Exhibit 10.15.3
Tax Parcel No.:
_________________________________
This document prepared by:
_________________________________
_________________________________
_________________________________
Attention: _____________________
FORM OF CONSTRUCTION LOAN MORTGAGE
AND SECURITY AGREEMENT
by and between
as Mortgagor
and
ELDERTRUST OPERATING LIMITED PARTNERSHIP
as Mortgagee
TABLE OF CONTENTS
Page
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1. REPRESENTATIONS, WARRANTIES AND COVENANTS.............................5
2. ASSIGNMENT OF LEASES AND RENTS.......................................13
3. DECLARATION OF NO SET-OFF............................................13
4. INSPECTION...........................................................14
5. REQUIRED NOTICES.....................................................14
6. CURE BY MORTGAGEE....................................................14
7. CHANGE IN LAWS.......................................................15
8. RETENTION OF COUNSEL.................................................15
9. EVENTS OF DEFAULT....................................................15
10. REMEDIES.............................................................16
11. RIGHTS AND REMEDIES CUMULATIVE.......................................18
12. POSSESSION BY MORTGAGEE..............................................19
13. WAIVERS..............................................................19
14. CONDEMNATION.........................................................20
15. SECURITY AGREEMENT...................................................21
16. FURTHER ASSURANCES...................................................22
17. NO OFFSET............................................................22
18. MISCELLANEOUS PROVISIONS.............................................23
19. ENVIRONMENTAL MATTERS................................................25
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SCHEDULE OF EXHIBITS
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Exhibit A: Legal Description of Mortgaged Premises
MORTGAGE AND SECURITY AGREEMENT
THIS IS A MORTGAGE UNDER __________________________ WHICH
SECURES, AMONG OTHER THINGS, FUTURE ADVANCES.
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is made
as of this _________ day of ____________ , 1998, by and between , a
_________________ with offices at ("Mortgagor"), and ELDERTRUST OPERATING
LIMITED PARTNERSHIP, a Delaware limited partnership with offices at 000 XxXxxxxx
Xxxx, Xxxxx 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 (together with its successors
and assigns, "Mortgagee").
BACKGROUND
WHEREAS, Xxxxxxxxx and Mortgagee have entered into that
certain Construction Loan Agreement, dated as of the date hereof (as modified,
renewed, extended, amended, supplemented and/or assigned from time to time, the
"Loan Agreement"), the terms of which are incorporated herein by reference,
pursuant to which the Mortgagee has agreed to make a loan (the "Loan") to the
Mortgagor;
WHEREAS, in connection with the Loan Agreement, Xxxxxxxxx has
executed and delivered a Secured Note (as modified, renewed, extended, amended,
supplemented and/or assigned from time to time, the "Note"), dated as of the
date hereof, payable to the order of Mortgagor as holder in the principal amount
of $___________;
WHEREAS, as a condition of making the Loan to Mortgagor,
Mortgagee has required Xxxxxxxxx to execute and deliver this Mortgage;
WHEREAS, as additional security for the obligations secured
hereby, Xxxxxxxxx has executed and delivered (or caused to be executed and
delivered) to Mortgagee: (a) an Assignment of Rents and Leases assigning, among
other things, all of Mortgagor's rights under all Residential Living Agreements
(as defined in the Loan Agreement) as well as all other rents and income
relating to or affecting the Mortgaged Premises (as defined herein) now or
hereafter in effect (the "Assignment of Leases"); (b) an Assignment of
Agreements Affecting Real Estate by Mortgagor in favor of Mortgagee (the
"Assignment of Agreements"); (c) a Guaranty and Suretyship Agreement by Genesis
Health Ventures, Inc., an affiliate of Mortgagor, in favor of Mortgagee (the
"Guaranty"); and (d) other documents given or to be given as security for the
indebtedness evidenced by the Note;
WHEREAS, this Mortgage, together with the Loan Agreement, the
Note, Assignment of Leases, Assignment of Agreements, the Guaranty and all other
documents executed in connection therewith and herewith, as the same may be
modified, renewed, extended, amended, supplemented and/or assigned from time to
time, are sometimes collectively referred to herein as the "Loan Documents" or
individually as a "Loan Document";
WHEREAS, the principal balance of the Note, together with
interest thereon and all other sums payable thereunder or under the Loan
Document or secured by the Loan Documents, is herein collectively referred to as
the "Indebtedness"; and
WHEREAS, capitalized terms used but not otherwise defined
herein shall have the meaning set forth in the Loan Agreement.
CONVEYANCE
NOW, THEREFORE, Xxxxxxxxx, in consideration of the
Indebtedness, and to secure payment of the same, with interest and in accordance
with the terms and conditions of the Loan Documents, and for performance of the
agreements, conditions, covenants, provisions and stipulations contained herein
and therein (the "Obligations"), has granted, bargained, sold, released and
conveyed and by these presents hereby does grant, bargain, sell, release and
convey unto Mortgagee, its successors and assigns, the real property located in
_______________________, as described in Exhibit A attached hereto and
incorporated herein by reference (the "Real Estate");
TOGETHER WITH all of Xxxxxxxxx's right, title and interest now
owned or hereafter acquired in all buildings and improvements erected or
hereafter erected on the Real Estate (the "Improvements");
AND TOGETHER WITH all of Mortgagor's right, title and interest
now owned or hereafter acquired, in or to (a) all furnishings, fixtures,
machinery, equipment and other articles of property of every nature whatsoever,
whether or not real property, now or at any time hereafter installed in,
attached to or situated in or upon, or used, useful, or intended to be used in
connection with or in the operation or maintenance of, the Real Estate or the
Improvements, or in the operation of any Improvements, plant or business now or
hereafter situate thereon, which shall include, but not be limited to, all
lighting, heating, ventilating, security, air conditioning, sprinkling and
plumbing equipment, fixtures and systems, irrigation, water and power systems
and fixtures, engines and machinery, boilers, gas and electric fixtures,
radiators, heaters, ranges, furnaces, oil burners or units thereof, elevators
and motors, refrigeration plants or units, communication systems, dynamos,
transformers, generators, electrical equipment, storm and screen windows,
shutters, doors, decorations, awnings, shades, blinds and signs, and trees,
shrubbery and other plantings; (b) all furnishings, furniture, appliances,
supplies, tools, accessories and operating inventory now or hereafter located on
the Real Estate; (c) all building materials, fixtures, building machinery and
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building equipment delivered on site to the Real Estate or any portion thereof
during the course of, or in connection with the construction of, or
reconstruction of, or remodeling of any Improvements, from time to time during
the term hereof; (d) all parts, fittings, accessories, accessions, substitutions
and replacements therefor and thereof; and (e) all proceeds from the sale,
transfer or other disposition of any of the foregoing, whether voluntary or
involuntary, and all proceeds of the conversion of any of the foregoing into
cash or liquidated claims, including without limitation, proceeds of insurance
and condemnation awards (collectively, the "Related Property");
AND TOGETHER WITH all and singular the tenements,
hereditaments and appurtenances belonging to the Real Estate or any part
thereof, hereby mortgaged or intended so to be, or in anywise appertaining
thereto (including, without limitation, all rents, issues, income and profits
arising therefrom); all streets, alleys, passages, ways, watercourses; all other
rights, liberties, easements, covenants and privileges of whatsoever kind or
character; the reversions and remainders; and all the estate, right, title,
interest, property, possession, claim and demand whatsoever, as well at law as
in equity, of Mortgagor, in and to all of the foregoing or any or every part
thereof, and all of the estate, right, title and interest of Mortgagor in and to
each and every existing and future Residential Living Agreement and lease with
respect to all or any portion of the Real Estate, including, without limitation,
all rents, issues, income and profits arising therefrom (collectively the
"Appurtenances"). All of the Real Estate, Improvements, Related Property and the
Appurtenances, are collectively referred to herein as the "Mortgaged Premises".
TO HAVE AND TO HOLD the Mortgaged Premises hereby granted and
conveyed, or mentioned and intended to be so granted and conveyed, with the
appurtenances, unto Mortgagee, forever.
