EXHIBIT 10.17
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OPEN END
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE IS AN OPEN-END MORTGAGE AS PROVIDED IN CHAPTER 81 OF THE
PENNSYLVANIA JUDICIARY AND JUDICIAL PROCEDURE CODE, 42 PA. C.S.A. SECTIONS 8143
AND 8144, SECURES FUTURE ADVANCES AND THE MORTGAGEE IS OTHERWISE ENTITLED
TO THE RIGHTS, BENEFITS AND PRIVILEGES PROVIDED IN SAID 42 PA. C.S.A. SECTIONS
8143 AND 8144, AS THOSE SECTIONS MAY BE AMENDED OR SUPPLEMENTED FROM TIME
TO TIME.
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (this
"Mortgage"), dated as of August 24 1999 by and between POLYCHEM CORPORATION, A
PENNSYLVANIA CORPORATION, whose permanent mailing address is Xxxxxxxx Xxxxxx xxx
Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter called "Mortgagor")
and PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, an Administrative Board of the
Commonwealth of Pennsylvania transacting business in the name of the PUBLIC
SCHOOL EMPLOYES' RETIREMENT SYSTEM (PSERS), having an office at 0 Xxxxx 0xx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter called
"Mortgagee").
WITNESSETH, that in consideration of the premises and to
secure the payment of both the principal of, and interest and any other sums
payable on, that certain Balloon Mortgage Note of even date herewith (the
"Note"), including all future advances (as hereinafter defined) or this Mortgage
and the performance and observance of all of the provisions hereof and of the
Note and other related loan documents, Mortgagor hereby grants, sells, warrants,
conveys, assigns, transfers, mortgages, pledges, grants a security interest in
and sets over and confirms unto Mortgagee, its successors and assigns, all of
Mortgagor's estate, right, title, interest, property, claim and demand in and to
that certain real property located at, Franklin Avenue and Grant Street, Borough
of Phoenixville, Xxxxxxx County, Pennsylvania more particularly described in
Exhibit "A" .
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in any way appertaining to said real property,
all easements, rights of way and rights used in connection with said real
property, all buildings, structures and other improvements now or hereafter
located on said real property and all fixtures, appliances, apparatus,
equipment, furnishings, heating and air conditioning systems and equipment and
other articles of personal property, now or hereafter affixed to, attached to,
placed upon, or used in any way in connection with the complete and comfortable
use, occupancy, or operation of the said real property, all licenses and permits
used or required in connection with the use of said real property, all leases of
said real property now or hereafter entered into and all right, title and
interest of Mortgagor thereunder, including without limitation, cash or
securities deposited thereunder pursuant to said leases, and all rents, issues,
proceeds, and profits accruing from said real property and together with all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims, including without limitation, proceeds of
insurance and condemnation awards, and all other proceeds, both cash and
non-cash, of any and all of the foregoing (the foregoing said real property,
tangible and intangible personal property hereinafter referred to collectively
as the "Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee and
its successors and assigns forever.
Mortgagor warrants that Mortgagor has a good and marketable
title to an indefeasible fee estate in the real property comprising the
Mortgaged Property, and good title to the other property comprising the
Mortgaged Property, subject to no lien, charge, pledge, security interest or
other encumbrance except such as Mortgagee has agreed to accept in writing and
Mortgagor covenants that this Mortgage is and will remain a valid and
enforceable mortgage on the Mortgaged Property subject only to the exceptions
herein provided. Mortgagor has full power and lawful authority to mortgage the
Mortgaged Property in the manner and form herein done or intended hereafter to
be done. Mortgagor will preserve such title and will forever warrant and defend
the validity and priority of the lien and security interest hereof against the
claims and demands of all persons and parties whomsoever.
PROVIDED, HOWEVER, that if the Mortgagor shall pay to
Mortgagee the indebtedness in the principal sum of ONE MILLION EIGHT HUNDRED
EIGHTY THOUSAND DOLLARS ($1,880,000) as evidenced by that certain promissory
note (the "Note") of even date herewith or any renewal or replacement of such
Note, which by its term is expressly secured by this Mortgage, with interest and
upon the terms as provided therein, and together with all other sums advanced by
Mortgagee to or on behalf of Mortgagor pursuant to the Note or this Mortgage,
and if the Mortgagor shall duly, promptly and fully pay, perform, discharge,
execute, effect, complete and comply with and abide by each and every other of
the stipulations, agreements, conditions and covenants of the Note (all the
terms of which are incorporated herein by reference as though set forth fully
herein), this Mortgage, and the other instruments referred to herein, then this
Mortgage and the estate hereby created shall cease and terminate.
