabilities shall be
determined in accordance with generally accepted accounting principles
consistently applied excluding, however, from the determination of total
assets all assets which would be classified as intangible assets under
generally accepted accounting principles including, without limitation,
goodwill, patents, trademarks, trade names, copyrights and franchises.
Units The single family townhouse units in Seven Fields Borough,
Xxxxxx County, Pennsylvania, being constructed by Borrower, which homes are
being financed under the Loan.
(j) Loan Fees. The following Loan Fees shall be payable by Borrower in
such amounts and at such times and installments as follows:
(I) Commitment Fee. For each Unit, Borrower shall pay to Lender a
Commitment Fee equal to one-half of one percent (.50%) of the portion of
the Loan Proceeds allocated (as determined by Lender) for that specific Unit.
Each Commitment Fee for each Unit shall be payable at the time of the first
requisition of funds by Borrower under the Loan Agreement for each such Unit.
(k) Maximum Amount of Advance for Lot and Improvements.
(I) Maximum Amount of Improvements Which May Be Financed Under the
Line of Credit. Borrower shall be limited to financing no more than twelve
(12) Units in three (3) Buildings at any one time under this Line of Credit.
(ii) Construction of a Unit on any Lot shall not be commenced until
all requirements for the commencement of construction under this Loan
Agreement have been met. In no event shall construction of a Unit begin
later than sixty (60) days following the first disbursement with respect to
the Building in which such Unit is located. Advances for the construction
of Improvements will be limited to Eighty Thousand Dollars ($80,000)
per Unit.
(iii) At no time will the outstanding principal balance of the Loan
exceed the sum of One Million Dollars ($1,000.000).
Representations and Warranties. Borrower hereby represents and
warrants to Lender (all such representations and warranties being deemed to
be continuously made until the Loan shall have been paid in full) as
follows:
(a) That Borrower is a corporation duly organized, existing and in
good standing under the laws of the Commonwealth of Pennsylvania, and has
full power and authority to own and operate its properties, to conduct its
affairs as now being conducted, to execute and deliver this
Agreement, the Note, and the Loan Documents, and to perform the obligations
hereunder and thereunder;
(b) That all Loan Documents are enforceable and binding against
Borrower in accordance with their respective terms;
(c) That the execution and delivery of the Loan Documents have been duly
authorized by all necessary action on the part of Borrower, and all borrows
contemplated or permitted by the provisions hereof have been, or at the
time of each such borrowing, shall have been, duly authorized by all
necessary action on the part of Borrower, and the Loan Documents constitute
valid and legally binding agreements of the parties thereto, enforceable
in accordance with their respective terms;
(d) That the financial information provided to Lender with respect to
Borrower is accurate and complete and has been prepared in accordance with
generally accepted accounting principles consistently applied and further
that there has been no adverse change in the financial condition or
business of Borrower since the date of such information;
(e) That there are no current, pending or threatened suits or
administrative proceedings, judgments entered of record against or involving
Borrower, or any directly related affiliates.
(f) That Borrower has made a full and true disclosure of pertinent
financial and other information to Lender in connection with Borrower's
application for this Loan;
(g) That Borrower has not made any representation or warranty to
Lender that contains a misrepresentation or untrue statement or omits any
material fact, and Borrower knows of no fact which now or will hereafter
adversely affect the financial condition of Borrower;
(h) That Borrower has disclosed to Lender the existence of all
subsidiaries and affiliates of Borrower;
(I) That Borrower has fee simple title to all Lots, unencumbered with
the exception of the lien of the Mortgage, and subject only to title
exceptions as Lender may approve, and, with
regard to any and all collateral provided, that there are and will not be
any liens thereon except those permitted by Lender;
(j) That Borrower has met any and all tax obligations or the reserves
against such tax obligations;
(k) That Borrower has all necessary licenses and permits to conduct its
business;
(I ) That, if applicable, Borrower is in compliance with ERISA, is not
materially liable thereunder, and there exists no reportable events;
(m) That there does not exist, nor will Borrower permit to exist, any
hazardous substance (as such term is defined by any federal, state or local
law or regulation) in or on any property owned, leased, controlled or
operated by Borrower which is not stored, contained or used in compliance
with all applicable laws and regulations and there has not been any
seepage, spill, release or discharge of any hazardous substance on or from
any such property;
(n) That no Event of Default has occurred nor is there any event
that has occurred which, with the passage of time or notice, would
constitute an Event of Default.
3. Conditions for Advances of Loan Proceeds.
(a) Prior to any advance by Lender, Lender shall have received
(without cost or expense to Lender) the following with respect thereto,
all in such form and content as the Lender may require:
(I) a written request from Borrower specifying and including the
following information: (aa) the amount of the advance requested; (bb) the
purpose of the advance; and (cc) the Request for Disbursement form attached
hereto as Exhibit C with all attachments;
(ii) an ALTA policy of title insurance insuring that Lender's
Mortgage is a first lien against the fee simple title, free and clear of
all liens and encumbrances and other types of policy exceptions, except
those approved by Lender, and containing such endorsements as to survey,
access and other matters as Lender may require;
(iii) a survey or plot plan which shall certify the location and
dimensions of the Lots, including all easements and rights-of-way as
acceptable to the title company issuing the ALTA policy of title insurance
referenced in subparagraph (a)(iii) above;
(iv) effective lien waivers and releases from Borrowers' contractor,
all other contractors, subcontractors, suppliers and other persons having
a right to file a mechanic's or materialmen's lien with respect to all work,
materials and services for which the loan proceeds are being requested and
all future work, materials and services, including, without limitation, the
execution, delivery and filing with the Prothonotary of Xxxxxx County,
Pennsylvania a No-Lien
Agreement between Borrower and its contractor in advance of the commencement
of construction of any work on the Mortgaged Premises.
Further, no Event of Default as herein defined shall have occurred.
(b) Advances for Improvements. Prior to any advance by Lender with
respect to the initial construction of the Building or Unit on any Lot,
Lender shall have received (without cost or expense to Lender) the following
with respect thereto all in such form and content as Lender may require:
(I) a written request from Borrower specifying and including the
amount of total advances requested for the specific Improvement;
(ii) detailed final plans and specifications (the "Plans") and cost
breakdown and/or Approved Contract (if one has been entered into by such
point), all being acceptable to Lender, and all being certified by Borrower
and containing such information and in such form as Lender may require for
the construction and equipping of the Improvements;
(iii) prior to the commencement of construction and any advance with
respect to any Building, an appraisal of the Lots and the proposed Building
and the Units therein satisfactory to Lender (the "Appraisal"). Borrower
shall reimburse Lender for all fees of the Appraiser;
(iv) evidence satisfactory to Lender that no work has begun on the Lot
and no materials or supplies had been delivered thereto prior to the
recording of the Mortgage, and that no municipal improvements are
contemplated that could result in a lien against the Lot, except as
otherwise approved by the Lender;
(v) Builder's risk, workmen's compensation and hazard and public
liability and property damage insurance satisfactory to Lender with respect
to the Improvements to be constructed on such Lot with standard mortgagee
clauses naming Lender as first mortgagee and flood insurance, if required,
or such proof as Lender may require as to the location of such Lot with
respect to areas
within the applicable 100 year flood plain as determined by the United States
Army Corp of Engineers; furthermore, all insurance policies shall contain a
clause giving the Lender thirty (30) days' prior written notice before
cancellation by the insuring company and shall indicate Lender's address
as "First Western Bank, National Association, 000 Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxx,
Xxxxxxxxxxxx 00000." Borrower shall be required to provide Lender, at
closing, with an original policy of insurance or a certified copy of same,
signed by the agent, naming Lender as the Mortgagee and/or Loss Payee under
said policy of insurance.
(vi) a survey of the Lot, including the foundation of the Improvements
constructed thereon, which survey shall certify the location and dimensions
of the Lot, including all
easements and rights-of-way as acceptable to the title company issuing the
ALTA policy of title insurance referenced in subparagraph (a)(iii) above;
(vii) evidence of all governmental approvals required for the construction
of the Improvements, except those approvals which cannot be obtained until
the construction of the Improvements has been completed, as applicable.
Further, no Event of Default shall have occurred hereunder, nor shall there
exist any event or condition which, with the passage of time or the giving
of notice, or both, would constitute such an Event of Default.
(c) Upon compliance with the foregoing conditions as to each Lot and the
Improvements to be constructed thereon, Lender shall advance Loan proceeds
to pay approved costs due and payable by Borrower not more frequently than
once monthly in accordance with Lender's seven stage draw schedule and in
accordance with Lender's standard policy set forth on Exhibit "B" attached
hereto; provided, however, that all advances hereunder are expressly limited
as set forth in this Loan Agreement.