AS INDEPENDENT AND SEPARATE SECURITY for the payment of the
Indebtedness and performance of the Obligations, Mortgagor hereby grants to
Mortgagee as security interest in and lien upon and hereby assigns to Mortgagee
the following (collectively, the "Collateral"): (a) all property included in the
Mortgaged Premises which might otherwise be deemed "personal property" and the
"proceeds" thereof (as defined in the Uniform Commercial Code as in effect from
time to time in the _____________________ (the "UCC")), including, without
limitation, fixtures, furnishings, furniture, equipment, appliances, machinery,
supplies, tools, accessories and operating inventory thereof, (b) all
Residential Living Agreements and leases, whether now in existence or hereafter
created, together with all rents, issues, income and profits due and to become
due thereunder and deposits and other payments made in respect thereof and, upon
the occurrence of an Event of Default (as hereinafter defined), confers upon
Mortgagee the power to enter upon and take possession of the Mortgaged Premises
and to rent the same, either in its own name or in the name of Xxxxxxxxx, and to
receive the rents, issues, income and profits and to apply the same to the
payment of interest, principal, taxes, insurance premiums, repairs, alterations,
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improvements and other expenses in such order of priority as Mortgagee shall
determine, but such collection of rents, issues, income and profits shall not
operate as an affirmance of any resident, tenant, Residential Living Agreement,
lease or sublease in the event that title to all or any part of the Mortgaged
Premises should be acquired by Mortgagee or any other purchaser at a foreclosure
sale or otherwise, (c) all Accounts (as defined in the UCC), agreements of sale,
contract rights, accounts receivable and business records relating to the
Mortgaged Premises, together with all deposits and other payments made in
respect thereof, and (d) all of Mortgagor's right, title and interest in and to
all insurance policies, proceeds of insurance policies and condemnation proceeds
applicable to all or any part of the Mortgaged Premises, regardless of who
maintains such insurance, including but not limited to Mortgagor or any resident
or tenant of the Mortgaged Premises.
ADDITIONAL PROVISIONS
1. Representations, Warranties and Covenants. Xxxxxxxxx
represents, covenants, warrants and agrees to and with Mortgagee, as follows:
(a) Title; Power. Mortgagor has good and marketable fee
simple title to the Mortgaged Premises, to all rents, issues, income and profits
therefrom and to the Collateral, and has the right, full power and lawful
authority to grant, convey and assign the same to Mortgagee in the manner and
form set forth herein. The Mortgaged Premises and the Collateral are free and
clear of all liens, encumbrances and other charges whatsoever, excepting only
those items expressly excepted from the coverage of the ALTA Loan Policy of
Title Insurance issued and dated as of the date hereof by Commonwealth Land
Title Insurance Company to, and approved by, Mortgagee (the "Permitted
Exceptions"). Mortgagor hereby grants Mortgagee, its successors and assigns, the
right of quiet enjoyment and possession of the Mortgaged Premises, and Mortgagor
shall defend as to all of the Mortgaged Premises the title of Mortgagee hereby
created.
(b) Compliance. Except as would not have a material
adverse effect on Mortgagor or the Mortgaged Premises, Mortgagor shall duly
observe, conform, obey and comply with, or shall cause due observation,
conformance, obedience and compliance with, all Legal Requirements (as defined
in the Loan Agreement) affecting all or any part of the Mortgaged Premises or
the occupancy thereof, the business or operations now or hereafter conducted
thereon or the Collateral, and Mortgagor will comply and will ensure that the
Mortgaged Premises and the Collateral hereafter continuously complies with all
applicable environmental and other Legal Requirements; provided, however, that
if Mortgagor in good faith and by appropriate legal action contests the validity
or application of any such Legal Requirement, then Xxxxxxxxx's failure to comply
with any such Legal Requirement, shall not be an Event of Default so long as the
contest (i) operates to prevent enforcement thereof or the potential sale,
forfeiture or loss of the Mortgaged Premises, (ii) does not interfere with the
development, use, occupancy or operations of the Mortgaged Premises, the rent,
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fees and/or charges payable by residents of the Mortgaged Premises and the
timely payment of all sums due hereunder, and (iii) is maintained and prosecuted
with diligence and has not been terminated or discontinued adversely to
Mortgagor.
(c) Payment and Performance. Mortgagor shall pay to
Mortgagee, in accordance with the terms of the Note, the Loan Agreement and this
Mortgage, all the Indebtedness, and shall perform and comply with all of the
Obligations.
(d) Taxes and Other Charges. Mortgagor shall promptly pay
or cause to be paid when due and payable and before interest or penalties shall
accrue thereon, without any deduction, defalcation or abatement, all taxes,
assessments, water and sewer rents and all other charges or claims which may be
assessed, levied or filed at any time against Mortgagor, the Mortgaged Premises,
the Collateral or any part thereof or against the interest of Mortgagee therein,
or which by any present or future law may have priority over the indebtedness
secured hereby either in lien or in distribution out of the proceeds of any
judicial sale. Xxxxxxxxx, if and as requested by Mortgagee, shall produce to
Mortgagee, not later than ten (10) days prior to the dates when any of the same
shall commence to bear interest or penalties, receipts for the payment thereof.
Notwithstanding the foregoing, if Mortgagor in good faith and by appropriate
legal action shall contest the validity or application of any such item or the
amount thereof and, at the option of Mortgagee, shall have established on its
books or by deposit of cash with Mortgagee a reserve for the payment thereof in
such amount as Mortgagee may require, and Mortgagee has consented in writing to
such action, then Mortgagor shall not be required to pay the item or to produce
the required receipts while the reserve is maintained and so long as the contest
operates to prevent collection, to stay any proceedings which may be instituted
to enforce payment of such item and to prevent a sale of the Mortgaged Premises
or the Collateral to pay such item (unless required by law as a condition of
such contest), such contest is maintained and prosecuted with diligence, and
shall not have been terminated or discontinued adversely to Mortgagor. Mortgagor
shall not apply for or claim any deduction, by reason of this Mortgage, from the
taxable value of all or any part of the Mortgaged Premises or the Collateral. It
is expressly agreed that no credit shall be claimed or allowed on the interest
payable on the Note because of any taxes or other charges paid.
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(e) Insurance.
(i) Mortgagor shall, from and after the date hereof
and at all times while this Mortgage is in force or the Note remains
outstanding, maintain at Mortgagor's expense insurance in amounts, with
deductibles and with companies satisfactory to Mortgagee. Without limiting the
generality of the foregoing, Mortgagor shall maintain the following minimum
coverages and shall not carry separate insurance, concurrent in kind or form,
unless otherwise agreed to in writing by Mortgagee:
(A) insurance which complies with the
workers' compensation and employers' liability laws of all states in which
Mortgagor shall have employees;
(B) comprehensive general liability
insurance covering all operations of Mortgagor and with a combined single limit
of not less than $3,000,000.00 per occurrence for bodily injury (including
death) and property damage;
(C) during the course of any construction,
reconstruction, remodeling or repair of Improvements, builders' all-risk
extended coverage insurance in amounts based upon the replacement value of the
improvements (excluding roads, foundations, parking areas, paths, walkways and
like improvements), including coverage for loss of contents and endorsed to
provide that occupancy by any person shall not void such coverage;
(D) following completion of construction and
prior to occupancy by any person, fire, extended coverage, vandalism and
malicious mischief insurance in an amount equal to the replacement value of the
Improvements, including coverage for loss of contents owned by Mortgagor (but
excluding the costs of all excavations and foundations and footings below the
lowest basement floor), but in no event less than the outstanding principal
amount of the Note, which policy shall contain a replacement cost endorsement;
(E) automobile liability insurance covering
all owned, non-owned and hired vehicles used by Xxxxxxxxx in the conduct of its
business, with a combined single limit for bodily injury (including death) and
property damage of not less than $1,000,000.00 per occurrence;
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(F) umbrella liability insurance concurrent
with the coverages named in subparagraphs (B), (C), (D) and (E) of this
Paragraph 1(e)(i), in an amount not less than $5,000,000.00;
(G) if the Mortgaged Premises is in an area
designated by the Secretary of Housing and Urban Development as having special
flood hazards, flood insurance on the improvements on the Mortgaged Premises and
any and all personal property used or to be used in connection therewith;
(H) following completion of construction and
prior to occupancy by any resident, business interruption insurance and/or "loss
of rental value" insurance, as appropriate, for a period of twelve (12) months
in an amount equal to the gross income from the Mortgaged Premises for a period
of twelve (12) months, as determined from time to time to be reasonably
satisfactory to Mortgagee; and
(I) such other insurance, and in such
amounts, as reasonably required by Mortgagee from time to time.
(ii) Upon execution hereof, Xxxxxxxxx shall furnish
to Mortgagee duplicate copies of such policies of insurance or certificates of
Mortgagor's insurance agent certifying to the insurance required and including
photocopies of all policies certified by such agent to be true and correct, in
each case specifying the expiration date. Not less than thirty (30) days prior
to the expiration of any such coverage, Xxxxxxxxx shall deliver to Mortgagee a
duplicate policy or certificate evidencing the renewal of such coverage and the
payment of all premiums.
(iii) The liability insurance policies required under
subparagraphs (B) and (F) shall name Mortgagee as an additional insured and the
policies required under subparagraphs (C), (D) and (G) shall name Mortgagee as
mortgagee under a standard mortgagee clause. The policy required under
subparagraph (H) shall name Mortgagee as loss payee under a loss payable
endorsement. All policies shall be issued by and maintained with companies
acceptable to Mortgagee.