TO BETTER SECURE PAYMENT OF SAID INDEBTEDNESS, Mortgagor
further covenants and agrees with the Mortgagee as follows:
1. Place of Payment and Costs of Collection. All indebtedness
secured hereby shall be payable at Mortgagee's principal place of business, and,
unless otherwise provided in the instrument evidencing said indebtedness, shall
bear interest at the same rate per annum as the Note bears, from date of accrual
of said indebtedness until paid. If the Note or any other indebtedness secured
hereby shall be collected by legal proceedings or through a probate or
bankruptcy court, or shall be placed in the hands of an attorney for collection
after maturity, whether matured by the expiration of time or by the option given
to the Mortgagee to mature same, Mortgagor agrees to pay all and singular, the
costs, charges and expenses, including attorneys fees (through all stages of
legal proceedings including pretrial, trial, appellate and administrative)
reasonably incurred, or paid at any time by the Mortgagee because of the failure
on the part of the Mortgagor to perform, comply with and abide by each and every
one of the stipulations, agreements, conditions and covenants of the Note and
this Mortgage, and every such payment shall bear interest at the default rate
set forth in the Note from the date said expenses are incurred until the date
Lender is reimbursed for said expenses.
2. Timely Payment. Mortgagor will pay all of the indebtedness
secured hereby, together with the interest and other appurtenant charges
thereon, when the same shall become due, in accordance with the terms of the
Note or other instruments evidencing said indebtedness or evidencing any
renewal, extension or modification of the same, or this Mortgage, all such sums
to be payable in lawful money of the United States of America at Mortgagee's
aforesaid principal office, or at such other place as Mortgagee may designate in
writing. Payments shall not be deemed to be paid until said payments are
received at Mortgagee's office.
3. Payment of Charges, Etc. Against Property; Liens. Mortgagor
will immediately pay and discharge any taxes, assessments, levies, charges,
liabilities, claims, liens, obligations, impositions and encumbrances of every
nature and kind now on the Mortgaged Property, or that hereafter may be imposed,
suffered, placed, levied or assessed thereon, or that hereafter may be
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levied or assessed upon this Mortgage or the indebtedness secured hereby, when
due and payable according to law, before they become delinquent, and before any
interest attached or any penalty is incurred, and produce receipts therefor upon
demand; provided, however, that in the event of the passage of any such law or
regulation imposing a tax or assessment against Mortgagee upon this Mortgage or
the debt secured hereby, the entire indebtedness secured by this mortgage shall
thereupon become immediately due and payable at the option of the Mortgagee.
Mortgagor shall not create, permit to accrue or suffer to exist any assignment,
mortgage, lien, security interest, pledge, conditional sale or other title
retention agreement, encumbrance or charge of, in, to or upon the Mortgaged
Property.
4. Escrow Account. Mortgagee requires monthly deposits by
Mortgagor in a non-interest bearing account, together with and in addition to
interest and principal, of a sum equal to one-twelfth (1/12) of the yearly taxes
and assessments which may be levied against the Mortgaged Property, and
one-twelfth (1/12) of the yearly premiums for insurance thereon. The amount of
such taxes, assessments and premiums, when unknown, shall be estimated by
Mortgagee. Such deposits shall be used by Mortgagee to pay such taxes,
assessments and premiums when due. Any insufficiency of such account to pay such
charges when due shall be paid by Mortgagor to Mortgagee on demand. If, by
reason of any default by Mortgagor under any provision of this Mortgage,
Mortgagee declares all sums secured hereby to be due and payable, Mortgagee may
then apply any funds in said account against the entire indebtedness secured
hereby. The enforceability of the covenants relating to taxes, assessments and
insurance premiums herein otherwise provided shall not be affected except
insofar as those obligations have been met by compliance with this paragraph.
Mortgagee may from time to time at its option waive, and after any such waiver
reinstate, any or all provisions hereof requiring such deposits, by notice to
Mortgagor in writing. While any such waiver is in effect, Mortgagor shall pay
taxes, assessments and insurance premiums as herein elsewhere provided.
5. Property Insurance. Mortgagor will keep the Mortgaged
Property insured against loss or damage by fire, and all perils insured against
by an extended coverage endorsement, rent or business interruption and such
other risks and perils as Mortgagee in its discretion may require. Mortgagor
shall obtain and deposit with Mortgagee fire, extended coverage, hazard and
other perils insurance on the property in an amount equal to one hundred percent
(100%) of the full replacement value of the improvements but in no event less
than $1,880,000 and shall contain a standard mortgage clause with the loss
payable to Mortgagee. The policy shall have a replacement cost endorsement and
an inflation guard endorsement. Mortgagor shall also be required to obtain and
deposit with Mortgagee rent loss insurance insuring the subject property to
cover loss of rents for a period of one year, naming Mortgagee as loss payee.