4. Sales of Lots: Release Fees. Upon the conveyance of any Lot(s), Lender
will require, in order to release such Lot(s) from the lien of the Mortgage,
the payment of a release fee ("Release Fee") equal the amount of funds
advanced by Lender under the Loan for such Lot and Improvements thereon.
Notwithstanding the foregoing, Lender shall not be required to release any
Lot from the lien of the Mortgage encumbering that Lot if Borrower is in
default under the Loan. Upon receipt, if Borrower is not in default, the
Release Fee shall be applied to the reduction of the unpaid outstanding
principal balance of the Loan. Otherwise, the Release Fee shall be applied
to accrued interest, principal or other costs of the Mortgaged Premises in
such priority as Lender shall determine. Notwithstanding the foregoing, all
outstanding interest in connection with the Lot being released must be
brought current in order to release such Lot from the lien of the Mortgage.
Expenses incurred by Lender with respect to the preparation and recordation
of the release documents contemplated hereunder shall be calculated by
Lender at the time of issuance of the release information, and payment of
such expenses shall be the responsibility of Borrower.
5. Affirmative Covenants. Borrower covenants that, until the Loan and all
interest accrued thereon shall have been paid in full, unless the prior
written consent of Lender shall have been first obtained, it shall:
(a) Deliver or cause to be delivered to Lender the following financial
statements of Borrower for every twelve (12) month calendar period during
the Loan Term hereof:
(I) A complete set of audited financial statements, including balance
sheets and profit and loss statements, prepared by Borrower's certified
public accountant within ninety (90) days
following the close of each fiscal year of Borrower, all data being applied
according to generally accepted accounting principles consistently applied,
with all data being prepared according to generally accepted accounting
principles consistently applied;
(ii) Such additional information as Lender may reasonably request of
Borrower.
(b) Keep all insurance required hereby and by the Mortgage in full force
and effect;
(c) Comply with all existing and future laws, ordinances, regulations,
orders and requirements of all governmental, judicial and legal authorities
having jurisdiction over the Lots or Improvements, and with all restrictions
and agreement affecting the Lots or Improvements or Borrower's use or
development thereof;
(d) Use the Loan proceeds solely for the purpose of paying the costs of
constructing the Improvements;
(e) Promptly pay and discharge all claims and liens for labor done and
materials and services furnished in connection with the construction of the
Improvements and not permit any lien or encumbrance to be placed against
any Lot, except the Mortgage to Lender, whether or not such lien or
encumbrance is prior to the lien of such Mortgage;
(f) Upon the request of Lender, provide an endorsement to Lender's ALTA
policy to title insurance for any Lot, which endorsement shall (I) increase
the coverage of the title policy to the amount advanced for acquisition of
such Lot and construction of Improvements thereon, (ii) insure the
continuing first lien priority of the Mortgage on such Lot, and (iii)
confirm continuing coverage against mechanics' liens. After such request,
Lender shall be under no obligation to disburse further Loan proceeds until
Borrower shall have provided such endorsement;
(g) Borrower agrees during the term of the Loan to perform such acts and
provide such additional documentation to Lender as Lender may reasonably
require;
(h) Provide to Lender within seven (7) days of the execution thereof a copy
of any agreement of sale between Borrower and any third party covering any
Lot, which agreement shall specifically set forth a subordination of such
agreement of sale to Lender's Mortgage then on or to be placed on such Lot;
(i) Borrower agrees that all materials delivered to any Lot by materialmen
or suppliers for the purpose of being used in connection with the
construction of the Improvements or to be incorporated in the Improvements
shall be subject to the lien of the Mortgage, as against Borrower and all
parties acting or claiming under or through Borrower;
(j) Borrower will give prompt notice to Lender of any breach or Event of
Default under the Loan Documents, of any material casualty to any of
Borrower's properties or the commencement of any adverse suit or proceeding
involving Borrower, or of any material change in any litigation involving
Borrower;
(k) Borrower will promptly pay all taxes, government charges and liens,
if valid, otherwise, Borrower shall diligently defend and reserve against
same;
(l) Borrower will keep proper and true books of account and records;
(m) Borrower will conform to all laws and regulations applicable to
Borrower;
(n) Borrower will comply with all applicable requirements of EISA and
notify Lender upon the happening of any "reportable event";
(o) Borrower will promptly notify Lender of any change (I) in the senior
management of Borrower, (ii) of Borrower's name, (iii) of any shareholder
holding greater than ten percent (10%) of the shares in Borrower, (iv) or
in Borrower's principal place of business, records, offices, registered
office, location of collateral, Articles of Incorporation, By-laws,
Certificate of Limited Partnership or Partnership Agreement, or
depreciation methods of fiscal year;
(p) Borrower will maintain all of Borrower's property in good repair;
(q) Borrower agrees to indemnify Lender and to hold Lender harmless of an
from any and all liability, loss or damage, including attorney's fees and
costs, which Lender may or might occur by reason of the presence, removal
or disposal of any hazardous wastes or materials (as defined in any
applicable federal, state or local law, regulation or ordinance) present on
or about the Mortgaged Premises;
(r) Borrower agrees at all times during the term of the Loan to maintain a
ratio of Borrower's entire debt obligations (whether or not related to this
Loan, the Lots and the Improvements) ; to - Tangible Net Worth of not less
than .5: 1.
6. Negative Covenants. Borrower agrees that it will not, without prior
written consent of Lender:
(a) Directly or indirectly, create, incur, assume or permit to exist any
indebtedness for borrowed money, except in the normal course of business
(it being understood that Borrower's normal course of business shall include
receiving loans for speculative housing or for the acquisition of equipment)
without the prior written consent of Lender, which consent shall not be
unreasonably withheld;
(b) Directly or indirectly, create, incur, assume, suffer or permit to
exist any mortgage, pledge, lien, security interest or other charge or
encumbrance upon or with respect to any of its assets, or assign, or
otherwise convey any right to receive income, except in favor of Lender,
except those encumbrances that have already been disclosed to Lender in
writing or which Lender has approved in writing with respect to this Loan
except in the normal course of business (it being understood that
Borrower's normal course of business shall include receiving loans for
speculative housing or for the acquisition of equipment);
(c) Directly or indirectly guarantee, assume, endorse, become a surety or
accommodation party for, or otherwise in any way extend credit or become
responsible for or remain liable or contingently liable in connection
with any indebtedness or other indebtedness of any other person or entity
except guaranties and endorsements made in connection with the deposit of
negotiable instruments and other items for collection or credit in the
ordinary course of business;
(d) Enter into any transaction of merger or consolidation;
(e) Transfer, sell, assign, discount, lease or otherwise dispose of any of
its notes, or other instruments, accounts receivable or contract rights
with or without recourse, except for collection in the ordinary course of
business, or any assets or properties necessary or desirable for the proper
conduct of its business;
(f) Dispose or sell any substantial part of Borrower's property or assets
other than the sales of Lots and Improvements in the ordinary course of
Borrower's business;
(g) Change the nature of its business:
(h) Wind-up, liquidate or dissolve itself or any subsidiary thereof, with
the exception that a subsidiary of Borrower may be dissolved into Borrower
or into another wholly owned subsidiary;
(i) Invest in, transfer any assets to, or do any business through any
subsidiary not previously disclosed in writing to Lender;
(j) Use the Loan Proceeds for any use other than investment into projects
approved by Lender, including without limitation, Borrower shall not use
the Loan Proceeds for the direct or indirect purchase or carrying of
"margin stock";
(k) Insure itself or its property through captive insurance companies or
self insurance; or
(l) Permit to exist any hazardous substance (as such term is defined in any
federal, state or local law or regulation) in or on any property owned,
leased, controlled or operated by Borrower which is not stored, contained
or used in compliance with all applicable laws and regulations or permit
any seepage, spill, release or discharge of hazardous substance on or from
any such property at any time.
7. Events of Default. If one or more of the following events of default
("Event of Default") shall occur, that is to say:
(a) Borrower shall default in the payment under the Note when due or within
the applicable grace period, if any, set forth therein,
(b) Any representation or warranty herein or in the other Loan Documents or
in any certificate or other document delivered in connection herewith made
shall prove to have been false or misleading in any material respect as of
the time made or deemed to have been made;
(c) Borrower shall default in the performance of any other covenant,
condition or provision hereof and such default shall not be remedied for a
period of thirty (30) days after written notice thereof by Lender;
(d) Any other default shall have occurred in the performance of any
covenant, condition or provision of the Mortgage or the other Loan
Documents that is not cured within the applicable grace period, if any,
set forth therein;
(e) Borrower shall become insolvent or unable to pay their respective debts
as the same shall mature, or there shall be filed by or against Borrower a
petition in bankruptcy or a petition seeking the appointment of a receiver,
trustee or conservator for the Borrower or any portion of their respective
properties, or seeking reorganization or to effect a plan or other
arrangement with or for the benefit of creditors, or if Borrower shall
consent to the appointment of a receiver, trustee or conservator.