(iv) Each insurance policy shall be on a nonreporting
and noncontributing form basis and shall contain a provision (A) requiring the
insured to notify Mortgagee, in writing and at least thirty (30) days in
advance, of any cancellation or material change in the policy, (B) stating that
any loss otherwise payable thereunder shall be payable to Mortgagee
notwithstanding any act or neglect of the insureds and notwithstanding the
occupation or use of the Mortgaged Premises for purposes more hazardous than
permitted by the terms of such policy, any change in title to or ownership of
the Mortgaged Premises, or any provision of the policy relieving the insurer
thereunder of liability for any loss by reason of the existence of other
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policies of insurance covering the Mortgaged Premises against the peril
involved, whether or not collectible, and (C) excluding Mortgagee from the
operation of any coinsurance clause.
(v) If the insurance, or any part thereof, shall
expire, or be withdrawn, or become void or unsafe, in the opinion of Mortgagee,
by reason of Mortgagor's breach of any condition thereof, or by reason of the
failure or impairment of the capital of any company in which the insurance shall
be carried, or if for any reason whatsoever the insurance shall be
unsatisfactory to Mortgagee, Mortgagor shall place new insurance on the
Mortgaged Premises satisfactory to Mortgagee.
(vi) In the event of loss to all or any portion of
the Mortgaged Premises, Mortgagor shall give immediate written and oral notice
thereof to Mortgagee, and Mortgagee may make proof of loss if not made promptly
by Xxxxxxxxx; provided, however, that any adjustment of proof of loss shall
require the prior written consent of Mortgagee. Each insurance company concerned
is hereby authorized and directed to make payment under such insurance,
including return of unearned premiums, to Mortgagee instead of to Mortgagor and
Mortgagee jointly, and Mortgagor irrevocably appoints Mortgagee as Xxxxxxxxx's
attorney-in-fact to endorse any draft thereof, which appointment, being for
security, is coupled with an interest and is irrevocable.
(vii) All policies of insurance required hereunder
and all renewals thereof are hereby assigned to Mortgagee as additional security
for payment of the indebtedness hereby secured and Xxxxxxxxx hereby agrees that,
if an Event of Default hereunder shall have occurred and be continuing, any
amounts available thereunder upon cancellation or termination of any of such
policies or renewals, whether in the form of return of premiums or otherwise,
shall be payable to Mortgagee as assignee thereof. If Mortgagee becomes the
owner of the Mortgaged Premises, or any part thereof, by foreclosure, deed in
lieu thereof, or otherwise, such policies, including all right, title and
interest of Mortgagor thereunder, shall become the absolute property of
Mortgagee.
(viii) Mortgagee shall have the right to retain and
apply the proceeds of any such insurance, at its sole election, to reduction of
the indebtedness secured hereby, or to require Mortgagor to restore or repair
the damaged portion of the Mortgaged Premises. If Mortgagee elects to require
Mortgagor to restore or repair the damaged portion of the Mortgaged Premises,
such restoration and repair shall be in accordance with plans and specifications
approved by Mortgagee, and the proceeds therefor shall be disbursed by Mortgagee
to Mortgagor only in accordance with the terms and conditions of the Loan
Agreement applicable to the disbursement of loan proceeds as if such loan
proceeds were loan advances thereunder. Notwithstanding anything contained in
the foregoing to the contrary, (A) provided no Event of Default then exists and
(B) Mortgagee in its reasonable judgment is satisfied that there are sufficient
net proceeds to complete restoration of the building(s) and improvements on the
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Real Estate to substantially the same value, condition and character as existed
prior to such damage within the term of the Note (or, in the case of any
deficiency, Mortgagor shall have deposited with Mortgagee an amount equal to
such deficiency), Mortgagee shall allow the insurance proceeds to be used for
restoration of the Mortgaged Premises, such proceeds to be disbursed from time
to time as restoration progresses in accordance with the terms and conditions of
the Loan Agreement applicable to the disbursement of loan proceeds.
(f) Insurance and Tax Escrows. Upon the occurrence and
during the continuance of an Event of Default, Mortgagor, at the request of
Mortgagee, agrees to pay to Mortgagee, in addition to and at the time of the
required payments of Indebtedness, and commencing with the first payment due
after the date of such request, a sum equal to the premiums which will next
become due on the insurance policies required by this Mortgage, plus taxes,
water and sewer rents and assessments next due on the Mortgaged Premises (all as
estimated by Mortgagee) together with any sums due for special assessments,
charges or claims and any other item which at any time may be or become a lien
upon the Mortgaged Premises prior to the lien of this Mortgage, less all sums
already paid therefor or deposited with Mortgagee for the payment thereof,
divided by the number of payments to become due before one (1) month prior to
the date when such premiums, taxes, assessments and other charges will become
due, such sums to be held by Mortgagee, without interest, to pay such premiums,
taxes and assessments when due. If the amount of such deposits shall exceed
payments made by Mortgagee for such premiums, taxes and assessments, the excess
shall be credited on account of subsequent deposits to be made by Mortgagor. If
such deposits shall be insufficient to pay such insurance premiums, taxes and
assessments when due, Mortgagor shall pay to Mortgagee the amount of the
deficiency no later than the first day of the month following determination of
the deficiency. No amount so paid shall be deemed to be trust funds but may be
commingled with general funds of Mortgagee, and no interest shall be paid to
Mortgagor on such funds. If, pursuant to any provision of the Note, the Loan
Agreement or this Mortgage, the whole amount of the principal debt secured
hereby becomes due and payable, Mortgagee shall have the right, at its sole
election, to apply any amount so held against the entire Indebtedness.
(g) Waste; Maintenance; Alterations; Compliance. Mortgagor
shall (i) abstain from and shall not permit the commission of waste in or about
the Mortgaged Premises, (ii) maintain the Mortgaged Premises and the Collateral
in good order and condition, reasonable wear and tear excepted, and, except with
respect to any undeveloped portion thereof, in a rentable and tenantable state
of repair, (iii) make or cause to be made, as and when necessary, all repairs
and replacements, structural and non-structural, exterior and interior, ordinary
and extraordinary, foreseen and unforeseen, whether or not the same may be
necessary by reason of fire or other casualty and whether or not insurance
proceeds are available therefor, (iv) not remove or demolish the buildings or
other Improvements now or hereafter erected upon the Real Estate, nor alter the
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design or structural character of any building or other Improvement now or
hereafter erected thereon so as to diminish the value thereof, unless Mortgagee
shall first consent thereto in writing (other than such renovations and
construction as is permitted and required by the Loan Agreement) and (v) comply
with all Legal Requirements and all licenses, permits, approvals and
restrictions affecting the Mortgaged Premises and the Collateral, including,
without limitation, deed restrictions.
(h) Residential Living Agreements.
(i) Mortgagor shall timely perform all of its
obligations under the terms and conditions of all Residential Living Agreements
affecting the Mortgaged Premises and expressly covenants that it shall not
accept rent, fees or charges therefor in advance for a period of more than one
(1) month.
(ii) Mortgagor represents that there are no
Residential Living Agreements, leases or agreements to lease all or any part of
the Real Estate now in effect, except those specifically set forth in the
Assignment of Leases, and assigned to Mortgagee hereunder and by the Assignment
of Leases. Mortgagor shall execute, acknowledge and deliver to Mortgagee
assignments of all future Residential Living Agreements and leases of all or any
portion of the Real Estate in form and substance satisfactory to Mortgagee and
shall at the request of Mortgagee, at Xxxxxxxxx's expense, record assignments
thereof.
(iii) There is no assignment or pledge of any rents,
issues, income and profits of or from the Mortgaged Premises or the Collateral
now in effect, except pursuant to the Assignment of Leases. Mortgagor shall not
make any assignment or pledge thereof to anyone other than Mortgagee until the
Indebtedness is fully irrevocably and indefeasibly paid and this instrument is
canceled.
(iv) No existing or future Residential Living
Agreement or lease shall be altered or modified to materially reduce the fee
payable thereunder without the prior written consent of Mortgagee.
(i) No Transfer; No Other Liens.
(i) Without the prior written consent of
Mortgagee, Mortgagor shall abstain from and shall not cause or permit any
conveyance, transfer or other disposition of title to, or an equitable interest
in, the Mortgaged Premises, the Collateral or any part thereof (other than by
execution on the Note or foreclosure under the Loan Agreement or this Mortgage)
voluntarily or by operation of law or any agreement to do any of the foregoing
(including but not limited to an installment sale contract) except to an
Affiliate of Mortgagor. If Mortgagor is a corporation, a transfer of any stock
of Mortgagor shall be deemed to violate this prohibition on transfers; if
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Mortgagor is a partnership, a transfer of any partnership interest in Mortgagor
shall be deemed to violate this prohibition on transfer; and if Mortgagor is a
limited liability company, a transfer of any membership interest in Mortgagor
shall be deemed to violate this prohibition on transfer. A consent by Mortgagee
to one such transfer or disposition shall not be construed as continuing or as a
bar to or waiver of the requirement the Mortgagor obtain the prior written
consent of Mortgagee to any other subsequent transfer or disposition.