Mortgagor will further be required to maintain comprehensive general liability
insurance for bodily injury (including death) and property damage in an amount
not less than $1,000,000.00, naming Mortgagee as additional insured. In the
event the Property is located in a flood hazard area, Mortgagor will obtain and
deliver to Mortgagee the maximum available amount of flood insurance. The flood
zone shall be clearly defined (e.g. Flood Zone A, Flood Zone, B, etc.) and the
local definition of the flood zone shall be stated. All insurance policies
required by Mortgagee shall be prepared for a period of not less than one year
and shall be in amounts, form and substance satisfactory to Lender, with
companies acceptable to them in favor of and in form acceptable to Mortgagee.
The insurance company shall be required to have a Best Guide financial rating of
no less than A and a size rating of IX or larger. All policies shall provide for
a mandatory thirty (30) day written notice to Mortgagee prior to cancellation
for any reason. The originals of such policies shall be delivered to and be held
by Mortgagee. Any and all amounts received by Mortgagee under any of such
policies may be applied by Mortgagee on the indebtedness secured hereby in such
manner as Mortgagee may, in its sole discretion, elect or, at the option of
Mortgagee, the entire amount so received or any part thereof may be released.
Neither the application nor the release of any such amounts shall cure or waive
any default. Upon exercise of the power of sale given in the Mortgage or other
acquisition of the Mortgaged Property
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or any part thereof by Mortgagee, such policies shall become the absolute
property of Mortgagee. Payments for such insurance shall be escrowed pursuant to
paragraph four (4) of this Mortgage document.
6. Maintenance. Mortgagor shall maintain the Mortgaged
Property in good condition and repair, including but not limited to the making
of such repairs as Mortgagee may from time to time determine to be necessary for
the preservation of the Mortgaged Property and shall not commit or permit any
waste thereof, and Mortgagee shall have the right to inspect the Mortgaged
Property on reasonable notice to Mortgagor.
7. Mortgagee's Right to Cure. If Mortgagor fails to pay or
discharge any claim, lien or encumbrance on the Mortgaged Property, or to pay
when due any tax or assessment or insurance premium required to be maintained
hereunder, or to keep the Mortgaged Property in repair, or shall commit or
permit waste, or if there be commenced any action or proceeding affecting the
Mortgaged Property or the title thereto, or the interest of Mortgagee therein,
including, but not limited to, eminent domain and bankruptcy or reorganization
proceedings, then Mortgagee, at its option, may pay said claim, lien,
encumbrance, tax assessment or premium, with right to subrogation thereunder,
may make such repairs and take such steps as it deems advisable to prevent or
cure such waste without being deemed in any manner guilty of trespass or
forcible entry and detainer and without incurring any liability for any damage
therefrom, and may appear in any such action or proceeding and retain counsel
therein, and take such action therein as Mortgagee deems advisable, and for any
of such purposes Mortgagee may advance such sums of money, including all costs,
reasonable attorneys' fees and other items of expense as it deems necessary.
Mortgagee shall be the sole judge of the legality, validity and priority of any
such claim, lien, encumbrance, tax, assessment and premium and of the amount
necessary to be paid in satisfaction thereof. Mortgagee shall not be held
accountable for any delay in making any such payment, which delay may result in
any additional interest, costs, charges, expenses or otherwise. All expenditures
made by the Mortgagee in that connection, including reasonable attorneys' fees,
shall bear interest at the Default Rate set forth in the Note from the date of
expenditure and shall, at the option of the Mortgagee, be added to the unpaid
principal amount due under the Note or be payable immediately and without demand
and all such expenditures shall be secured by the lien of this Mortgage. In the
case of any such payment by Mortgagee, the Mortgagor agrees to reimburse and
indemnify the Mortgagee. Neither the right nor the exercise of the right herein
granted unto the Mortgagee to make any such payments shall preclude the
Mortgagee from exercising its option to cause the whole indebtedness secured
hereby to become, immediately due and payable by reason of the Mortgagor's
default in making such payments as hereinabove required.