(f) If there occurs a default under any note, document, instrument or other
agreement between Lender and Borrower and/or any affiliate of Borrower, any
such default continues after the expiration of any applicable grace
period as provided in said Note, document, instrument or other agreement.
Then, and in any such event, Lender shall not be under any further obligation
to make advances hereunder, and shall have the right to declare the
aggregate unpaid balance of the principal of the Loan, together with all
interest accrued thereon, to be forthwith due and payable, and the same
shall thereupon become due and payable, without any presentment, demand,
protest or notice of any kind, of which or hereby expressly waived, provided
that such sums shall automatically and without notice forthwith become due
and payable upon the occurrence of an Event of Default as set forth in
subparagraph (e) above.
Notice. All notices, demands and requests which may be or are required to
be given hereunder or under the other Loan Security Documents shall be given
in writing and shall be deemed to have been duly given if sent by telefax
(with a confirming telephone call to confirm receipt), FedEx or other
overnight receipted delivery system, or United States Registered or
Certified Mail, Return Receipt Requested, postage prepaid, addressed to
Lender at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, and to Borrower at 0000 Xxxxxx Xxxxx,
Xxxxx 000, Xxxx, Xxxxxxxxxxxx 00000-0000, Attention: Xxxxx Xxxxxx, or to
such other place or places as the parties hereto may for themselves
designate in writing from time to time for the purpose of receiving
notices hereunder.
9. Right of Set-Off. In addition to any other rights it may have under
this agreement or pursuant to law, upon the occurrence of an Event of
Default, any and all moneys now or hereafter in the hands of Lender on
deposit or otherwise, whether in a general or special account, belonging to
Borrower shall immediately become the subject of set-off by Lender against
any indebtedness that shall be in existence hereunder, and any other
liability or liabilities of Borrower to Lender then in existence, whether
said indebtedness and liability or liabilities are due or to become due,
and any such monies may immediately be appropriated by Lender to the payment
of such indebtedness and liability or liabilities in such manner as it shall
see fit. Borrower hereby grants to Lender a security interest in any and
all such monies to secure payment of all sums due hereunder or owing to
Lender pursuant hereto.
10. Cooperation. Borrower will cooperate at all times with Lender in
bringing about the timely completion of the Improvements, and Borrower will
resolve all disputes arising during the work of construction in a manner
that will allow work to proceed expeditiously in order to complete the
Improvements in a diligent and workmanlike manner.
ll. Payment of Expenses. Borrower will pay Lender's out-of-pocket costs and
expenses incurred in connection with the making, disbursement and
administration of the Loan and the construction of the Improvements, the
exercise of any of its rights or remedies under the Loan Documents, and all
other matters related to the transactions contemplated hereby, including
but not limited to title insurance, settlement and escrow charges,
recording charges, transfer, documentary, ad valorem and mortgage taxes,
legal fees and disbursements, and all other reasonable fees and costs for
services. The provisions of this paragraph shall survive the termination of
this Agreement and the repayment of the Loan.
12. Indemnification. With respect to any requisition of Loan proceeds
requested by Borrower, Borrower hereby releases and agrees to indemnify and
defend Lender and hold Lender harmless from and against all liability
whatsoever arising in connection with the payment or nonpayment by Lender
to Borrower and/or any person, firm or corporation whatsoever of all or any
part of the monies advanced by Lender to fund any such requisition, whether
or not such liability is caused by or results from, directly or indirectly,
the negligence of Lender or any other person, firm or corporation and from
any and all suits, claims or damages arising out of disputes between
Borrower and any subcontractor, materialman or supplier, or any municipal
or public authority.
13. Cross-Collateralization. The Mortgage shall extend to and cover any
additional loans made by Lender to Borrower at any time or times heretofore
or hereafter.
l4. Miscellaneous.
(a) No delay or failure on the part of Lender to exercise any right, power
or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege.
(b) Any waiver by Lender must be in writing and will not be construed as a
continuing waiver. No waiver will be implied from any delay or failure by
Lender to take action on account of any default of Borrower. Consent by
Lender to any act or omission by Borrower will not be construed to be a
consent to any other or subsequent act or omission or a waiver of the
requirement for Lender's consent to be obtained in any future or other
instance.
(c) This Agreement is made and entered into for the sole protection and
benefit Of Lender and Borrower. No trust fund is created by this Agreement
and no other persons or entities will have any right of action under this
Agreement or any right against Lender to obtain any Loan proceeds.
(d) Borrower irrevocably appoints Lender as its attorney-in-fact, with full
power of substitution, to file for record, at Borrower's cost and expense
and in Borrower's name, any notices that Lender considers necessary or
desirable to protect its security.
(e) Lender will have the right, but not the obligation, to commence, appear
in, and defend any action or proceeding that might affect its security or
its rights, duties or liabilities relating to the Loan, the Lots,
Improvements or this Agreement. Borrower will pay promptly on demand all of
Lender's reasonable out-of-pocket costs, expenses and legal fees and
disbursements incurred in those actions or proceedings.
(f) The Note is secured by a Mortgage on real estate situate in the
Commonwealth of Pennsylvania and shall be deemed made under and governed by
the laws of the Commonwealth of Pennsylvania in all respects, including
matters of construction, performance and enforcement. Borrower agrees that
the Courts of Common Pleas of Allegheny County, Xxxxxx County, Beaver County
and Xxxxxxxx County, Pennsylvania and the United States District Court for
the Western District of Pennsylvania shall have exclusive jurisdiction and
venue with respect to all actions by or against Borrower under or pursuant
to the Note, this Loan Agreement or any other Loan Document, and Borrower
hereby consents to the jurisdiction of such courts and to service of process,
effective upon receipt by personal service, overnight express delivery or
registered or certified mail to Borrower at the address given above. Borrower
shall promptly notify Lender of any change in Borrower's address.
(g) The terms of this Agreement will bind and benefit the heirs, legal
representatives, successors and assigns of the parties; provided, however,
that Borrower may not assign this Agreement or any Loan proceeds, or assign
or delegate any of its rights or obligations, without the prior written
consent of the Lender.
(h) The invalidity or unenforceability of any one or more provisions of
this Agreement will in no way affect any other provisions.
(i) Whenever the context requires, all words used in the singular will be
construed to have been used in the plural, and vice versa, and each gender
will include any other gender. The captions of the paragraphs of this
Agreement are for convenience only and do not define or limit any terms or
provisions. Time is of the essence in the performance of this Agreement by
Borrower.
(j) This Agreement may not be modified or amended except by a written
agreement signed by the parties.
(k) The terms and conditions of the Commitment are incorporated herein by
reference. All obligations and requirements of the Commitment and Borrower's
obligation to perform thereunder shall survive the execution of this
Agreement and shall continue in full force and effect until all obligations
of both parties hereunder shall terminate and the unpaid principal balance
of the Loan. all accrued interest and all other sums or costs advanced by
Lender have been paid in full. The provisions of the Commitment shall be
deemed supplemental to and not in derogation of the Loan Documents,
however, to the extent of any irreconcilable conflict between the terms of
any of the Loan Documents and the Commitment, the terms, covenants and
conditions of the Loan Documents shall control.
WITNESS the due execution hereof as of the day and year first above written.
LENDER: FIRST WESTERN BANK, NATIONAL ASSOCIATION, a national banking
association By: Xxxxxxx Xxxxxxx
Title: Commercial Loan Officer
ATTEST: Xxxxxxxxx X. Xxxxxx
WITNESS: Xxxxxxx X. Xxxxxxx
BORROWER:
SEVEN FIELDS DEVELOPMENT COMPANY, a Pennsylvania business trust
By: Seven Fields Management, Inc., a
Pennsylvania corporation
By: Xxxxx Xxxxxx
Title: Chief Financial Officer
This execution page is part of the Revolving Line of Credit Loan Agreement
dated as of the 13th day of August, 1996 between Seven Fields Development
Company, and First Western Bank, National Association.
