EXHIBIT 10.10
THIS DOCUMENT WAS PREPARED
BY AND WHEN RECORDED, RETURN
BY MAIL TO:
BLANK ROME LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING dated March 5, 2003, (together with any amendments or
modifications hereto in effect from time to time, the "Mortgage"), between
WINCUP HOLDINGS, INC., having an address c/o Radnor Holdings Corporation, Three
Radnor Corporate Center, Xxxxx 000, 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx
00000 ("Mortgagor") and PNC BANK, NATIONAL ASSOCIATION, a national banking
association, having an address at 0000 Xxxxxx Xxxxxx, X0-X0000-00-0,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn, Xxxxxxx Xxxxxx, as agent (hereinafter,
"Mortgagee") for itself and each of the other financial institutions
(hereinafter, collectively, the "Lenders") which are and which become parties to
that certain Fourth Amended and Restated Revolving Credit and Security Agreement
(as same has been and may be amended, modified, renewed, extended, replaced or
substituted from time to time the "Loan Agreement" dated as of December 26, 2001
among Mortgagor, Radnor Chemical Corporation, StyroChem U.S., Ltd., Radnor
Holdings Corporation, Radnor Delaware II, Inc., StyroChem Delaware, Inc., WinCup
Texas, Ltd., StyroChem GP, L.L.C., StyroChem LP, L.L.C. WinCup GP, L.L.C.,
WinCup LP, L.L.C., as borrowers, and Mortgagee, as agent and the Lenders.
WITNESSETH:
WHEREAS, the Lenders have made available certain credit facilities to
Mortgagor and the other Borrowers (as defined in the Loan Agreement); and
WHEREAS, Mortgagor is the owner of fee simple title to certain tract of
land located in the City of Metuchen, County of Middlesex, State of New Jersey,
as more particularly described in Schedule "A" attached hereto and made a part
hereof (the "Real Estate"); and
WHEREAS, to induce Mortgagee and Lenders to make available and maintain
the credit facilities and to secure payment of the Obligations (as defined in
the Loan Agreement), Mortgagor has agreed to execute and deliver this Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, to secure to Mortgagee (i) the repayment of all
Obligations and all sums due under this Mortgage; (ii) the performance of all
terms, conditions and covenants set forth in the Loan Agreement and the Other
Documents; and (iii) all other obligations or indebtedness of Mortgagor or the
Borrowers to Mortgagee or Lenders of whatever kind or character and whenever
borrowed or incurred under the Loan Agreement or the Other Documents, including
without limitation, principal, interest (as the same may vary in accordance with
the terms of the Loan Agreement), fees, late charges and expenses, including
attorneys' fees (subsections (i), (ii) and (iii) collectively, the
"Liabilities"), Mortgagor has warranted, mortgaged, granted, conveyed, assigned,
remised and released and by these
presents DOES HEREBY WARRANT, MORTGAGE, GRANT, CONVEY, ASSIGN, REMISE AND
RELEASE TO MORTGAGEE, ITS SUCCESSORS AND ASSIGNS FOREVER, AND HEREBY GRANTS A
CONTINUING SECURITY INTEREST TO MORTGAGEE IN all of Mortgagor's right, title and
interest now owned or hereafter acquired in and to each of the following
(collectively, the "Property"):
(A) The Real Estate;
(B) Any and all buildings and improvements now or hereafter erected on,
under or over the Real Estate (the "Improvements");
(C) Any and all fixtures, machinery, equipment and other articles of real,
personal or mixed property, belonging to Mortgagor, at any time now or hereafter
installed in, attached to or situated in or upon the Real Estate, or the
Improvements, or used or intended to be used in connection with the Real Estate,
or in the operation of the Improvements, plant, business or dwelling situate
thereon, whether or not such real, personal or mixed property is or shall be
affixed thereto, and all replacements, substitutions and proceeds of the
foregoing (all of the foregoing herein called the "Service Equipment"),
including without limitation: (i) all appliances, furniture and furnishings; all
articles of interior decoration, floor, wall and window coverings; all office,
restaurant, bar, kitchen and laundry fixtures, utensils, appliances and
equipment; all supplies, tools and accessories; all storm and screen windows,
shutters, doors, decorations, awnings, shades, blinds, signs, trees, shrubbery
and other plantings; (ii) all building service fixtures, machinery and equipment
of any kind whatsoever; all lighting, heating, ventilating, air conditioning,
refrigerating, sprinkling, plumbing, security, irrigating, cleaning,
incinerating, waste disposal, communications, alarm, fire prevention and
extinguishing systems, fixtures, apparatus, machinery and equipment; all
elevators, escalators, lifts, cranes, hoists and platforms; all pipes, conduits,
pumps, boilers, tanks, motors, engines, furnaces and compressors; all dynamos,
transformers and generators; (iii) all building materials, building machinery
and building equipment delivered on site to the Real Estate during the course
of, or in connection with any construction or repair or renovation of the
Improvements; (iv) all parts, fittings, accessories, accessions, substitutions
and replacements therefor and thereof; and (v) all files, books, ledgers,
reports and records relating to any of the foregoing;
(D) Any and all leases, subleases, tenancies, licenses, occupancy
agreements or agreements to lease all or any portion of the Real Estate,