8. Governmental Requirements. Mortgagor will observe, abide by
and comply with all statutes, ordinances, orders, requirements or decrees
relating to the Mortgaged Property by any federal, state or municipal authority
or subdivision, and observe and comply with all conditions and requirements
necessary to preserve and extend any and all rights, licenses, permits
(including but not limited to, zoning variances, special exceptions and
non-conforming uses), privileges, franchises and concessions which are
applicable to said premises or which have been granted to or contracted for by
Mortgagor in connection with any existing or presently contemplated use of said
premises.
9. Condemnation Proceedings. In the event of condemnation
proceedings of the Mortgaged Property, the award or compensation payable
thereunder is assigned hereby to and shall be paid to Mortgagee. Mortgagee shall
be under no obligation to question the amount of any such award or compensation
and may accept the same in the amount in which the same shall be paid. In any
such condemnation proceedings, Mortgagee may be represented by counsel selected
by Mortgagee. The proceeds of any award or compensation so received shall, at
the option of Mortgagee, either be applied to the prepayment of the Note and at
the rate of interest provided therein, regardless of the rate of interest
payable on the award by the condemning authority, or at
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the option of Mortgagee, such award shall be paid over to Mortgagor for
restoration of the Mortgaged Property.
10. Assignment of Leases, Etc. Mortgagor hereby grants a first
assignment and pledge to Mortgagee, as additional security for the payment of
all indebtedness secured by this Mortgage, of any and all leases, written or
oral, rents, income, profits, issues, revenues, from whatever source derived,
existing now or hereafter on the Mortgaged Property covered hereby; and
Mortgagor covenants to observe all the obligations of the lessor in any leases
and not to do or permit to be done anything to impair the security thereof; not
to execute any other assignment of lease or assignment of rents of the Mortgaged
Property; and to give Mortgagee written notice of any alteration to or
termination of an existing lease, or entry into a new lease; to assign and
transfer to Mortgagee any and all further leases upon all or any part of the
Mortgaged Property; to execute and deliver, at the request of Mortgagee, all
such further assurances and assignments in the premises that, Mortgagee shall
from time to time require; and upon Mortgagee's request, to provide Mortgagee
with copies of all leases covered by the foregoing assignment; and Mortgagor
authorizes the Mortgagee to take possession of the Mortgaged Property at any
time there shall be any default in the payment of the indebtedness hereby
secured or in the performance of any obligation herein contained, and have,
hold, manage, lease and operate the same, on such terms and for such period of
time as Mortgagee may deem proper, and to collect and receive all rents, issues
and profits of the Mortgaged Property, with full power to make from time to time
all alterations, renovations, repairs and replacements thereto as may seem
proper to Mortgagee, and to apply such rents, issues and profits to the payment
of (a) the costs of collection and administration and of all such alterations,
renovations, repairs and replacements, and expenses incident to taking and
retaining possession of the Mortgaged Property, and the management and operation
thereof, and keeping the same properly insured, and (b) all taxes, charges,
claims, assessments, and any other liens on the Mortgaged Property, and (c) the
indebtedness, secured hereby, together with all costs and attorneys fees, in
such order or priority as to any of such items as Mortgagee in its sole
discretion may determine any statute, law, custom or use. Provided, however,
Mortgagee shall not be obligated to perform or discharge, any obligation, duty
or liability under any leases, and Mortgagor shall and does hereby agree to
indemnify Mortgagee for and to hold Mortgagee harmless of and from any and all
liability, loss or damage which it may or might incur under said leases or under
or by reason of any alleged obligations or undertakings on its part to perform
or discharge any of the terms, covenants or agreements contained in said leases;
and further provided, that permission is hereby given to Mortgagor, so long as
no default exists, to collect, take, use and enjoy such rents, income, profits,
issues and revenues as they become due and payable.
11. Alterations to Property. Mortgagor will first obtain the
written consent of Mortgagee, such consent to be granted or withheld at the sole
discretion of Mortgagee, before (a) removing or demolishing any building now or
hereafter erected on the premises, (b) altering the arrangement, design or
structural character thereof, (c) making any repairs which involve the removal
of structural parts or the exposure of the interior of such building to the
elements, (d) cutting or removing or permitting the cutting and removal of any
trees or timber on the Mortgaged Property, or (e) removing or exchanging any
tangible personal property which is part of the Mortgaged Property.