(ii) Without the prior written consent of
Mortgagee, Mortgagor shall not lease any personal property, as lessee, which is
now or hereafter intended to be a part of the Mortgaged Premises or the
Collateral or is necessary for the operation of Mortgagor's business at the
Mortgaged Premises or the Collateral, or create or cause or permit to exist any
lien on, or security interest in the Mortgaged Premises or Collateral, including
any furniture, fixtures, appliances, equipment, funds or other items of personal
property which are intended to be or become part of the Mortgaged Premises or
the Collateral.
(iii) Mortgagor shall not, without the prior
written consent of Mortgagee, create or cause or permit to exist (voluntarily or
involuntarily) any lien (other than the lien of this Mortgage), encumbrance or
charge on, or security interest in, all or any part of the Mortgaged Premises or
the Collateral, excepting only the Permitted Exceptions and any such interest
existing at law for real estate taxes which are not yet due and payable. If any
such lien or encumbrance is filed or entered, Mortgagor shall cause it to be
removed of record within fifteen (15) days after it is filed or entered by
either paying it, having it bonded in a manner which removes it of record or
otherwise having it removed of record. By placing or accepting a mortgage, lien
or encumbrance of any type, whether voluntary or involuntary, against the
Mortgaged Premises, the holder thereof shall be deemed to have agreed, without
any further act or documentation being required, that its mortgage, lien, or
encumbrance shall be subordinate in lien priority to this Mortgage and to any
future amendments, consolidations or extensions to this Mortgage (including,
without limitation, amendments which increase the interest rate on the Note,
provide for future advances secured by this Mortgage or provide for the release
of portions of the additional Mortgaged Premises or the Collateral with or
without consideration).
(iv) The provision of this Paragraph 1(i)
shall be deemed notice to the holder of any subordinate mortgage or other
mortgage or lien, whether or not consented to by Mortgagee, that it has been
deemed to have waived and relinquishes any rights which it may have, whether
under a legal theory of marshaling of assets or any other theory at law or in
equity, to restrain Mortgagee from, or recover damages from Mortgagee as a
result of, Mortgagee's exercising its various remedies hereunder and under any
other documents or instruments evidencing or securing the indebtedness secured
hereby, in such order and with such timing as Mortgagee shall deem appropriate
in its sole and absolute discretion.
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(v) Mortgagee may, at any time or from time
to time, renew, extend or increase the amount of this Mortgage, or alter or
modify the terms of this Mortgage or the Note in any way, or waive any of the
terms, covenants or conditions hereof or of the Note in whole or in part and may
release any portion of the Mortgaged Premises, the Collateral or any other
security, and grant such extensions and indulgences in relation to the
indebtedness secured hereby as the Mortgagee may determine, without the consent
of any junior lienor or encumbrancer and without any obligation to give notice
of any kind thereto and without in any manner affecting the priority or the lien
hereof on all or any part of the Mortgaged Premises or the Collateral.
2. Assignment of Leases and Rents.
Mortgagor hereby absolutely and presently conveys,
transfers and assigns to Mortgagee all Leases and Rents. It is the intention of
Xxxxxxxxx that the foregoing assignment constitute a present, absolute
assignment of the Leases and Rents and not an assignment for additional security
only, which gives Mortgagee the present right to collect the rents and apply the
Rents in partial payment of the Note. Xxxxxxxxx intends that the Leases and
Rents be absolutely irrevocably and unconditionally assigned and that they no
longer be property of Mortgagor or property of the estate of Mortgagor, as
defined in 11 X.X.X.xx. 541. If any law exists requiring Mortgagee to take
actual possession of the Mortgaged Premises or the Collateral (or some action
equivalent to taking possession of the Mortgaged Premises or the Collateral,
such as securing the appointment of a receiver) in order for Mortgagee to
"perfect" or "activate" the right and remedies of Mortgagee, Mortgagor waives
the benefit of such law. Subject to the terms of this Mortgage and the
Assignment of Leases, Mortgagee grants to Mortgagor a license, revocable, as
hereinafter provided, to collect and use the Rents subject to the requirements
of this Mortgage and the Assignment of Leases. Upon the occurrence of any Event
of Default (as defined below), the license granted to Mortgagor herein shall, at
Mortgagee's election, be revoked by Mortgagee, and Mortgagee shall immediately
be entitled to possession of all Rents collected thereafter (including Rents
past due and unpaid) whether or not Mortgagee enters upon or takes control of
the Mortgaged Premises. Upon such a revocation of the license granted herein,
Mortgagee promptly shall provide Mortgagor with written notice of same. Any
Rents collected by Xxxxxxxxx from and after the date on which an Event of
Default occurred shall be held by Mortgagor in trust for Mortgagee. Mortgagee is
hereby granted and assigned by Xxxxxxxxx the right, at its option, upon
revocation of the license granted herein, to enter upon the Mortgaged Premises
in person, by agent or by court appointed receiver to collect the Rents.
3. Declaration of No Set-Off. If requested at any time by
Mortgagee, Mortgagor shall promptly (and in any event within ten (10) days after
Mortgagee's request) furnish Mortgagee or Mortgagee's designee with a
declaration of no set-off, in form and substance satisfactory to Mortgagee or
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any such designee, certifying, in a writing duly acknowledged, the amount of
principal, interest and other charges then owing under the Loan Documents, and
whether there are any set-offs or defenses against the same, and, if so, the
nature and amount thereof.
4. Inspection. Mortgagee and any persons authorized by
Mortgagee shall have the right at any time, upon notice to Mortgagor, to enter
upon the Mortgaged Premises during normal business hours to inspect and
photograph the condition and state of repair of the Mortgaged Premises and the
Collateral.
5. Required Notices. Mortgagor shall notify Mortgagee promptly
of the occurrence of any of the following: (a) a fire or other casualty causing
damage to the Mortgaged Premises or the Collateral; (b) receipt of notice of
eminent domain proceedings or condemnation of all or any portion of the Real
Estate; (c) receipt of notice from any governmental authority relating to the
structure, use, operation or occupancy of the Mortgaged Premises; (d) receipt of
any notice with regard to any Hazardous Discharge (as hereinafter defined) or
any other environmental matter affecting the Mortgaged Premises or Mortgagor's
interest therein, including a Release (as hereinafter defined) of any Hazardous
Substance, request for information, demand letter or notification of potential
liability from any entity relating to potential responsibility for investigation
or clean-up of Hazardous Substances on the Mortgaged Premises or any other site
owned or operated by Mortgagor; (e) substantial change in the occupancy,
operation or use of any portion of the Mortgaged Premises or the Collateral; (f)
receipt of any notice of the imposition of, or of threatened or actual execution
on, any lien on, or security interest in, the Mortgaged Premises; (g)
commencement of any litigation or notice of any threat of litigation affecting
the Mortgaged Premises or the Collateral; or (h) receipt of any notice from any
resident at the Mortgaged Premises alleging a default, failure to perform or any
right to terminate its Residential Living Agreement or to set-off rents, fees
and/or charges.
6. Cure by Mortgagee. If Mortgagor at any time fails to pay
any claim, lien or encumbrance which shall be prior to this Mortgage, or fails
to respond promptly to a Release or threat of Release (as hereinafter defined)
of a hazardous, toxic or polluting substance or waste including petroleum or
petroleum products ("Hazardous Substances"), or an Environmental Complaint (as
hereinafter defined), or fails to diligently and expeditiously complete actions
necessary to comply with applicable Legal Requirements, or to any notice
described in Paragraph 5(d) or Paragraph 19(b) hereof, or to pay when due any
tax or assessment or any insurance premium, or to keep the Mortgaged Premises in
repair, or to replace or restore as required hereby, or shall commit or permit
waste, or if there be commenced any action or proceeding affecting the Mortgaged
Premises, the Collateral or the title thereto, Mortgagee, at its option, may pay
such claim, lien, encumbrance, tax, assessment or premium, with right of
subrogation thereunder, may procure such abstracts or other evidence of title as
it deems necessary, may make such cleanup, repairs, replacements or restorations
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and take such steps as it deems advisable to prevent or cure such failure, and
may appear in any such action therein as Mortgagee deems advisable, and for any
of such purposes Mortgagee may advance such sums of money as it deems necessary
to carry out the foregoing (but in no event shall Mortgagee be under any
obligation to do any of the foregoing or to advance any such sums). Mortgagor
shall pay to Mortgagee immediately and without demand all sums of money advanced
by Mortgagee pursuant to this Paragraph 6, together with interest on each
advance at the Default Rate, as defined in the Note, and all such sums and
interest thereon shall be secured hereby.