EXHIBIT B
CONSTRUCTION LOAN PAYOUT SCHEDULE
DOCUMENTATION REQUIRED PRIOR TO FIRST ADVANCE:
a. Excavator's Affidavit
b. Building Permit displayed on construction site
c. Final Survey locating all improvements
d. Paid Fire Insurance Policy
e. Lot chart for flow and capacity of well (if applicable)
f. Permit for installation of septic system (if applicable)
1. On completion and/or installation of the FOUNDATION SYSTEM 15%
$
a. Footing and basement wall or slab
b. Structural steel; beams and lintels
c. Steel columns (threaded columns not acceptable)
d. Well (if applicable)
2. On completion and/or installation of the FRAMING SYSTEM 15%
$
a. Exterior walls and sheathing
b. Roof framing and sheathing
c. Partition walls
d. Rough flooring
3. On completion and/or installation of EXTERIOR FINISH 15%
$
a. Exterior wall finish (brick, aluminum, stone, etc.)
b. Windows (excluding basement windows)
c. Exterior doors (including garage doors)
4. On completion and/or installation of MECHANICAL ROUGH-IN to the basement
area and structure prepared for application of interior wall surfaces 15%
$
a. Plumbing (water and drainage pipes)
b. Electrical (wiring)
c. Heating (duct work)
d. Tub and/or shower enclosures
5. On completion and/or installation of ROOF AND INTERIOR WALLS 10%
$
a. Exterior: roof, (shingles, shakes, etc.)
soffit, fascia, gutters and downspouts
b. Interior walls (lath, plaster, drywall, paneling, etc.)
c. Basement windows
d. Finished concrete interior flooring (basement and garage)
6. On completion and/or installation of INTERIOR DOORS, TRIM
AND KITCHEN EQUIPMENT 15%
$
a. Interior doors and trim
b. Shelving
c. Kitchen base and wall cabinets
d. Kitchen equipment on site (sink, disposal, dishwasher, range, hood,
fan, etc.)
e. Tile work completed (if applicable)
f. Primer coat of exterior paint
7. On completion of the ENTIRE STRUCTURE - READY FOR OCCUPANCY 15%
$
a. Furnace installed, connected and operable
b. Hot water tank installed, connected and operable
c. All electrical fixtures installed, connected and operable
d. All plumbing Fixtures installed, connected and operable
e. All floor covering installed (carpet, tile, hardwood, etc.)
F. All lot improvement completed (grading, walks, driveway, landscaping, etc.)
EXHIBIT C
REQUEST FOR DISBURSEMENT
Date , 199_
TO:
REQUEST FOR DISBURSEMENT
Re: Revolving Line of Credit Loan Agreement (the "Agreement"), dated 1996,
between FIRST WESTERN BANK, NATIONAL ASSOCIATION and SEVEN FIELDS
DEVELOPMENT COMPANY
In accordance with the terms of the Agreement, you are hereby authorized
and requested to make disbursement of funds held by you in the amount shown
by the attached Cost Certificate [the form to be designated by Lender],
which is incorporated herein by this reference and made a part hereof, and
which indicates the state from the Construction Loan Payout Schedule
(Exhibit B of the Agreement) for which funds are requested. Attached
hereto are invoices and lien releases and waivers supporting the disbursement
hereby requested. All capitalized terms herein have the meanings ascribed to
them in this Agreement.
Borrower and Contractor hereby each certify that:
(a) the labor, services and/or materials covered hereby have been performed
upon or furnished in connection with the Improvements;
(b) all construction of the Improvements to date has been performed in
accordance with the Plans and there have been no changes in the plans,
except as have been approved by you
(c) to its knowledge, no default and no event or condition which, with the
passage of time or the giving of notice, or both, would constitute a
default under the Construction Contract has occurred or exists as of the date
hereof;
(d) there have been no changes in the scope or time of performance of the
work of construction, nor any extra work, labor or materials ordered or
contracted for, except as have been approved by you in writing;
(e) the Loan proceeds hereby requested for construction costs will pay all
sums payable to date for any labor, materials and services furnished in
connection with construction of the Improvements;
(f) all amounts previously disbursed by you for labor, services and/or
materials pursuant to previous Requests for Disbursement have been paid to
the parties entitled thereto with the proper designation of contract and
account for which payment was made. Borrower hereby certifies that:
(a) no change is required in its budget for the construction of any of the
Buildings or Units or any category thereof;
(b) all conditions of the Agreement to the disbursement of the Loan proceeds
hereby requested have been fulfilled, and no Event of Default and no event
or condition which, with the passage of time or the giving of notice, or
both, would constitute an Event of Default under the Agreement has occurred
or exists as of the date hereof.
BORROWER
SEVEN FIELDS DEVELOPMENT COMPANY
CONTRACTOR
OPEN-END
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE SECURES FUTURE ADVANCES
(All notices to be given to Mortgagee pursuant to
42 PA. C.S.A. 8143 shall be given as set forth in
Section 9.01 of this Mortgage.)
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT ("Mortgage") IS MADE as
of the 13th day of August, 1996, by SEVEN FIELDS DEVELOPMENT COMPANY, a
Pennsylvania business trust, with an address at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxx, Xxxxxxxxxxxx 00000-0000 ("Mortgagor"), in favor of FIRST WESTERN BANK,
NATIONAL ASSOCIATION, a national banking association, with an address at 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 ("Mortgagee").
This Mortgage is an "Open-End Mortgage" as set forth in 42 PA.
C.S.A. 8143 and secures obligations up to a maximum amount of indebtedness
outstanding at any time of One Million Dollars ($1,000,000), plus accrued
and unpaid interest, including, but not limited to, advances for the payment
of taxes and municipal assessments, maintenance charges, insurance premiums,
costs incurred for the protection of the Mortgaged Property or the lien of
this Mortgage, expenses incurred by Mortgagee by reason of default by
Mortgagor under this Mortgage and advances for construction, alteration or
renovation on the Mortgaged Property, together with all other sums due
hereunder or secured hereby.
WITNESSETH:
WHEREAS, Mortgagor is the owner of a certain tract or parcel of land
situate in the Hawthorne Commons Plan of Lots, Seven Fields Boro Township,
Xxxxxx County, Pennsylvania described in Exhibit A attached hereto and
made a part hereof, together with the improvements now or hereafter erected
thereon;
WHEREAS, Mortgagee is making a revolving line of credit loan to
Mortgagor in an amount not to exceed One Million Dollars ($1,000,000) (the
"Loan"), the proceeds of which will be advanced to Mortgagor from time to
time pursuant to the terms and conditions of a certain Revolving Line of
Credit Loan Agreement, dated as of the date hereof (the "Loan Agreement")
between Mortgagor and Mortgagee for the purposes set forth in the Loan
Agreement.
NOW, THEREFORE, for the purpose of securing the payment and performance
of the following obligations (collectively called the "Secured Obligations"):
(A) all indebtedness, together with all interest thereon, evidenced by that
certain Revolving Line of Credit Note (the "Note") from Mortgagor to
Mortgagee dated as of the date hereof in the principal amount of One Million
Dollars ($1,000,000), as the same may be amended, supplemented, replaced or
renewed from time to time, the provisions of the foregoing document being
incorporated herein by this reference;
(B) any sums advanced by Mortgagee or which may otherwise become due pursuant
to the provisions of this Mortgage or pursuant to any other document or
instrument delivered to Mortgagee with respect to the Secured Obligations
(all such documents and instruments, including that identified in subpart A
above, are collectively referred to herein as the "Loan Documents").
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, mortgage, pledge and confirm unto
Mortgagee and does agree that Mortgagee shall have a security interest in
the following described property (collectively, the "Mortgaged Property"),
now owned or held or hereafter acquired, to wit:
(i) all of Mortgagor's estate in the premises described in Exhibit A,
together with all of the easements, rights of way, privileges, liberties,
hereditaments, rights and appurtenances thereunto belonging and all of the
estate, right, title, interest, claim and demand whatsoever of Mortgagor
therein and in the public streets and ways adjacent thereto, either in law
or in equity, in possession or expectancy (collectively, the "Realty");
(ii) the structures and buildings, and all additions and improvements
thereto, now or hereafter erected upon the Realty (including all Equipment,
as hereinafter defined, constituting fixtures) (collectively, the
"Improvements");
(iii) all leases and other agreements now or hereafter in existence
relating to the use, occupancy or possession of the Realty, Improvements or
Equipment, or any part thereof, and all right, title and interest of
Mortgagor thereunder, including cash and securities deposited thereunder to
secure performance by the tenants of their obligations thereunder, and
including further, the right to receive and collect the rents ("Rents")
thereunder and all guaranties thereof (collectively, the "Leases");
(iv) all machinery, apparatus, equipment, fittings, appliances and
fixtures of every kind and nature whatsoever, and regardless of whether
the same may now or hereafter be attached or affixed to the Realty or
Improvements (collectively, the "Equipment");
(v) all Mortgagor's rights and interests in and to the Sale Agreements
(as defined in Section 8.5 hereof);
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee, its
successors and assigns, to its own use forever in accordance with the
provisions hereof.