12. Indications of Insolvency. It shall be a default hereunder
if Mortgagor shall (a) consent to the appointment of a receiver, trustee or
liquidator of all or a substantial part of the Mortgagor's assets, or (b) be
adjudicated a bankrupt or insolvent, or file a voluntary Petition in Bankruptcy,
or admit in writing its inability to pay its debts as they become due, or (c)
make a general assignment for the benefit of creditors, or (d) file a Petition
or Answer seeking reorganization or arrangement of creditors, or to take
advantage of any insolvency law, or (e) file an Answer admitting the material
allegations of the Petition filed against the Mortgagor in any bankruptcy,
reorganization
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or insolvency proceeding, or (f) itself take action for the purpose of effecting
any of the foregoing, or (g) if any order, judgment or decree shall be entered
upon an application of a creditor of Mortgagor by a court of competent
jurisdiction approving a Petition seeking appointment of a receiver, or trustee
of all or a substantial part of the Mortgagor's assets and such order, judgment
or decree shall continue unstayed and in effect for a period of thirty (30)
days.
13. Default. In (a) the event of any breach or default of this
Mortgage, the Note, or related loan documents, or if any of said sums of money
or interest referred to herein or in the Note be not fully paid when due without
demand or notice; or (b) the occurrence of any event, circumstance or proceeding
that, in the good faith determination of the Mortgagee, materially adversely
affects the credit or financial condition of the Mortgagor, including without
limitation, any change in the financial condition of Mortgagor or the value of
the Mortgaged Property as reflected in any financial information furnished to
Mortgagee pursuant to paragraph Nineteen (19) herein or otherwise that is
materially adverse in Mortgagee's good faith judgment; or (c) there has been an
event or occurrence that, in the good faith determination of Mortgagee, causes
the Mortgagee to deem itself insecure; or (d) Mortgagee shall be given notice
from Mortgagor as provided for in Chapter 81 of the Pennsylvania Judiciary and
Judicial Procedure Code, 42, PA.C.S.A. Section 8143(c), purporting to limit the
Indebtedness secured by this Mortgage, or purporting to release the obligation
of Mortgagee to make any further advances, or (e) if the stipulations,
agreements, conditions, and covenants of the Note, this Mortgage, or other
related loan documents are not duly, promptly and fully performed, then in
either or any such event (a "default" hereunder), the said aggregate sum
mentioned in the Note then remaining unpaid, with interest accrued to that time,
any prepayment penalty, to the extent allowed by law, and all monies secured
hereby, shall become due and payable forthwith, or thereafter at the option of
the Mortgagee, without notice or demand which are hereby expressly waived, as
fully and completely as if all of said sums of money were originally stipulated
to be paid on such day, anything in the Note, this Mortgage or the other
instruments referred to herein to the contrary notwithstanding; and thereupon or
thereafter, at the option of the Mortgagee, Mortgagee may avail itself of all
rights and remedies, at law or in equity, and this Mortgage may be foreclosed
with all rights and remedies afforded by the laws of Pennsylvania and Mortgagor
shall pay all costs, charges, and expenses thereof, including reasonable
attorney's fees, including all such costs, expenses and attorneys fees, for any
retrial, rehearing or appeal. All such expenses shall bear interest at the
Default Rate set forth in the Note from the date said expenses are incurred
until the date Mortgagee is reimbursed for said expenses. The indebtedness
secured hereby shall bear interest at the Default Rate set forth in the Note
from and after the date of any such default of Mortgagor. The Mortgagee may, at
its option, collect a late charge as may be provided for in the Note, to
reimburse the Mortgagee for expenses in collecting and servicing such
installment payments. In addition, upon any default hereunder, Mortgagee shall
have the right to enter and take possession of the Mortgaged Property or any
part thereof and exclude Mortgagor and all persons claiming under Mortgagor
wholly or partly therefrom. For the purposes of the remedies afforded Mortgagee
hereunder, Mortgagor hereby authorizes any attorney of any court of record to
appear for Mortgagor to sign an agreement for entering an amicable action of
ejectment for possession of any of the Mortgaged Property and to confess
judgment thereon against Mortgagor in favor of Mortgagee, whereupon a writ may
forthwith issue for the immediate possession of any of the Mortgaged Property,
without any prior writ or proceeding whatsoever; and for so doing, this Mortgage
or a copy hereof verified by affidavit shall be a sufficient warrant.
14. Appointment of Receiver. It is further agreed that the
Mortgagee, upon default by Mortgagor, shall be entitled to the appointment of a
receiver of the Mortgaged Property as a matter of absolute right and without
notice; with power to collect the rents, issues and profits of the Mortgaged
Property due and coming due during the pendency of such foreclosure suit,
without regard to the value of the Mortgaged Property or the solvency of any
person or persons liable for the payment of the broad and effective functions
and powers in any way entrusted by a court of equity. Mortgagor, for itself and
any subsequent owner, hereby waives any and all defenses to the
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application for a receiver as above provided, and hereby specifically consents
to such appointment without notice; but nothing herein contained is to be
construed to deprive the Mortgagee of any other right, remedy or privilege it
may now have under the law to have a receiver appointed. The provision for the
appointment of a receiver of the rents and profits and the assignment of such
rents and profits is made an express condition upon which the loan hereby
secured is made. The expenses incurred pursuant to the powers herein contained
shall be an additional indebtedness secured by the lien of this Mortgage.