7. Change in Laws. In the event of the passage, after the date
of this Mortgage, of any law deducting from the value of lands, for the purpose
of taxation, any lien thereon, or imposing upon Mortgagee the obligation to pay
the whole, or any part, of the taxes, assessments, charges or liens herein
required to be paid by Xxxxxxxxx, the entire unpaid balance of the indebtedness
secured by this Mortgage shall, at the option of Mortgagee and after sixty (60)
days notice to Mortgagor, become due and payable; provided, however, that if
Mortgagee requests that Mortgagor pay such taxes, assessments, charges or liens,
or to reimburse Mortgagee therefor, and Xxxxxxxxx lawfully makes payment thereof
or reimburses Mortgagee therefor, then there shall be no such acceleration of
the time for payment of the unpaid balance of the Indebtedness.
8. Retention of Counsel. If Mortgagee retains the services of
counsel by reason of a claim of a default or an Event of Default hereunder or
under the other Loan Documents, or on account of any matter involving
Xxxxxxxxx's title to the Mortgaged Premises, the Collateral or the security
interest intended to be granted hereby, including, without limitation, review of
easements, amendments to the Loan Documents, other related agreements or
documents, any condemnation proceedings, bankruptcy proceedings, or proceedings
involving defects in title which are not covered by Mortgagee's title insurance
policy, or for examination of matters subject to Mortgagee's approval under the
Loan Documents, all costs of suit, if any, and all reasonable attorneys' fees
shall forthwith become due and payable and shall be secured hereby. If Mortgagee
shall institute legal proceedings to foreclose this Mortgage or enter judgment
on the Note, Mortgagor shall pay all expenses, including attorneys' fees as
herein provided and court costs, of Mortgagee in connection with all such
proceedings, whether or not otherwise legally chargeable to Mortgagor, together
with interest at [the higher of the judgment rate or] the Default Rate (as
defined in the Note) until actual payment is made of the full amount due
Mortgagee, and all such sums shall be secured hereby.
9. Events of Default. Each of the following shall constitute
an event of default ("Event of Default") hereunder:
(a) The occurrence of any Event of Default under and as
defined in the Loan Agreement, Note or any other Loan Document.
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(b) The failure of Mortgagor to perform any term, covenant
or agreement in this Mortgage.
(c) Any representation or warranty of Mortgagor hereunder
shall have been untrue or incorrect in any material respect.
(d) Xxxxxxxxx's delivery to Mortgagee of a notice under 42
Pa.C.S.A. ss.8143(c) or if any third party provides notice to Mortgagee under 42
Pa.C.S.A. ss.8143(b) and the effect of such notice is to materially impair
Mortgagee's interest in the Mortgaged Premises or the Collateral.
10. Remedies.
(a) Acceleration. Upon the occurrence of any Event of
Default, the Indebtedness shall become immediately due and payable, at the
option of Mortgagee, without further notice or demand.
(b) Remedies. When the entire indebtedness evidenced by
the Note shall become due and payable, either because of maturity or because of
the occurrence of any Event of Default, or otherwise, then Mortgagee may
exercise the following remedies as well as any and all other remedies available
at law:
(i) Mortgagee may institute any one or more actions
of mortgage foreclosure against all of any part of the Mortgaged Premises or the
Collateral, or take such other action at law or in equity for the enforcement of
this Mortgage and realization on the security herein or elsewhere provided for,
as the law may allow, and may proceed therein to final judgment and execution
for the entire unpaid balance of the principal debt, with interest at the
Interest Rate defined in the Note to the date of default, and thereafter at the
Default Rate, together with all other sums due by Mortgagor in accordance with
the provisions of the Note and this Mortgage, including all sums which may have
been loaned by Mortgagee to Mortgagor after the date of this Mortgage, and all
sums which may have been advanced by Mortgagee for taxes, water or sewer rents,
charges or claims, payments on prior liens, insurance, utilities or repairs to
the Mortgaged Premises, all costs of suit, together with interest at the Default
Rate defined in the Note on any judgment obtained by Mortgagee from and after
the date of any Sheriff or other judicial sale until actual payment is made of
the full amount due Mortgagee, and reasonable attorneys' fees and expenses; and
(ii) Mortgagee may enter into possession of the
Mortgaged Premises and the Collateral, with or without legal action, and by
force if necessary; collect therefrom all rentals (which term shall also include
sums payable for use and occupation under all Residential Living Agreements)
and, after deducting all costs of collection and administration expense, apply
the net rentals to any one or more of the following items in such manner and in
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such order of priority as Mortgagee, in Mortgagee's sole discretion, may elect:
the payment of any sums due under any prior lien, taxes, water and sewer rents,
charges and claims, insurance premiums and all other carrying charges, and to
the maintenance, repair or restoration of the Mortgaged Premises, and on account
and in reduction of the principal and interest, or both, hereby secured; in and
for that purpose Mortgagor hereby assigns to Mortgagee all rentals due and to
become due under any lease or leases or rights to use and occupation of the
Mortgaged Premises hereafter created, as well as all rights and remedies
provided in such lease or leases or at law or in equity for the collection of
the rentals.
(c) Right to Recover. Mortgagee shall have the right,
from time to time, to bring an appropriate action to recover any sums required
to be paid by Xxxxxxxxx under the terms of this Mortgage, as they become due,
without regard to whether or not the Indebtedness shall be due, and without
prejudice to the right of Mortgagee thereafter to bring an action of mortgage
foreclosure, or any other action, for any default by Mortgagor existing at the
time the earlier action was commenced.
(d) Sale. Any real estate sold pursuant to any writ
of execution issued on a judgment obtained by virtue of the Note or this
Mortgage, or pursuant to any other judicial proceedings under the Mortgage, may
be sold in one parcel, as an entirety, or in such parcels, and in such manner or
order as Mortgagee, in its sole discretion, may elect.
(e) Appointment of Receiver. Mortgagee shall have the
absolute and unconditional right to have a receiver appointed for the Mortgaged
Premises and the Collateral. Such appointment may be made either before or after
sale, without notice, without the need to establish waste or the absence of any
Mortgagor equity in the Mortgaged Premises and without regard to the solvency or
insolvency of Mortgagor at the time of application for such receiver and without
regard to the then value of the Mortgaged Premises or the Collateral or whether
the Mortgaged Premises shall be then occupied as a homestead or not and
Mortgagee hereunder or any agent of Mortgagee may be appointed as such receiver.
Xxxxxxxxx hereby approves of and consents to the appointment of any such
receiver upon any Event of Default. Such receiver shall have the power to
perform all of the acts permitted Mortgagee pursuant to Paragraph 10(b) above
and such other powers which may be necessary or are customarily in such cases
for the protection, possession, control, management and operation of the
Mortgaged Premises during such period.
(f) Application of Collections. All sums collected by
Mortgagee under this Mortgage or under the Note on account of principal or
interest or other amounts owing hereunder including, without limitation, costs
of collection and attorneys' fees and expenses, may be applied in such order and
manner as Mortgagee, in its sole discretion, may elect.
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(g) INTEREST. INTEREST AT A RATE EQUAL TO THE DEFAULT
RATE SHALL BE DUE ON ANY JUDGMENT OBTAINED BY MORTGAGEE FROM THE DATE OF SUCH
JUDGMENT UNTIL ACTUAL PAYMENT IS MADE OF THE FULL AMOUNT OF THE JUDGMENT BY THE
SHERIFF OR OTHERWISE. THE OBLIGATIONS OF THE MORTGAGOR AND THE RIGHTS AND
REMEDIES OF THE MORTGAGEE HEREUNDER SHALL CONTINUE AFTER AND SURVIVE THE ENTRY
OF JUDGMENT THEREUNDER OR UNDER THE OBLIGATION THIS MORTGAGE SECURES, IT BEING
THE INTENTION OF THE PARTIES HERETO THAT SUCH RIGHTS, REMEDIES AND OBLIGATIONS
SHALL NOT MERGE INTO OR BE EXTINGUISHED BY ANY SUCH JUDGMENT BUT WILL CONTINUE
UNTIL ALL SUMS SECURED HEREBY SHALL HAVE BEEN IRREVOCABLY AND INDEFEASIBLY PAID
IN FULL.
11. Rights and Remedies Cumulative.
(a) The rights and remedies of Mortgagee as provided
in this Mortgage, in the Note and in any other Loan Document shall be cumulative
and concurrent and are in addition to any other remedies Mortgagee may have at
law or in equity; may be pursued separately, successively or together against
Mortgagor or against the Mortgaged Premises or the Collateral, or any of them,
at the sole discretion of Mortgagee, and may be exercised as often as occasion
therefor shall arise. The failure to exercise any such right or remedy shall in
no event be construed as a waiver or release thereof.