ARTICLE 1
REPRESENTATION AND WARRANTIES
Mortgagor represents and warrants to Mortgagee as follows:
1.1 Warranty of Title. Mortgagor has good and marketable title to an
estate in fee simple absolute in the Realty and Improvements and has all
right, title and interest in all other property constituting a part of the
Mortgaged Property, in each case free and clear of all liens and
encumbrances, except as set forth on Mortgagee's title insurance policy
with respect to the Mortgaged Property or as otherwise approved in writing
by Mortgagee. This Mortgage is a valid and enforceable first lien on the
Mortgaged Property (except as set forth in Mortgagee's policy of title
insurance or as otherwise approved in writing by Mortgagee), and Mortgagee
shall, subject to Mortgagor's right of possession prior to an Event of
Default, quietly enjoy and possess the Mortgaged Property. 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 Mortgagee
against the claims of all persons and parties whomsoever.
ARTICLE 2
AFFIRMATIVE COVENANTS
Until all of the Secured Obligations shall have been fully paid,
satisfied and discharged Mortgagor shall:
2.1 Payment and Performance of Secured Obligations. Pay and perform all
Secured Obligations when due as provided in the Loan Documents.
2.2 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 Mortgagor
or to any of the Mortgaged Property (collectively, the "Legal Requirements").
2.3 Impositions.
(a) Before interest or penalties are due thereon and otherwise when due,
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 Mortgaged Property, all
general and special assessments (including, without limitation, 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 Mortgagor or any of the Mortgaged Property. The
obligations referred to in this Section are hereinafter collectively referred
to as the "Impositions". Within thirty (30) days after the payment of any
Imposition, Mortgagor shall deliver to Mortgagee evidence acceptable to
Mortgagee of such payments.
(b) Subject to the right of Mortgagor to contest the payment of any
Imposition as hereinafter provided, Mortgagee may pay or perform any
Imposition and add the amount so paid or the cost incurred to the Secured
Obligations, and all such amounts shall on demand be due and payable.
(c) Mortgagor may in good faith contest, by proper legal proceedings, the
validity of any Legal Requirement or the validity or amount of any
Imposition, provided (I) an Event of Default does not exits, and (ii) such
contest is maintained and prosecuted with diligence.
2.4 Maintenance and Impairment of Security. Mortgagor shall keep the
Mortgaged 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 Mortgagee's prior written consent.
Mortgagor shall not remove, demolish or alter the Mortgaged Property nor
commit or suffer waste with respect thereto, nor permit the Mortgaged
Property to become deserted or abandoned. Mortgagor shall permit Mortgagee
and its agents at any time, and from time to time, to enter upon and visit
the Mortgaged Property for the purpose of inspecting and appraising the same.
Mortgagor covenants and agrees not to take or permit any action with respect
to the Mortgaged Property which will in any manner impair the security of
this Mortgage.
2.5 Use of Mortgaged Property. Mortgagor shall use, and permit others to use,
the Mortgaged Property only for uses permitted under applicable Legal
Requirements.
2.6 Books and Records. Mortgagor shall maintain and Mortgagee shall have
access to complete and adequate books of account and other records relating
to the operation and use of the Mortgaged Property as Mortgagee may require.
Mortgagor shall permit Mortgagee to photocopy such books and records.
ARTICLE 3
NEGATIVE COVENANTS
Until all of the Secured Obligations shall have been fully paid, satisfied
and
3.1 Leases. Mortgagor shall not (I) execute an assignment or pledge of
the Rents and/or the Leases other than in favor of Mortgagee; or (ii) accept
any prepayment of an installment of any Rents prior to the due date of
such installment.
3.2 No Other Financing or Liens. Mortgagor shall not enter into any
lease for any personal property, as lessee, which is to be used in c
onnection with the operation of Mortgagor's business at the Mortgaged
Property or create or cause or permit to exist any lien on or security
interest in, whether voluntary or involuntary, any part of the Mortgaged
Property, other than in favor of Mortgagee.
3.3 Sale of Mortgaged Property: Etc. Mortgagor shall not sell, assign,
give, mortgage, pledge, hypothecate, encumber, lease or otherwise transfer
the Mortgaged Property, or any part thereof or interest therein, voluntarily
or involuntarily, without Mortgagee's prior written consent, except in
accordance with the terms and conditions of the Revolving Line of Credit
Loan Agreement and the Revolving Line of Credit Note executed
contemporaneously herewith.
ARTICLE 4
INSURANCE, CONDEMNATION AND RESTORATION
4.1 Insurance.
(a) Mortgagor shall maintain comprehensive public liability insurance,
fire insurance with extended coverage, builder's risk insurance with respect
to any construction, renovation or reconstruction, contractual liability
insurance for all indemnification obligations of Mortgagor under all Leases
and such other insurance as may be required from time to time by Mortgagee.
The amounts, Overages and other terms and conditions of the insurance
policies shall at all times be satisfactory to Mortgagee and shall satisfy
any coinsurance requirements of Mortgagee. Mortgagor shall pay as they
become due all premiums for such insurance, shall keep each policy in full
force and effect, shall deliver to Mortgagee evidence of the payment of the
full premium therefor at least twenty (20) days prior to the expiration date
of each policy and shall deliver to Mortgagee original policies of insurance,
with noncontributory mortgagee clauses in favor of and acceptable to
Mortgagee. Mortgagor's liability insurance policy shall specifically name
Mortgagee as an additional insured. Each policy shall provide for written
notice to Mortgagee at least thirty (30) days prior to any cancellation,
nonrenewal or amendment of such Insurance.
(b) If the Mortgaged Property is located in an area which has been
identified by any governmental agency, authority or body as a flood hazard
area or the like, then Mortgagor shall maintain a flood insurance policy
covering the Mortgaged Property in an amount not less than the full
replacement value of the Mortgaged Property or the maximum limit of
coverage available under the federal program, whichever amount is less.
4.2 Rights of Mortgagee to Proceeds. In the event of loss, Mortgagor
shall not adjust, collect or compromise any insurance claims under said
policies without the prior written consent
of Mortgagee. Each insurer is hereby authorized and directed to make payment
under said policies, including return of unearned premiums, to Mortgagor and
Mortgagee jointly. All insurance proceeds shall be payable to Mortgagee
and such proceeds may, at Mortgagee's sole option, be applied to all or any
part of the Secured Obligations and in any order (notwithstanding that such
Secured Obligations may not then otherwise be due and payable) or to the
repair and restoration of any of the Mortgaged Property under such terms and
conditions as Mortgagee may impose. Mortgagee shall not be deemed to have
elected such option until such option is elected specifically in writing.
Until so elected, Mortgagee shall not in any circumstances be deemed to have
waived its right to make such election.
4.3 Condemnation. Mortgagor, immediately upon obtaining knowledge of
the institution of any proceedings for the condemnation or taking by eminent
domain of any of the Mortgaged Property, shall notify Mortgagee of the
pendency of such proceedings. Mortgagee may participate in any such
proceedings and Mortgagor shall deliver to 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 Mortgagee, and any award or compensation
shall be applied, at Mortgagee's option, to any part of the Secured
Obligations and in any order (notwithstanding that any of such Secured
Obligations may not then be due and payable) or to the repair and
restoration of any of the Mortgaged Property under such terms and conditions
as are set forth in Section 4.4 or otherwise as Mortgagee may impose.
Mortgagee shall not be deemed to have elected such option until such option
is elected specifically in writing. Until so elected, Mortgagee shall not
in any circumstances be deemed to have waived its right to make such election.
ARTICLE 5
DEFAULT
5.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
(a) a failure to pay any Secured Obligations when due in accordance with the
terms thereof;
(b) Mortgagor shall fail to perform or observe any of the obligations in
Article 3 or 4 of this Mortgage;
(c) a failure by Mortgagor to duly perform and observe any other provision
in this Mortgage, and such failure shall continue for a period of thirty
(30) days after notice from Mortgagee;
(d) any representation or warranty made by Mortgagor herein or in any of
the Loan Documents or in any other instrument or document which pertains to
or is delivered in connection with any of the Secured Obligations proves
to be incorrect, now or hereafter, in any material respect;
(e) Mortgagor, or any obligor or guarantor of any of the Secured Obligations,
shall become insolvent or unable to pay its or his debts as the same mature,
or a petition shall be filed by or against Mortgagor or any such party in
bankruptcy or seeking the appointment of a receiver, trustee or conservator
for Mortgagor or any such party or for any portion of its or his or her
property, or for reorganization or to effect a plan or other arrangement
with or for the benefit of creditors or Mortgagor or any such party shall
consent to the appointment of a receiver, trustee or conservator for
Mortgagor or any such party or for any portion of its or his or her property;
(f) foreclosure proceedings are instituted against the Mortgaged Property
upon any other lien or claim, whether alleged to be superior or junior to
the lien of this Mortgage;
(g) Mortgagor shall fail to comply with any duty or obligation imposed
pursuant to Article 7 hereof or any warranty or representation contained
therein shall be incorrect or misleading; or
(h) Mortgagor shall at any time deliver or cause to be delivered to
Mortgagee a notice pursuant to 42 PA. C.S.A. 8143 electing to limit the
indebtedness secured by this Mortgage.