15. Waiver of Stay, Extension, Moratorium Laws; Equity of
Redemption. Mortgagor shall not at any time (a) insist upon, plead or in any
manner whatever claim or take any benefit or advantage of any applicable present
or future stay, extension or moratorium law or (b) claim, take or insist upon
any benefit or advantage of any present or future law providing for the
valuation or appraisal of the Mortgaged Property prior to any sale or sales
thereof which may be made under or by virtue of the provisions hereof; and
Mortgagor hereby waives all benefit or advantage of any such law or laws.
Mortgagor, for itself and all who may claim under it, hereby waives any and all
rights and equities of redemption from sale under any order or decree of
foreclosure of this Mortgage and all notice or notices of seizure, and all right
to have the Mortgaged Property marshalled upon any foreclosure hereof. Mortgagee
shall not be obligated to pursue or exhaust its rights or remedies as against
any part of the Mortgaged Property before proceeding against any other part
thereof and Mortgagor hereby waives any right or claim of right to have
Mortgagee proceed in any particular order. Mortgagor hereby waives and releases
all errors, defects and imperfections in any proceedings instituted by Mortgagee
under this Mortgage.
16. Waiver of Default. No waiver of any default on the part of
Mortgagor or of any breach of any of the provisions of this Mortgage shall be
considered a waiver of any other or subsequent default or breach, and no delay
or omission in exercising or enforcing the rights and powers herein granted
shall be construed as a waiver of such rights and powers, and likewise no
exercise or enforcement of any rights or powers hereunder shall be held to
exhaust such rights and powers, and every such right and power may be exercised
from time to time.
17. Additional Rights of Mortgagee. Without affecting the
liability of Mortgagor or any other person (except any person expressly released
in writing) for payment of any indebtedness secured hereby or for performance of
any obligation contained herein,and without affecting the rights of Mortgagee
with respect to any security not expressly released in writing, Mortgagee may,
at any time and from time to time, either before or after the maturity of said
Note, and without notice or consent:
(a) Release any person liable for payment of all or
any part of the indebtedness or for performance of any obligation;
(b) Make any agreement extending the time or
otherwise altering the terms of payment of all or any part of the indebtedness,
or modifying or waiving any obligation, or subordinating, modifying or
otherwise dealing with the lien or charge hereof;
(c) Exercise or refrain from exercising or waive any
right Mortgagee may have;
(d) Accept additional security of any kind; or
(e) Release or otherwise deal with any property, real
or personal, securing the indebtedness, including all or any part of the
Mortgaged Property.
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18. Priority of Liens. Any agreement hereafter made by
Mortgagor and Mortgagee pursuant to this Mortgage shall be superior to the
rights of the holder of any intervening lien or encumbrance.
19. Financial Statements. At the option of Mortgagee,
Mortgagor shall provide Mortgagee with periodic statements of the operations of
and the financial condition of Mortgagor, the Mortgaged Property and any
guarantors of the indebtedness secured hereby, certified by Mortgagor, and if
Mortgagee shall require, by an independent certified public accountant to insure
that there has been no material adverse change in the condition (financial or
otherwise), business, prospects or operations of the Borrower. With the
foregoing, and at any other time upon Mortgagee's request, Mortgagor shall
furnish a rent schedule for the Mortgaged Property, certified by Mortgagor,
showing the name of each tenant, and for each tenant, the space occupied, the
lease expiration date, and the rent payable and the rent paid.
20. Assumption of Note and Mortgage. The loan represented by
this Mortgage and Note is personal to the Mortgagor and the Mortgagee made the
loan to the Mortgagor based upon the credit of the Mortgagor and the Mortgagee's
judgment of the ability of the Mortgagor to repay all sums due under this
Mortgage, and therefore this Mortgage may not be assumed by any subsequent
holder of an interest in the Mortgaged Property without Mortgagee's prior
written consent. If all or any part of the Mortgaged Property, or any interest
therein, is sold, conveyed, transferred (including a transfer by agreement for
deed or land contract), or further encumbered by Mortgagor without Mortgagee's
prior written consent, then in that event, Mortgagee may declare all sums
secured by this Mortgage immediately due and payable.