(b) Neither Mortgagor nor any other person now or
hereafter obligated for payment of all or any part of the sums now or hereafter
secured by this Mortgage shall be relieved of such obligation by reason of the
failure of Mortgagee to comply with any request of Mortgagor or of any other
person so obligated to take action to foreclose on this Mortgage or otherwise
enforce any provisions of the Mortgage or the Note, by reason of the release,
regardless of consideration, of all or any part of the security held for the
indebtedness secured by this Mortgage, or by reason of any agreement or
stipulation between any subsequent owner of the Mortgaged Premises or the
Collateral and Mortgagee extending the time of payment or modifying the terms of
the Mortgage or Note without first having obtained the consent of Mortgagor or
such other person; and in the latter event Mortgagor and all such other persons
shall continue to be liable to make payments according to the terms of any such
extension or modification agreement, unless expressly released and discharged in
writing by Mortgagee.
(c) Mortgagee may release, regardless of
consideration, any part of the security held for the indebtedness secured by
this Mortgage without, as to the remainder of the security, in any way impairing
or affecting the lien of this Mortgage or its priority over any subordinate
lien.
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(d) For payment of the Indebtedness, Mortgagee may
resort to any security held by Mortgagee in such order and manner as Mortgagee
may elect. Mortgagor specifically waives the right to require ordering or
marshaling of assets in connection with the realization by Mortgagee of the
security hereunder.
(e) The receipt by Mortgagee of any sums from
Mortgagor after the date on which Mortgagee elects to accelerate the
indebtedness secured hereby by reason of a default hereunder, under the Note or
any other Loan Document shall not constitute a cure or waiver of such default or
a reinstatement of the Note or Mortgage or such other Loan Document, unless
Mortgagee expressly agrees, by written notice to Xxxxxxxxx, that such payment
shall be accepted as a cure or waiver of the default.
12. Possession of Mortgaged Premises by Mortgagee. If
Mortgagee shall take possession of the Mortgaged Premises as provided herein,
Mortgagee may do all or any of the following (provided that nothing herein
contained shall obligate Mortgagee to do any of the same): (a) hold, manage,
operate, lease and sublease the Mortgaged Premises, to Mortgagor or any other
person or persons, on such terms and for such periods of time as Mortgagee may
deem proper, and the provisions of any lease or sublease made by Mortgagee
pursuant hereto shall be valid and binding upon Mortgagor notwithstanding the
fact that Mortgagee's right of possession may terminate or this Mortgage may be
satisfied of record prior to the expiration of the term of any such lease; (b)
make such alterations, additions, improvements, renovations, repairs and
replacements to the Mortgaged Premises as Mortgagee may deem proper; (c)
demolish any part or all of the buildings, structures or other improvements on
the Real Estate which in the judgment of Mortgagee may be in unsafe condition
and dangerous to life or property; (d) remodel such buildings or other
Improvements so as to make them available in whole or in part for any business,
dwelling, multiple dwelling or other purposes; and (e) collect the rents, issues
and profits arising from the Mortgaged Premises, both past due and thereafter
becoming due, and apply the same, in order of priority as Mortgagee may
determine, to the payment of all charges and commissions incidental to the
collection of rents and the management of the Mortgaged Premises and all other
sums or charges required to be paid by Xxxxxxxxx hereunder or under the Note.
All moneys advanced by Mortgagee for the purposes aforesaid and not repaid out
of the rents collected shall be added to the principal indebtedness hereby
secured and without demand shall be repaid by Mortgagor to Mortgagee, together
with interest thereon at the Default Rate set forth in the Note. The taking of
possession and collection of rents by Mortgagee as aforesaid shall not be
construed to be an affirmation of any lease, or any part thereof, and Mortgagee
or any other purchaser at any foreclosure sale may (if otherwise entitled so to
do) exercise the right to terminate any lease as though such taking of
possession and collection of rents had not occurred.
13. Waivers. The granting of an extension or
extensions of time by Mortgagee with respect to the performance of any provision
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of this Mortgage or the Loan Documents on the part of Mortgagor to be performed,
or the taking of any additional security, or the waiver by Mortgagee or failure
by Mortgagee to enforce any provision of this Mortgage or the Loan Documents, or
to declare a default with respect thereto, shall not operate as a waiver of any
subsequent default or defaults or affect the right of Mortgagee thereafter, to
insist upon strict performance by Xxxxxxxxx of the terms hereof or to exercise
all rights, powers or remedies set forth herein and therein.
14. Condemnation.
(a) Mortgagee shall be entitled to receive all sums
which have been or may be awarded Xxxxxxxxx for the taking or condemnation of
the Mortgaged Premises or any part thereof for any public or quasi-public use or
purpose, and any sums which may be awarded Mortgagor for damages caused by
public works or construction on or near the Mortgaged Premises. All such
proceeds and awards are hereby assigned to Mortgagee, and Xxxxxxxxx, upon
request by Xxxxxxxxx, agrees to make, execute and deliver any additional
assignments or documents which may be necessary from time to time to enable
Mortgagee, at its option, to collect and receive the same. Mortgagee shall have
the right to retain and apply all such proceeds and awards, at its election, to
reduction of the indebtedness secured hereby or to require Mortgagor to apply
such proceeds and awards to the repair and restoration of the Mortgaged Premises
in the same manner as set forth in Paragraph 1(e)(viii) hereof with respect to
insurance proceeds. No settlement of any such award shall be made by Mortgagor
without Mortgagee's prior written consent.
(b) Notwithstanding anything contained in the
foregoing to the contrary, (i) provided no Event of Default then exists and (ii)
Mortgagee in its reasonable judgment is satisfied that there are sufficient net
proceeds to complete restoration of the building(s) and improvements on the Real
Estate to substantially the same value, condition and character as existed prior
to such condemnation within the term of the Note (or, in the event of a
deficiency, Mortgagor deposits an amount equal to any such deficiency),
Mortgagee shall allow the condemnation proceeds to be used for restoration of
the Mortgaged Premises, such proceeds to be disbursed from time to time as
restoration progresses in accordance with the terms and conditions of the Loan
Agreement applicable to the disbursement of loan proceeds.
(c) If the amount of the initial award of damages for
the taking or condemnation is insufficient to pay in full the indebtedness
secured hereby with interest and other appropriate charges and other sums
secured hereby, Mortgagee shall have the right to prosecute to final
determination or settlement an appeal or other appropriate proceedings in the
name of Mortgagee or Xxxxxxxxx, for which Mortgagee is hereby appointed
attorney-in-fact for Mortgagor, which appointment, being for security, is
coupled with an interest and is irrevocable. In that event, the expenses of the
proceeding, including attorneys' fees as aforesaid, shall be paid first out of
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the proceeds, and only the excess, if any, paid to Mortgagee shall be credited
against the amounts due under the Note and this Mortgage.
(d) Nothing herein shall limit the rights otherwise
available to Mortgagee, at law or in equity, including the right to intervene as
a party to any condemnation proceeding; and Mortgagee is hereby expressly given
the right to intervene as a party to, and otherwise participate in, any such
proceeding, to engage counsel on its behalf, and to add the reasonable
attorneys' fees of any such counsel to the amounts secured hereby.
15. Security Agreement.
(a) This Mortgage constitutes a security agreement
under the UCC, and Mortgagor hereby grants to Mortgagee a security interest in
and lien on all of the Collateral under the UCC and under any other applicable
law. Mortgagor shall execute, deliver, file and refile any financing statements,
continuation statements, or other security agreements Mortgagee may require from
time to time to confirm the lien of this Mortgage with respect to such property.
Without limiting the generality of the foregoing, Xxxxxxxxx hereby irrevocably
appoints Mortgagee attorney-in-fact for Xxxxxxxxx to execute, deliver and file
such financing statements, continuation statements and other documents necessary
to carry out the provisions hereof, to carry out the purposes hereof or to
confirm the priority of the lien created hereby, for and on behalf of Mortgagor,
which appointment, being for security, is coupled with an interest and is
irrevocable. The security agreement contained in this Mortgage shall survive any
discharge of this Mortgage for so long as any Indebtedness remains unpaid under
the Note or any other Loan Document.
(b) In addition to any other remedies granted in this
Mortgage, Mortgagee may, upon the occurrence of an Event of Default, proceed
under the UCC and any other applicable law as to all or any part of the
Collateral and shall have and may exercise, with respect to the Collateral, all
rights, remedies and powers of secured party under the UCC and any other
applicable law, including, without limitation, the right and power to sell at
public or private sale or sales, or otherwise dispose of, lease or utilize the
Collateral or any parts thereof in any manner authorized or permitted under the
UCC and any other applicable law after default by debtor, and to apply the
proceeds thereof in payment of any costs and expenses and attorney's fees and
legal expenses thereby incurred by the Mortgagee, and to the payment of
indebtedness secured by this Mortgage in such order and manner as the Mortgagee
may elect.