Improvements, Service Equipment or all or any other portion of the Property and
all extensions, renewals, amendments, modifications and replacements thereof,
and any options, rights of first refusal or guarantees relating thereto
(collectively, the "Leases"); all rents, income, receipts, revenues, security
deposits, escrow accounts, reserves, issues, profits, awards and payments of any
kind payable under the Leases or otherwise arising from the Real Estate,
Improvements, Service Equipment or all or any other portion of the Property
including, without limitation, minimum rents, additional rents, percentage
rents, parking, maintenance and deficiency rents (collectively, the "Rents");
all of the following personal property to the extent assignable (collectively
referred to as the "Contracts"): all accounts, general intangibles and contract
rights (including any right to payment thereunder, whether or not earned by
performance) of any nature relating to the Real Estate, Improvements, Service
Equipment or all or any other portion of the Property or the use, occupancy,
maintenance, construction, repair or operation thereof; all management
agreements, franchise agreements, utility agreements and deposits, building
service contracts, maintenance contracts, construction contracts and architect's
agreements; all maps, plans, surveys and specifications; all warranties and
guaranties; all permits, licenses and approvals; and all insurance policies,
books of account and other documents, of whatever kind or character, relating to
the use, construction upon, occupancy, leasing, sale or operation of the Real
Estate, Improvements, Service Equipment or all or any other portion of the
Property;
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(E) Any and all estates, rights, tenements, hereditaments, privileges,
easements, reversions, remainders and appurtenances of any kind benefiting or
appurtenant to the Real Estate, Improvements or all or any other portion of the
Property; all means of access to and from the Real Estate, Improvements or all
or any other portion of the Property, whether public or private; all streets,
alleys, passages, ways, water courses, water and mineral rights relating to the
Real Estate, Improvements or all or any other portion of the Property; all
rights of Mortgagor as declarant or unit owner under any declaration of
condominium or association applicable to the Real Estate, Improvements or all or
any other portion of the Property including, without limitation, all development
rights and special declarant rights; and all other claims or demands of
Mortgagor, either at law or in equity, in possession or expectancy of, in, or to
the Real Estate, Improvements or all or any other portion of the Property (all
of the foregoing described in this subsection E herein called the
"Appurtenances"); and
(F) Any and all "proceeds" of any of the above-described Real Estate,
Improvements, Service Equipment, Leases, Rents, Contracts and Appurtenances,
which term "proceeds" shall have the meaning given to it in the Uniform
Commercial Code, as amended, (the "Code") of the State in which the Real Estate
is located (collectively, the "Proceeds") and shall additionally include
whatever is received upon the use, lease, sale, exchange, transfer, collection
or other utilization or any disposition or conversion of any of the Real Estate,
Improvements, Service Equipment, Leases, Rents, Contracts and Appurtenances,
voluntary or involuntary, whether cash or non-cash, including, subject to the
terms of this Mortgage, proceeds of insurance and condemnation awards, rental or
lease payments, accounts, chattel paper, instruments, documents, contract
rights, general intangibles, equipment and inventory.
TO HAVE AND TO HOLD the above granted and conveyed Property unto and to
the proper use and benefit of Mortgagee, its successors and assigns, forever,
hereby expressly waiving and releasing any and all right, benefit, privilege,
advantage or exemption under and by virtue of an and all statutes and laws of
the State or other jurisdiction in which the Property is located providing for
the exemption of homesteads from sale on execution or otherwise.
PROVIDED ALWAYS, and these presents are upon the express condition, that
if (i) all the Liabilities are paid and performed in full, (ii) each and every
representation, warranty, agreement and covenant of this Mortgage and the Loan
Agreement and the Other Documents is complied with and abided by, and (iii) any
swap agreements secured hereunder have matured or been terminated, then this
Mortgage and the estate hereby created shall cease and be null and void and
Mortgagee shall release the lien of this Mortgage at the request and at the sole
cost and expense of Mortgagor. Mortgagor shall pay Mortgagee's out-of-pocket
costs incurred in connection with such release.
All capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Loan Agreement. To the extent of any inconsistency
between the terms hereof and the terms of the Loan Agreement, the terms of the
Loan Agreement shall control, except that with respect to the remedies of a
mortgagee under the law of the State of New Jersey, the terms of this Mortgage
shall govern; provided, however, that Mortgagor and Mortgagee expressly agree
that no conflict shall be deemed to exist where one document imposes a stricter
obligation than another, so long as compliance with the stricter obligation does
not make compliance with the less strict obligation impossible.