21. Hazardous Substances.
(a) For purposes of this Section 21, the terms
"Hazardous Substances" and "Environmental Laws" shall be defined as follows:
"Hazardous Substances" shall mean any hazardous waste,hazardous substance, toxic
substance, pollutant or contaminant as defined or listed under any of the
Environmental Laws, and shall include those elements or compounds which are
contained in the list of hazardous substances adopted by the United States
Environmental Protection Agency ("EPA") and the list of toxic pollutants
designated by Congress or the EPA. "Environmental Laws", shall mean any and all
federal, state or local statutes, laws, ordinances, codes, rules, orders or
regulations which govern, regulate or otherwise relate to the generation, use,
storage, transportation, handling, release, threat of release, emission,
discharge or disposal of any Hazardous Substances or any petroleum products
including gasoline, fuel oil, heating oil, motor oil and waste oil ("Petroleum
Products"), including without limitation the laws and regulations provided
pursuant to or under the (i) Resource Conservation and Recovery Act of 1976 as
amended, 42 U.S.C. Section 6901 et seq.; (ii) the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq. ("CERCLA") and (iii) the Clean Water Act, as amended, 33 U.S.C.
Section 1251 et seq.; and the Pennsylvania Hazardous Site Cleanup Act ("HSCA")
35 P.S. Section 6020.101 et seq.
(b) Mortgagor hereby represents and warrants the
following:
(1) Neither Mortgagor nor any users or
occupants of the Mortgaged Property ("Occupants") has ever used the Mortgaged
Property for the storage of any Hazardous Substances or Petroleum Products.
(2) Mortgagor and/or the Occupants have
obtained all permits, licenses and other authorizations which are required under
the Environmental Laws with respect to the condition, use and occupancy of the
Mortgaged Property and are in compliance in all material respects with all terms
and conditions of the required permits, licenses and authorizations and are
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also in compliance in all material respects with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws with respect to the
condition, use and occupancy of the Mortgaged Property.
(3) Neither Mortgagor nor the Occupants has
received notice of any past, present or future events, conditions,
circumstances, activities, practices, incidents, actions or plans with respect
to the condition, use or occupancy of the Mortgaged Property which may interfere
with, violate, or prevent compliance or continued compliance in any material
respect with the Environmental Laws or which may give rise to any material
common law or legal liabilities or otherwise form the basis of any material
claim, action, demand, suit, proceeding, hearing, study or investigation with
respect to the Mortgaged Property pursuant to the Environmental Laws.
(4) There is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice or demand letter,
notice of violation, investigation or proceeding pending or threatened with
respect to the condition, use or occupancy of the Mortgaged Property, pursuant
to the Environmental Laws.
(5) Mortgagor and the Occupants have
operated the Mortgaged Property and have at all times received, handled, used,
stored, treated, shipped and disposed of all Hazardous Substances and Petroleum
Products in strict compliance with the Environmental Laws.
(6) No Hazardous Substance or Petroleum
Products are present on, in or under the Mortgaged Property.
(c) Mortgagor agrees to comply with all Environmental
Laws and, with respect to Occupants, use its best efforts to assure that
Occupants comply with all Environmental Laws with respect to the condition, use
and occupancy of the Mortgaged Property.
(d) Mortgagor hereby agrees to defend and indemnify
Mortgagee and hold Mortgagee harmless from and against any and all losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorney's fees, costs of any settlement or judgment and claims of
any and every kind whatsoever paid, incurred or suffered by, or asserted
against, Mortgagee (hereinafter "Claims"), by any person or entity or
governmental agency for, with respect to, or as a direct or indirect result of,
the presence on, in or under; or the escape, seepage, leakage, spillage,
discharge, emission, release or threatened release on, in, under or from the
Mortgaged Property of any Petroleum Products or Hazardous Substances including,
without limitation, any "Claims" asserted or arising under the Environmental
Laws.
(e) If Mortgagor receives any notice of (i) the
happening of any material event involving the spill, release, leak, seepage,
discharge or cleanup of any Hazardous Substance or Petroleum Products on, in or
under the Mortgaged Property, or in connection with Mortgagor's or Occupants'
operations thereon or (ii) any complaint, order, citation or material notice
with regard to air emissions, water discharges, or any other environmental,
health or safety matter relating to the condition, use or occupancy of the
Mortgaged Property (an "Environmental Complaint") from any person or entity
(including without limitation the EPA) then Mortgagor shall immediately notify
Mortgagee orally and in writing of said notice.