(c) Upon the occurrence of an Event of Default,
Mortgagee may take possession of the Collateral and enter upon any premises
where the same may be situated for such purpose without being guilty of
trespassing and without liability for damages thereby, and take any action
deemed necessary or appropriate or desirable by Mortgagee, at its option, to
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repair, refurbish or otherwise prepare the Collateral for sale, lease or other
use or disposition as herein authorized.
(d) To the extent permitted by law, Xxxxxxxxx
expressly waives any notice of sale or other disposition of the Collateral and
any other rights or remedies of a debtor or formalities prescribed by law
relative to a sale or disposition of the Collateral or exercise of any other
right or remedy of Mortgagee existing after default of Mortgagor hereunder; and
to the extent any such notice is required and cannot be waived, Mortgagor agrees
that if such notice is mailed, postage prepaid, to Mortgagor at its address
shown above, at least ten (10) days before the time of sale or disposition, such
notice shall be deemed reasonable and shall fully satisfy any statutory or other
requirement for the giving of such notice. Upon the occurrence of an Event of
Default, Mortgagee shall have the right, at its option, to transfer at any time
to itself or its nominee, the Collateral or any part thereof, and to receive the
monies, income, proceeds or benefits attributable or accruing thereto and to
hold the same as security for the Indebtedness or to apply it to principal or
interest and other amounts owing on any of the Indebtedness in such order and
manner as Mortgagee may elect. All rights to marshaling of assets of Xxxxxxxxx,
including any such right with respect to the Collateral, are hereby waived.
(e) Mortgagee may require Mortgagor to assemble the
Collateral and make it available to Mortgagee at a place to be designated by
Mortgagee that is reasonably convenient to both parties. All expenses of
retaking, holding, preparing for sale, lease or other use, and of disposition,
selling, leasing or otherwise using or disposing of the Collateral and the like
which are incurred or paid by Mortgagee as authorized or permitted hereunder,
including all attorneys' fees, legal expenses and costs shall be added to the
indebtedness secured by this Mortgage and Mortgagor shall be liable therefor.
16. Further Assurances. Mortgagor shall execute and
deliver such further instruments and perform such further acts as may be
reasonably requested by Mortgagee from time to time to confirm the provisions of
this Mortgage, the Loan Agreement or the Note, to carry out more effectively the
purposes of this Mortgage or the Loan Documents, or to confirm the priority of
the lien created by this Mortgage on any property, rights or interests
encumbered or intended to be encumbered by the lien of this Mortgage or the
other documents securing the Note.
17. No Offset. All sums payable by Mortgagor herein
shall be paid without notice, demand, counterclaim, setoff, deduction or
defense, without abatement, suspension, deferment, diminution, or reduction, and
the obligation and liabilities of Mortgagor hereunder shall in no way be
released, discharged or otherwise affected (except as expressly provided herein)
by reason of (a) any damage to or destruction of or any condemnation or similar
taking of the Mortgaged Premises or any part thereof; (b) any restriction or
prevention of or interference with any use of the Mortgaged Premises or any part
thereof; (c) any title defect or encumbrance or any eviction from the Mortgaged
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Premises or any part thereof by title, paramount or otherwise; (d) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Mortgagee, or any action taken
with respect to this Mortgage by any trustee or receiver of Mortgagee or by any
court in any such proceeding; (e) any claim which Mortgagor has or might have
against Mortgagee; (f) any default or failure on the part of Mortgagee to
conform or comply with any of the terms hereof or any other document or
agreement entered into with Mortgagor; or (g) any other occurrences whatsoever,
whether or not Mortgagor shall have notice or knowledge of any of the foregoing.
Mortgagor waives all rights now and hereafter conferred by statute or otherwise
to any abatement, suspension, deferment, diminution or reduction of any sum
secured hereby and payable by Mortgagor.
18. Miscellaneous Provisions.
(a) Mortgagee as Party to Litigation. If Mortgagee
shall become a party, as plaintiff or defendant, to any suit or legal proceeding
brought by or against any third party affecting the lien hereby created on the
Mortgaged Premises or in any way involving Mortgagee on account of its position
as Mortgagee under this Mortgage, as payee under the Note or the Loan Agreement
or as assignee under the Assignment of Leases or any other assignment or Loan
Document, Mortgagor shall indemnify, defend, and hold harmless Mortgagee from
and against all claims, losses or liabilities by reason of such litigation,
including reasonable attorney's fees and expenses incurred by Mortgagee in any
such litigation, whether or not any such litigation is prosecuted to judgment.
Xxxxxxxxx agrees to pay to Mortgagee on demand its costs, expenses and
attorneys' fees as aforesaid in any such suit or proceeding.
(b) Stamps or Taxes on Mortgage or Notes. Xxxxxxxxx
agrees to pay the cost of any revenue, tax or other stamps now or hereafter
required by law at any time to be affixed to this Mortgage or the Note or the
Loan Agreement, or any tax directly or indirectly on Mortgagee with respect to
the Mortgaged Premises, the Collateral the value of Mortgagor's equity therein,
or the indebtedness evidenced by the Note or secured by this Mortgage, but
excluding any tax on the income of Mortgagee.
(c) Construction of Terms. The word "Mortgagor"
whenever used herein is intended to and shall be construed to include its
successors and assigns permitted hereunder and the word "Mortgagee" whenever
used herein is intended to and shall be construed to include its successors and
assigns.
(d) Binding Obligation. All covenants, agreements,
authorizations, waivers, releases, rights, representations and warranties
contained in this Mortgage made or given by or on behalf of Mortgagor shall be
binding upon Xxxxxxxxx's successors in title or interest and Xxxxxxxxx's heirs,
executors, administrators, successors and assigns, whether so expressed or not,
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and all covenants, agreements, authorizations, waivers, releases, rights,
representations and warranties contained herein shall inure to the benefit of
Mortgagee and its successors and assigns.
(e) Communications.
(i) All notices and other communications
required or permitted by this Mortgage shall be given in accordance with Section
8.7 of the Loan Agreement.
(ii) Mortgagee shall not be required to give
notice under more than one Loan Document with respect to the same occurrence or
omission and any communication given by Mortgagee hereunder or under any of the
other Loan Documents with respect to such occurrence or omission shall be deemed
to be a notice under all of the Loan Documents. From and after the effective
date of such notice, the time periods for cure or other action by Xxxxxxxxx
shall run concurrently as to all Loan Documents.
(f) Covenant Running with the Land. Any act or
agreement to be done or performed by Xxxxxxxxx shall be construed as a covenant
running with the land and shall be binding upon Xxxxxxxxx and its heirs,
executors, successors and assigns as if they personally made such agreement.
(g) Captions. The captions preceding the text of the
paragraphs or subparagraphs of this Mortgage are inserted for convenience of
reference only and shall not constitute a part of this Mortgage, nor shall they
in any way affect its meaning, construction or effect.
(h) Severability. If any provision of this Mortgage
or the application thereof is held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions hereof shall not be affected
thereby, and each provision of this Mortgage shall be valid and enforceable to
the fullest extent permitted by law.
(i) Governing Law. This Mortgage shall be governed by
and construed in accordance with the law of the Commonwealth of Pennsylvania
(but not including the choice of law provisions thereof).
(j) Modifications. Neither this Mortgage nor the
Note, the Loan Agreement, or any of the Loan Documents may be supplemented,
extended or otherwise modified except by agreement in writing between Mortgagee
and Mortgagor.
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(k) JURISDICTION; TRIAL BY JURY. XXXXXXXXX XXXXXX
SUBMITS AND CONSENTS TO THE JURISDICTION OF THE COURTS OF THE
_____________________ AND THE COURTS OF THE UNITED STATES DISTRICT COURT LOCATED
IN THE COMMONWEALTH OF PENNSYLVANIA, IN ANY AND ALL ACTIONS OR PROCEEDINGS
ARISING HEREUNDER OR PURSUANT HERETO, AND IRREVOCABLY AGREES TO SERVICE OF
PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS SET FORTH
HEREIN OR SUCH OTHER ADDRESS AS MORTGAGOR MAY DIRECT BY NOTICE TO MORTGAGEE.
XXXXXXXXX IRREVOCABLY AS AN INDEPENDENT COVENANT WAIVES A JURY TRIAL AND THE
RIGHT THERETO IN ANY ACTION OR PROCEEDING BETWEEN MORTGAGOR AND MORTGAGEE,
WHETHER HEREUNDER OR OTHERWISE.