5.2 Demand Obligation. Nothing in this Mortgage or any of the other Loan
Documents shall be construed to limit the applicability of any term of the
Loan Documents providing for the payment of any Secured Obligations on
demand.
ARTICLE 6
REMEDIES
6.1 Rights and Remedies of Mortgage. If an Event of Default occurs, and is
not cured within the applicable grace period, if any, Mortgagee may, at its
option and notwithstanding any contrary provisions in the Local Documents,
without demand, notice or delay, do one or more of the following:
(a) Mortgagee may declare the entire unpaid principal balance of the
Secured Obligations, together with all interest thereon, to be due and
payable immediately (and in the case of an Event of Default under subsection
5.1(e), all such indebtedness shall automatically and immediately become
due and payable without notice or any other act).
(b) Mortgagee may (i) institute and maintain an action of mortgage
foreclosure against the Mortgaged Property and the interests of Mortgagor
therein, (ii) institute and maintain an action on any instruments evidencing
the Secured 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 Mortgagee shall be entitled
to all costs of suit and attorneys fees.
(c) Mortgagee may, in its sole and absolute discretion, and without
releasing Mortgagor or any other obligor or guarantor from any obligation
under any of the Loan Documents and
without waiving any Event of Default: (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 Mortgagor under any Lease, or (iii) enforce
any obligation of any tenant of any of the Mortgaged Property. Mortgagee
may exercise any right under this subsection (c), whether or not Mortgagee
shall have entered into possession of any of the Mortgaged Property, and
nothing herein contained shall be construed as constituting Mortgagee a
"mortgagee in possession", unless Mortgagee shall have entered into and
shall continue to be in actual possession of the Mortgaged Property.
Mortgagor hereby authorizes and directs each and every present and future
tenant of any of the Mortgaged Property to pay all Rents directly to
Mortgagee and to perform all other obligations of that tenant for the direct
benefit of Mortgagee, as if Mortgagee were the landlord under the Lease with
that tenant, immediately upon receipt of a demand by Mortgagee to make such
payment or perform such obligations. 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 Mortgagee,
and any such payment or performance to Mortgagee shall discharge the
obligations of the tenant to make such payment or performance to Mortgagor.
6.2 Sale in Parcels or Units. In case any sale under this Mortgage
occurs by virtue of judicial proceedings, the Mortgaged Property may be sold
in one parcel or unit and as an entity, or in such parcels or units, and in
such manner or order, as Mortgagee in its sole discretion may elect.
6.3 Confession of Judgment in Ejectment. At any time after the
occurrence of an Event of Default, without further notice, regardless of
whether 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 licensed in the Commonwealth of Pennsylvania as attorney
for Mortgagor to confess judgment in ejectment against Mortgagor and all
persons claiming under Mortgagor for the recovery by Mortgagee of possession
of all or any part of the Mortgaged Property, for which this Mortgage shall
be sufficient warrant. If for any reason after such action shall have
commenced the same shall be determined and the possession of the Mortgaged
Property remain in or be restored to Mortgagor, 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 Mortgaged Property.
6.4 Remedies Cumulative. All remedies contained in this Mortgage are
cumulative and Mortgagee also has all other remedies provided by law or in
equity or in any of the other Loan Documents. No delay or failure by
Mortgagee to exercise any right or remedy under this Mortgage will be
construed to be a waiver of that right or remedy or a waiver of any Event of
Default. Mortgagee may exercise any one or more of its rights and remedies
without regard to the adequacy of its security.
ARTICLE 7
ENVIRONMENTAL MATTERS
7.1 Environmental Protection.
(a) The Mortgagor represents and covenants that, except as disclosed by
the Mortgagor to the Mortgagee in writing on or prior to the date of this
act, (I) the Mortgagor has not caused or suffered to occur and the Mortgagor
will not hereafter cause or suffer to occur, a discharge, spillage,
uncontrolled loss, seepage or filtration of oil or petroleum or chemical
liquids or solids, liquid or gaseous products or hazardous waste (a "spill"),
or release of a hazardous substance at, upon, under or within the Mortgaged
Property or any contiguous real estate; (ii) neither the Mortgagor nor any
other party has been, is or will be involved in operations at or near the
Mortgaged Property which could lead to the imposition on the Mortgagor or
any other owner of the Mortgaged Property of liability or the creation of a
lien on the Mortgaged Property, under any applicable federal, state or local
statute, rule or regulation (collectively, the "Law") or under any similar
applicable laws or regulations; and (iii) the Mortgagor has not permitted
and will not permit any tenant or occupant of the Mortgaged Property to
engage in any activity that could lead to the imposition of liability on
such tenant or occupant, the Mortgagor or any other owner of any of the
Mortgaged Property, or the creation of a lien on the Mortgaged Property,
under the Law or any similar applicable laws or regulations.
(b) The Mortgagor shall comply strictly and in all respects with the
requirements of the Law and related regulations and with all similar
applicable laws and regulations and shall notify Mortgagee promptly in the
event of any spill or release of a hazardous substance upon the Mortgaged
Property, and shall promptly forward to Mortgagee copies of all orders,
notices permits, applications or other communications and reports in
connection with any such spill or release or any other matters relating to
the Law or related regulations or any similar applicable laws or
regulations, as they may affect the Mortgaged Property.
(c) The Mortgagor shall indemnify Mortgagee and hold Mortgagee harmless
from and against all loss, liability, damage and expense, including
attorneys' fees, suffered or incurred by Mortgagee, whether as holder of
this Mortgage, as mortgagee in possession or as successor in interest to the
Mortgagor as owner of the Mortgaged Property by virtue of foreclosure or
acceptance of a deed in lieu of foreclosure (I) under or on account of the
Law or related regulations or any similar applicable laws or regulations,
including the assertion of any lien thereunder; (ii) with respect to any
spill or release or threatened release of a hazardous substance affecting
the Mortgaged Property whether or not the same originates or emanates from
the Mortgaged Property or any such contiguous real estate, including any
loss or value of the Mortgaged Property as a result of a spill or release
or threatened release of a hazardous substance; and (iii) with respect to
any other matter affecting the Mortgaged Property within the jurisdiction of
the U. S. Environmental Protection Agency or any similar state or local
agency; and
(d) In the event of any spill or release or threatened release of a
hazardous substance affecting the Mortgaged Property, whether or not the
same originates or emanates from the Mortgaged Property or any such
contiguous real estate, and/or if the Mortgagor shall fail to
comply with any of the requirements of the Law or related regulations or
any other environmental law or regulation, Mortgagee may at its election,
but without the obligation so to do, give such notices and/or cause such
work to be performed at the Mortgaged Property and/or take any and all other
actions as Mortgagee shall deem necessary or advisable in order to remedy
said spill or release or threatened release of a hazardous substance or cure
said failure of compliance and any amounts paid as a result thereof,
together with interest thereon at the Default Rate from the date of payment
by the Mortgagee shall be due and payable by the Mortgagor to Mortgagee
within fifteen (15) business days of demand therefor, and until paid shall
be added to and become a part of the indebtedness and shall have the benefit
of the lien hereby created as a part thereof.
7.2 Environmental Indemnification. Mortgagor covenants and agrees, at
its sole cost and expense, to indemnify, protect and hold Mortgagee
harmless against and from all claims, damages, losses, liabilities,
penalties, fines or judgments, including any attorney's fees, expert fees
or costs incurred, arising in any manner out of any of the matters set forth
in Section 7.1 above or otherwise arising under any Environmental Law,
whether such matters arise before or after the exercise of any remedies by
Mortgagee under this Mortgage or the taking of title by Mortgagee to all or
any portion of the Mortgaged Property. Indemnified matters shall include,
without limitation, all of the following: (I) the costs of removal of any
and all Commission from all or any portion of the Mortgaged Property or any
surrounding areas, (ii) additional costs required to take necessary
precautions to protect against the release of Contamination on, in, under
or affecting the Mortgaged Property onto the land and into the air, any body
of water, any other public domain or any surrounding areas and (iii) costs
incurred to comply, in connection with all or any portion of the Mortgaged
Property or any surrounding areas, with all Environmental Laws. The
indemnification obligations of this Section 7.2 shall survive repayment of
the Secured Obligations and satisfaction of this Mortgage.
ARTICLE 8
ADDITIONAL RIGHTS AND OBLIGATIONS
8.1 Installments for Insurance. Taxes and Other Charges. Without
limiting the effect of any other provision of this Mortgage, Mortgagor
shall, if requested by Mortgagee, pay to Mortgagee monthly with its payment
on the Note, 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 Mortgaged Property (the "Escrow Charges"); and on demand, from time
to time, Mortgagor shall pay to Mortgagee any additional sums necessary to
pay when due all Escrow Charges. The amounts so paid shall be security for
the Secured Obligations and shall be used in payment of the Escrow Charges
so long as no Event of Default shall have occurred. No amount so paid to
Mortgagee shall be deemed to be trust funds but may be commingled with
general funds of Mortgagee, nor shall any sums paid bear interest. Upon the
occurrence of an Event of Default, Mortgagee shall have the right, at its
election, to apply any amount so held against the Secured Obligations due and
payable in such
order as Mortgagee may deem fit, and Mortgagor hereby grants to Mortgagee a
lien upon and security interest in such amounts for such purpose.