(f) Mortgagee shall have the right but not the
obligation, and without limitation of Mortgagee's rights under this Mortgage to
enter onto the Mortgaged Property and to take such other action as it deems
necessary or advisable to clean up, remove, resolve or minimize the impact of,
or otherwise deal with, an Environmental Complaint or the presence on, in or
under the Mortgaged Property of any Hazardous Substances or Petroleum Products
which could result in an order, suit or other action against Mortgagor and/or
which, in the sole opinion of Mortgagee, could
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jeopardize its security under this Mortgage. All reasonable costs and expenses
incurred by Mortgagee in the exercise of any such rights shall be secured by
this Mortgage and shall be payable by Mortgagor upon demand.
(g) Mortgagee shall have the right, in its sole
discretion, to require Mortgagor to periodically (but not more frequently than
annually unless an Environmental complaint is then outstanding) perform (at
Mortgagor's expense) an environmental audit and, if deemed necessary to
Mortgagee, an environmental risk assessment, each of which must be satisfactory
to Mortgagee, with respect to the condition, use and occupancy of the Mortgaged
Property. Said audit and/or risk assessment must be undertaken by an
environmental consultant satisfactory to Mortgagee. Should Mortgagor fail to
perform said environmental audit or risk assessment within 30 days of the
Mortgagee's written request, Mortgagee shall have the right but not the
obligation to retain an environmental consultant to perform said environmental
audit and risk assessment. All costs and expenses incurred by Mortgagee in the
exercise of such rights shall be secured by this Mortgage and shall be payable
by Mortgagor upon demand or charged to Mortgagor's loan balance at the
discretion of Mortgagee.
22. Authority of Mortgagor. Mortgagor represents and warrants
that it has full power and authority to consummate the transactions contemplated
hereby.
23. Severability. If any one or more of the provisions
contained in this Mortgage for any reason shall be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Mortgage.
24. Successors. The covenants herein contained shall bind, and
the benefits and advantages shall inure to, the respective heirs, successors and
assigns of Mortgagor and Mortgagee. Whenever used, the singular name shall
include the plural, the singular, and the use of any gender shall be applicable
to all genders. When executed by two or more persons or entities as Mortgagor,
the parties so executing shall be bound jointly and severally. The term
"Mortgagee" shall also include any lawful owner, holder or pledgee of any
indebtedness secured hereby.
25. Security Agreement. This Mortgage shall be construed as
both a plant mortgage of real property and an assignment and pledge of leases,
rents, income, profits, issues, revenues, and it shall also constitute and serve
as a "Security Agreement" within the meaning of and shall create a security
interest under the Uniform Commercial Code of the Commonwealth of Pennsylvania.
The Mortgagee shall have all the rights with respect to all property encumbered
hereby afforded to the Mortgagee or Secured Party as the case may be under the
Uniform Commercial Code of the Commonwealth of Pennsylvania, in addition to, but
not in limitation of, the other rights afforded the Mortgagee by this Mortgage.
26. Further Assurances. Mortgagor will, at the cost of
Mortgagor, and without expense to Mortgagee, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as Mortgagee shall
from time to time require in order to preserve the priority of the lien of this
Mortgage or to facilitate the performance of the terms hereof.
27. Modification. No modification hereof shall be effective
between the Mortgagor and the Mortgagee unless it is in writing and duly
executed by the party to be bound.
28. Notices. Any notices made hereunder shall be made in
writing and shall be effective when delivered personally or when deposited in
the United States mail, postage prepaid, certified or registered mail, return
receipt requested, addressed as follows:
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To Mortgagee: PUBLIC SCHOOL EMPLOYES' RETIREMENT
SYSTEM
0 Xxxxx 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxx Xxxxx Real Estate Services, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
To Mortgagor: Xxxx X. XxXxxxxx
Polychem Corporation
Xxxxxxxx Xxxxxx xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
or at such other addresses as may be designated in writing from time to time.
29. Headings. The captions, headings and titles to sections of
this Agreement are for convenience of reference only, and shall in no way
restrict or affect, or be in any way an interpretation of, the provisions of any
such section of this Agreement.
30. Governing Law. This Mortgage shall be governed by and
enforced in accordance with the Laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the said Mortgagor has executed this
Mortgage on the day and year first above written.
WITNESS/ATTEST MORTGAGOR:
POLYCHEM CORPORATION, A PENNSYLVANIA
CORPORATION
By: /s/ Xxxx X. XxXxxxxx
--------------------------- ---------------------------------
XXXX X. XXXXXXXX, CHAIRMAN & CEO
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