(l) Joint and Several Liability. If Mortgagor
consists of more than one person, all agreements, conditions, covenants,
provisions, stipulations, warrants of attorney, authorizations, waivers,
releases, options, undertakings, rights and benefits made or given by Mortgagor
shall be joint and several, and shall bind and affect all persons who are
defined as "Mortgagor" as fully as though all of them were specifically named
herein wherever the word "Mortgagor" is used.
(m) Future Advances. This Mortgage is given to secure
and hereby secures, among other things, all future advances and obligations of
Mortgagor to Mortgagee incurred or to be incurred pursuant to the terms of the
Loan Agreement, the Note and this Mortgage, including, but not limited to, all
advances made with respect to the Mortgaged Premises and the Collateral for the
payment of taxes, assessments, maintenance charges, insurance premiums or costs
incurred for the protection of the Mortgaged Premises or Collateral or the lien
of this Mortgage, expenses incurred by Mortgagee by reason of a default by
Mortgagor under this Mortgage or any other Loan Document. This Mortgage secures
all advances authorized under ______________.
19. Environmental Matters.
(a) The Mortgagor represents, covenants and warrants
that:
(i) the Mortgaged Premises, and the
operations being conducted thereon have been and will be operated in compliance
with all applicable environmental Legal Requirements and all permits, licenses
and approvals required thereunder have been obtained and complied with in all
material respects;
(ii) no Hazardous Substances have been or
are being emitted, released, spilled, discharged, leaked, dumped or disposed
(each, a "Release") or pose a threat of Release at, upon, under, within, or from
the Mortgaged Premises;
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(iii) there are no aboveground or
underground storage tanks, radon, asbestos materials, PCBs or urea formaldehyde
insulation at, upon, under or within the Mortgaged Premises;
(iv) the Mortgaged Premises has never been
used for the treatment, storage, recycling, or disposal of Hazardous Substances;
(v) no Hazardous Substances are present at
the Mortgaged Premises excepting small quantities of petroleum and chemical
products, in proper storage containers, as are necessary for the construction or
operation of the business of Mortgagor, and the usual waste products therefrom
stored and handled in full compliance with environmental Legal Requirements
("Permitted Substances"). Other than Permitted Substances, Mortgagor will not
place or permit to be placed any Hazardous Substances on the Mortgaged Premises;
(vi) there is no basis for the imposition of
any lien based on any governmental environmental action at the site, and no such
lien has been imposed and none is threatened;
(vii) its grantor was not required to and
did not place a notice in the deed to the Mortgaged Premises related to presence
of Hazardous Substances at the Mortgaged Premises as required by 35 P.S. Section
6018.405 or otherwise;
(viii) neither the Mortgagor nor, to the
best of its knowledge after diligent inquiry, any other person or entity has
been, is or will be involved in operations upon the Mortgaged Premises which
could lead to the imposition of environmental liability on Mortgagor, or on any
other subsequent or former owner of the Mortgaged Premises or the creation of an
environmental lien on the Mortgaged Premises; and
(ix) Mortgagor has not permitted, and will
not permit, any resident, occupant or other user of the Mortgaged Premises to
engage in any activity with respect to the use, manufacturing, generation,
treatment, processing, storage, recycling or disposal of any Hazardous
Substances that could impose environmental liability on such resident, occupant
or user, on the Mortgagor or on any owner or operator of any of the Mortgaged
Premises.
(b) In the event the Mortgagor obtains, gives or
receives notice of any Release or threat of Release of any Hazardous Substances
at the Mortgaged Premises (any such event being hereinafter referred to as a
"Hazardous Discharge") or receives any notice of violation, request for
information or notification that it is potentially responsible for investigation
or cleanup of environmental conditions at the Mortgaged Premises, demand letter
or complaint, order, citation, or other notice with regard to any Hazardous
Discharge or any other environmental matter affecting the Mortgaged Premises or
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Xxxxxxxxx's interest therein (an "Environmental Complaint") from any person or
entity, including any federal, state or local government authority, then the
Mortgagor shall, within five (5) business days, forward a copy of same to
Mortgagee and give written notice of same to the Mortgagee detailing facts and
circumstances giving rise to the Hazardous Discharge or Environmental Complaint.
Such information is to be provided to allow Mortgagee to protect its security
interest in the Mortgaged Premises.
(c) Promptly upon the written request of the
Mortgagee, which written request may be made by the Mortgagee only with the
reasonable belief that there has been an actual or alleged violation of
environmental Legal Requirements or a Hazardous Discharge at the Mortgaged
Premises, or in the event of notice to Mortgagee of a Hazardous Discharge or
presence of Hazardous Substances at the Mortgaged Premises or an environmental
condition forming the basis of the Environmental Complaint, or there has been an
Event of Default, the Mortgagor at its sole expense shall provide Mortgagee with
an environmental site assessment or environmental audit report prepared by an
environmental engineering firm acceptable in the reasonable opinion of the
Mortgagee, assessing with a reasonable degree of certainty the existence of a
Hazardous Discharge, presence of Hazardous Substances or such other
environmental condition and an estimate of the potential cost in connection with
investigation, removal, remedial action or other response action with respect to
any Hazardous Substance found on, under, at or within the Mortgaged Premises or
the potential cost to cure or fully respond to such environmental condition.
(d) If the estimate described in subparagraph (c)
above, individually or in the aggregate, exceeds $5,000, Mortgagee shall have
the option of declaring such occurrence an Event of Default hereunder or
requiring Mortgagor to post a bond in favor of Mortgagee in an amount equal to
125% of such estimate, issued by an institutional surety satisfactory to
Mortgagee. In the event the Mortgagee requires such a bond, it shall be posted
within thirty (30) days of Mortgagee's request and Mortgagor shall diligently
and in good faith commence and thereafter continually pursue the appropriate
investigation, removal, remedial action or other response or action to
Mortgagee's satisfaction.
(e) If the Environmental Complaint or Hazardous
Discharge is the subject of any governmental inquiry, investigation or audit,
failure by Xxxxxxxxx to comply with any requirement imposed as a result of such
governmental action shall be an Event of Default hereunder.
(f) Xxxxxxxxx shall defend and indemnify the
Mortgagee and hold Mortgagee harmless from and against all losses, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and expenses), claims, costs, fines and penalties suffered or incurred by the
Mortgagee, whether as holder of this Mortgage, as a mortgagee in possession, or
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as successor-in-interest to the Mortgagor by foreclosure deed or deed in lieu of
foreclosure, under or on account of (i) any environmental Legal Requirement,
including the assertion of any lien thereunder, with respect to any violation or
non-compliance with environmental Legal Requirements, an Environmental Complaint
or Hazardous Discharge, (ii) the presence or release of any Hazardous Substance
affecting the Mortgaged Premises whether or not the same originates or emanates
from the Mortgaged Premises or any contiguous real estate, including any loss of
value of the Mortgaged Premises as a result of the foregoing so long as no such
loss, liability, damage and expense is attributable to any Hazardous Discharge
resulting directly from actions on the part of Mortgagee or (iii) the breach of
any of the foregoing environmental representations, warranties or covenants.
With respect to Hazardous Discharges, Xxxxxxxxx's obligations under this
Paragraph 19 shall arise upon the discovery of the presence of any Hazardous
Substance at the Mortgaged Premises, whether or not any federal, state, or local
environmental agency has taken or threatened any action in connection with the
presence of any Hazardous Substance, and shall survive the termination of this
Mortgage. Mortgagor further waives and releases Mortgagee in its capacity as a
secured creditor and/or lender from any claims, liabilities, losses, damages,
costs, rights, claims for contribution or defenses Mortgagor may have under
common law or environmental Legal Requirements whether known or unknown, fixed
or contingent, now in existence or which arise in the future arising from,
relating to or resulting from the presence or Release of Hazardous Substances,
except to the extent caused by the gross negligence or willful misconduct of
Mortgagee.
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IN WITNESS WHEREOF, Xxxxxxxxx has caused this Mortgage to be
duly executed and delivered on the date first above written.
MORTGAGOR:
Witness: ______________________________
__________________________ By:___________________________
Name: Name:
Title:
[CORPORATE SEAL]
I hereby certify that the address
of the within-Mortgagee is:
Attention:
__________________________________
On behalf of the within Mortgagee
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_____________________________:
: ss.
COUNTY OF ___________________:
On this _______ day of ________________, 1998, before me, a
Notary Public in and for the aforesaid, the undersigned officer, personally
appeared ___________________, who acknowledged himself to be the _____________
__________________________ of , a ___________, and that he, as such ___________
________________, being authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as such _______________.
IN WITNESS WHEREOF, I hereunto set my hand and notarial seal.
_________________________
[Notarial Seal] Notary Public
My Commission Expires:
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EXHIBIT A
Legal Description of Mortgaged Premises
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