8.2 Mortgagee's Right to Protect Security. 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 rights or powers
of Mortgagee hereunder; (b) take such action as 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 Mortgaged Property.
8.3 Mortgagee's Costs and Expenses. In the event of an Event of
Default or the exercise by Mortgagee of any of its rights hereunder, or if
Mortgagee shall become a party, either as plaintiff or defendant or
otherwise, to any suit or legal proceeding affecting any of the Mortgaged
Property or the Secured Obligations, or if review and approval of any
document, or any other matter related to any of the Secured Obligations, is
required by, or requested of, Mortgagee, Mortgagor shall pay to Mortgagee
on demand its costs, expenses and attorneys fees incurred in connection
therewith. If such amounts are not paid, they shall be added to the principal
secured hereby, shall be included as part of the Secured Obligations and
shall bear interest at the Default Rate from the date of demand.
8.4 Further Assurances. Mortgagor agrees to execute such further
assurances, documents and instruments as may be desirable by Mortgagee for
the purposes of further evidencing, carrying out and/or confirming this
Mortgage and for all other purposes intended by this Mortgage.
8.5 Release of Lots.
(a) The Mortgaged Property consists of separately subdivided lots in
the Hawthorne Commons Plan of Lots, recorded in the office of the Recorder of
Deeds of Xxxxxx County at Plan Book Volume 192, pages 31-34 (each such
subdivided lot is hereinafter called a "Lot"). Notwithstanding anything in
any of the Loan Documents to the contrary, upon the conveyance of any Lot,
Mortgagee shall grant a partial release of the lien of this Mortgage with
respect to the Lot conveyed provided that (I) no default, or event or
condition which with the passage of time or the giving of notice, or both,
would constitute a default, under this Mortgage or the Loan Documents shall
have occurred or exist, and (ii) Mortgagor, in addition to all other
payments required with respect to the Loan, shall have paid to Mortgagee
concurrently with such release a fee (the "Release Fee") equal to the amount
of funds advanced by Mortgagee under the Loan for such Lot and Improvements
thereon . Upon receipt, if Mortgagor is not in default, the Release Fee
shall be applied to the reduction of the unpaid outstanding principal
balance of the Loan. Otherwise, the Release Fee shall be applied to accrued
delinquency charges or fees, accrued interest, principal or other costs of
the Mortgaged Property in such priority as Mortgagee shall determine. At
least two (2) business days prior to the closing of the sale of the Lot,
Mortgagee shall provide Mortgagee with a copy of the proposed settlement
statement for such sale. It is also
agreed and understood that copies of final settlement statements for all
Lots sold will be delivered to Mortgagee at the time a release of Mortgage
is requested.
(b) Mortgagor hereby assigns, transfers, grants and conveys unto
Mortgagee, its successors and assigns, all of Mortgagor's right, title and
interest as Seller, in and to any and all agreements of sale for each Lot
(all such agreements of sale, collectively called the "Sale Agreements") to
have and to hold the same unto Mortgagee, its successors and assigns, until
payment in full of the Secured Obligations. Mortgagor hereby covenants and
agrees with Mortgagee as follows: Mortgagor shall promptly perform all of
the provisions of the Sale Agreements on the part of Seller thereunder to
be performed and appear and defend in any action or proceeding in any manner
connected with the Sale Agreements or the obligations of Mortgagor
thereunder. Within five (5) days after the request by Mortgagee, Mortgagor
shall deliver to Mortgagee a written statement containing the names of all
buyers, the terms of all Sale Agreements and the Lots to be sold and the
prices to be paid thereunder, together with a statement of all Sale
Agreements which are then in default, including the nature of such default.
Within five (5) days after execution of any Sale Agreement, Mortgagor shall
deliver to Mortgagee a duly executed counterpart thereof, certified by all
of the parties thereto to be true and correct.
Notwithstanding the foregoing, or any of the other provisions of this
paragraph 8.5, Mortgagor agrees that the Mortgagee shall have no liability
to the Mortgagor pertaining to or arising out of the Sale Agreements.
Mortgagor does and hereby agrees to indemnify Mortgagee and hold it harmless
from and against any and all liability, loss or damage which it may incur
under the Sale Agreements or under by reason of this assignment, including
costs, expenses and reasonable attorney's fees.
ARTICLE 9
MISCELLANEOUS MATTERS
9.1 Notice.
(a) Except as otherwise provided in this Mortgage, all notices
hereunder shall be in writing and shall be deemed to have been duly given
for all purposes when delivered in person, or when deposited in the United
States mail, by registered or certified mail, return receipt requested,
directed to the party to receive the same at the addresses set forth at the
beginning of this Mortgage or at such other address as may be substituted
by notice given as herein provided. The giving of any notice required
hereunder may be waived.
(b) All notices given by Mortgagor to Mortgagee pursuant to 42 PA.
C.S.A. 8143(c) shall be given to Mortgagee in accordance with this
Section 9.1 and must be signed by all parties necessary to bind Mortgagor in
accordance with the applicable documents of formation of Mortgagor and all
applicable laws.
9.2 Severability. In the event any one or more of the provisions
contained in this Mortgage shall for any reason be held to be inapplicable,
invalid, illegal, or unenforceable in any respect, such inapplicability,
invalidity, illegality or unenforceability shall not affect any other
provision of this Mortgage, but this Mortgage shall be construed as if such
inapplicable, invalid, illegal or unenforceable provision had never been
contained herein.
9.3 Successors and Assigns. All of the grants, covenants, terms,
provisions and conditions herein shall run with the land and shall apply to,
bind and inure to the benefit of, the successors and assigns of Mortgagor
and Mortgagee.
9.4 No Oral Modification. This Mortgage may be modified, amended,
discharged or waived only by an agreement in writing, signed by all of the
parties hereto.
9.5 Defeasance. If Mortgagor pays to Mortgagee in full the Secured
Obligations, and if Mortgagor is no longer able to borrow money under the
Loan Agreement, then this Mortgage shall become void.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly
executed the day and year first above written.
WITNESS: Xxxxxxx Xxxxxxx
SEVEN FIELDS DEVELOPMENT
COMPANY, a Pennsylvania business trust
By: Seven Fields Management, Inc., a
Pennsylvania Corporation
By: Xxxxx Xxxxxx
Title: Chief Financial Officer
CERTIFICATE OF RESIDENCE
The undersigned certifies that the residence of Mortgagee is 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000.
Xxxxxxx X. Xxxxxxx
(COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF XXXXXX
XX:
On this 13th day of August, 1996, before me, a notary public,
personally appeared Xxxxx Xxxxxx, who acknowledged himself to be the
Chief Financial Officer of SEVEN FIELDS MANAGEMENT, INC., a Pennsylvania
corporation, Trustee of SEVEN FIELDS DEVELOPMENT COMPANY, a Pennsylvania
business trust, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation as Trustee of such business trust by himself as such officer in
such Trustee.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
| Notarial Seal Xxxxxx X. Xxxxxxx, Notary Public
My Commission Expires Feb.16,1997
Member, Pennsylvania Association of Notaries
"EXHIBIT A"
ALL those certain pieces, parcels or tracts of land situate in the Borough
of Seven Fields, County of Xxxxxx, Commonwealth of Pennsylvania, being
known and designated as Hawthorne Commons Plan of Lots as recorded in
Plan Book Volume 192, pages 31 through 34.
Map S1, J Group and Map S4, C Group
REVOLVING LINE OF CREDIT NOTE
$1,000,000 Beaver, Pennsylvania
August 13, 1996
FOR VALUE RECEIVED, SEVEN FIELDS DEVELOPMENT COMPANY, a Pennsylvania
business trust (the "Borrower"), having its current mailing address at
0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxx, XX 00000-0000, promises to pay to the
order of FIRST WESTERN BANK, NATIONAL ASSOCIATION, a national banking
association, its successors and assigns (the "Lender"), at its office at
000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000, the principal
sum of ONE MILLION DOLLARS ($1,000,000) (the "Loan"), or so much of the
principal sum as shall have been advanced, repaid and re-advanced, borrowed,
repaid and reborrowed to or for the account of the Borrower under the terms
of this Note and the Revolving Line of Credit Loan Agreement of even date
herewith between Borrower and Lender (the "Loan
Agreement"), together with interest from the date or dates of disbursement
on the outstanding balances thereof, at the rates and in the installments as
hereinafter provided. It is provided, however, that Lender reserves the right to
decline to make any advance at any time if (a) an Event of Default has
occurred either under this Note, any Mortgage or any other Loan Document,
(b) any such advance will cause the principal outstanding balance of this
Note to exceed (i) Eighty Thousand Dollars ($80,000) per individual Unit, or
(ii) One Million Dollars ($1,000,000) at any one time outstanding in the
aggregate, or (c) the credit accommodation evidenced by this Note has
terminated pursuant to any separate line of credit agreement relating hereto.
DEFINITIONS:.
Land - Shall mean that certain parcel or parcels of land subject to the
lien of the Mortgage
Loan - The One Million Dollar ($1,000,000) line of credit Loan from Lender
to Borrower.
Loan Proceeds - As defined in the Loan Agreement.
Loan Closing - The time of delivery and execution of this Note and the
Loan Agreement.
Loan Documents - All documents and items considered by Lender to be related
to the Loan, including but not limited to (a) this Note; (b) the Open-End
Mortgage and Security Agreement (the "Mortgage"), dated the date hereof, by
Borrower to Lender encumbering the Land then only to the extent specifically
set forth in the writing. A waiver as to one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy as to a subsequent
event.
18. Usury. Notwithstanding any provision of this Note to the contrary,
it is the intent of Borrower and Lender that Lender shall not at any time be
entitled to receive, collect or apply, and Borrower and Lender shall not
be deemed to have contracted for, as interest on the principal indebtedness
evidenced hereby, any amount in excess of the maximum rate of interest
permitted to be charged by applicable law, and in the event Lender ever
receives, collects or applies as interest any such excess, such excess shall
be deemed partial payment of the principal indebtedness evidenced hereby,
and if such principal shall be paid in full, any such excess shall forthwith
be paid to Borrower.
19. Subsequent Loans. The Mortgage shall extend to and cover any
additional loans made by Lender to Borrower at any time or times heretofore
or hereafter.
20. No Affiliation. The Lender or any subsequent holder hereof shall
in no event be construed for any purpose to be a partner, joint venturer or
associate of Borrower or any lessee, operator, concessionaire or licensee of
Borrower in the conduct of their respective businesses.
21. Notices. All Notices shall be given to Borrower at: Seven Fields
Development Company, 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxx, Xxxxxxxxxxxx
00000-0000 Attention: Xxxxx Xxxxxx
Telephone No. (000) 000-0000
Telefax No. (000)000-0000
and to Lender at:
First Western Bank, National Association
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No. (000) 000-0000
Telefax No. (000) 000-0000
Except as otherwise provided in this Note, all notices hereunder shall
be in writing and shall be deemed to have been duly given for all purposes
when delivered in person or when sent by telefax (with a confirming
telephone call to confirm receipt), by FedEx or other overnight receipted
delivery system, or when deposited in the United States mail, by registered
or certified mail, return receipt requested, postage prepaid, directed to
the party to receive the same at its address stated above or at such other
address as may be substituted by notice given as herein provided.
22. Assignment. Borrower's obligations hereunder shall extend to and
bind Borrower's heirs, executors, administrators, successors and assigns.
This Note is fully assignable by Lender.
23. Governing Law. This Note is secured by the Mortgage on real estate
situate in the Commonwealth of Pennsylvania and shall be deemed made under
and governed by the laws of the Commonwealth of Pennsylvania in all
respects, including matters of construction, performance and enforcement.
Borrower agrees that the Courts of Common Pleas of Allegheny County, Xxxxxx
County, Beaver County, and Xxxxxxxx County, Pennsylvania and the United
States District Court for the Western District of Pennsylvania shall have
exclusive jurisdiction and venue with respect to all actions by or against
Borrower under or pursuant to this Note and Borrower hereby consents to
the jurisdiction of such courts and to service of process, effective upon
receipt by personal service, overnight express delivery or registered or
certified mail to Borrower at the address given above. Borrower shall
promptly notify Lender of any change in Borrower's address.
24. Severability. Wherever possible, each provision of this Note shall
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Note
or any portion thereof shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note.
25. Incorporation of Other Loan Documents. All of the Loan Documents
are hereby fully incorporated by reference into this Note with the same
force and effect as though fully set out herein.
26. Time of the Essence. Time is of the essence with respect to each
and every provision of this Note.
27. Headings. The headings in sections and titles of this Note are
inserted for convenience only and shall not be deemed to constitute a part
of this Note.
THIS DOCUMENT CONTAINS A PROVISION AUTHORIZING THE ENTRY OF JUDGMENT BY
CONFESSION. THIS MEANS THAT A JUDGMENT COULD BE ENTERED AGAINST
YOU WITHOUT NOTICE OR A TRIAL. THIS COULD RESULT IN YOUR PROPERTY BEING SOLD
BY THE SHERIFF IN ORDER TO SATISFY THIS JUDGMENT. BY SIGNING THIS DOCUMENT
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS CONTAINED
HEREIN.
IN WITNESS WHEREOF, Borrower, intending to be legally bound hereby, has
duly executed this Note as of the day and year first above written.
WITNESS: Xxxxxxx X. Xxxxxxx
SEVEN FIELDS DEVELOPMENT
COMPANY, a Pennsylvania business trust
By: Seven Fields Management, Inc. a
Pennsylvania Corporation
By: Xxxxx Xxxxxx
Title: Chief Financial Officer
This execution page is part of the Revolving Line of Credit Note dated as of
August 13,1996 between Seven Fields Development Company, and First Western
Bank, National Association.
INDEMNITY LETTER
Commonwealth Land Title Insurance Company
The Xxxxx Building Mezzanine Level
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
In re: Title Insurance Number [K134662BU]
Property: [Hawthorne Commons Plan, PBV 192 Pages 31 through 00
Xxxxxxx xx Xxxxx Xxxxxx, Xxxxxx, PA]
Insurer: First Western Bank
Gentlemen.
Reference is made to the above captioned transaction in which
Commonwealth Land Title Insurance Company (hereinafter referred to as
COMMONWEALTH) is requested to issue its Policy of Title Insurance to The
above named insured. In connection therewith, COMMONWEALTH has been
requested to furnish insurance against, or without exception for, loss
arising from possible unfiled mechanics' and/or materialmen's liens or
claims which may be filed or made against the above mentioned property. In
consideration of such insurance and in order to induce COMMONWEALTH to so
insure, the undersigned (hereinafter referred to as INDEMNITORS) agree and
Obligate themselves as follows:
(1) The INDEMNITORS hereby indemnify COMMONWEALTH and agree to hold it
harmless against any loss, claim, cost, damage or expense, including
attorneys'' fees and court costs, which it may sustain, suffer or incur by
reason of the filing, recording, assertion or claim Of any and all liens or
by reason of rights, actions, and claims entered, filed or commenced against
the above mentioned premises arising out of work done or alleged to be done
or materials furnished or alleged to be furnished to, or on account of any
construction, erection or improvement made or to be made upon the above
mentioned premises.
(2) In the event that any lien, claim or action, indemnified against
hereinabove, is filed, recorded, made or commenced against the above
mentioned premises, INDEMNITORS shall forthwith, after written demand to do
so, calls such lien, claim or action co be removed, terminated, satisfied,
released or otherwise disposed of in form and manner satisfactory to
COMMONWEALTH,
(3) Notwithstanding the performance of INDEMNITORS under the terms of
this Agreement, INDEMNITORS agree and hereby ratify any action, cost or
expense which COMMONWEALTH may undertake or incur in connection with its
obligations under its Policy of Title Insurance with respect co any and all
liens, claims or actions indemnified against hereunder, and the INDEMNITORS
expressly agree to reimburse and repay COMMONWEALTH promptly the full and
total amounts of any costs and expenses incurred by it in connection
therewith immediately upon demand therefor.
(4) The term, INDEMNITORS, shall include the singular as well as the
plural and, in the latter event, the INDEMNITORS agree than their liability
hereunder will be joint and several, expressly agreeing that COMMONWEALTH
may pursue any right or remedy arising out of this Agreement, and the
undertakings herein spaced against any one or more of the INDEMNITORS
without being required to pursue such right or remedy against the others.
Indemnity Letter Page Two
(S) Any notice required to be given to INDEMNITORS shall be deemed
given if sent by certified or registered mail to INDEMNITORS at the
following address:
The INDEMNITORS agree to submit to the jurisdiction and service or
Process of any court: having jurisdiction over the subject matter to the
same extent and with the same forms and effect as in the INDEMNITORS
were resident at this address, hereby expressly waiving the benefits of any
diversity of citizenship.
ATTEST: Xxxxxxx Xxxxxxx
WITNESS:
INDEMINITORS:
BY: Xxxxx Xxxxxx