The present principal amount of the Obligations secured hereby is
$45,000,000; the maximum principal amount, including present and future
Liabilities, which may be secured hereby at any one time is $45,000,000, plus
interest, plus any disbursements and taxes and insurance on the Property and any
other sums advanced in accordance with the terms hereof or the Loan Agreement or
any of the Other Documents to protect the security of this Mortgage, the Loan
Agreement or any of the Other Documents, plus interest on such disbursements and
advances at the rates set forth in the Loan Agreement (the "Secured Amount").
For purposes of this Mortgage, so long as the aggregate principal balance of the
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Liabilities outstanding equals or exceeds the Secured Amount, the amount of the
Liabilities secured by this Mortgage shall at all times equal only the Secured
Amount. The Secured Amount shall be reduced only by the last and final sums that
are repaid with respect to the Liabilities so as to make the aggregate principal
balance of the Liabilities equal to an amount less than the Secured Amount, and
shall not be reduced by any intervening repayments of the Liabilities.
AND Mortgagor covenants and agrees with and represents to Mortgagee as
follows:
1. FUTURE ADVANCES; PROTECTION OF PROPERTY. This Mortgage shall secure any
additional loans as well as any and all present or future advances and
readvances under the Loan Agreement or any other Liabilities made by Mortgagee
or any Lender to or for the benefit of Mortgagor, Borrowers or the Property,
including, without limitation: (a) principal, interest, late charges, fees and
other amounts due under the Loan Agreement, the Other Documents or this
Mortgage; (b) all advances by Mortgagee to Mortgagor or any other person to pay
costs of erection, construction, alteration, repair, restoration, maintenance
and completion of any Improvements; (c) all advances made or costs incurred by
Mortgagee for the payment of real estate taxes, assessments or other
governmental charges, maintenance charges, insurance premiums, appraisal
charges, environmental inspection, audit, testing or compliance costs, and costs
incurred by Mortgagee for the enforcement and protection of the Property or the
lien of this Mortgage; and (d) all legal fees, costs and other expenses incurred
by Mortgagee by reason of any default or otherwise in connection with the
Liabilities. Mortgagor agrees that if, at any time during the term of this
Mortgage or following a foreclosure hereof (whether before or after the entry of
a judgment of foreclosure), Mortgagor fails to perform or observe any covenant
or obligation under this Mortgage including, without limitation, payment of any
of the foregoing, Mortgagee may (but shall not be obligated to) take such steps
as are reasonably necessary to remedy any such nonperformance or nonobservance
and provide payment thereof. All amounts advanced by Mortgagee shall be added to
the amount secured by this Mortgage and the Loan Agreement (and, if advanced
after the entry of a judgment of foreclosure, by such judgment of foreclosure),
and shall be due and payable on demand, together with interest at the Default
Rate set forth in the Note, such interest to be calculated from the date of such
advance to the date of repayment thereof.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
2.1. Payment and Performance. Mortgagor shall (a) pay to Mortgagee all sums
required to be paid by Mortgagor under the Loan Agreement and the Other
Documents, in accordance with their stated terms and conditions; (b) perform and
comply with all terms, conditions and covenants set forth in the Loan Agreement
and each of the Other Documents by which Mortgagor is bound; and (c) perform and
comply with all of Mortgagor's obligations and duties as landlord under any
Leases.
2.2. Seisin and Warranty. Mortgagor hereby warrants that (a) Mortgagor is
seized of an indefeasible estate in fee simple in, and warrants the title to,
the Real Estate and the Improvements subject only to those exceptions more
particularly described in the marked up title commitment No. S030189 issued by
Commonwealth Land Title Insurance Company and accepted by Mortgagee in
connection with this transaction (the "Permitted Exceptions") ; (b) Mortgagor
has the right, full power and lawful authority to warrant, mortgage, grant,
convey, assign, remise and release the same to Mortgagee in the manner and form
set forth herein; and (c) this Mortgage is a valid and enforceable first lien on
the Property. Mortgagor hereby covenants that Mortgagor shall (a) preserve such
title and the validity and priority of the lien of this Mortgage and shall
forever warrant and defend the same, subject to the Permitted Exceptions, to
Mortgagee against all lawful claims whatsoever; and (b) execute, acknowledge and
deliver all such further documents or assurances as may at any time hereafter be
required by Mortgagee to protect fully the lien of this Mortgage.
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2.3. Insurance.
(a) Mortgagor shall obtain and maintain at all times throughout the
term of this Mortgage the following insurance: (i) insurance in accordance with
the terms of the Loan Agreement; (ii) "All-Risk" fire and extended coverage
hazard insurance (non-reporting Commercial Property Policy with Special Cause of
Loss form) covering the Property in an aggregate amount not less than 100% of
the agreed upon full insurable replacement value of the tangible Property,
including coverage for loss of rents or business interruption and excluding
roads, foundations, parking areas, walkways and like improvements to the extent
customarily excluded from policies being issued by insurers of similarly
situated properties; (iii) during the course of any construction,
reconstruction, remodeling or repair of any Improvements, builders' all-risk
extended coverage insurance (non-reporting Completed Value with Special Cause of
Loss form) in amounts based upon the completed replacement value of the
Improvements (excluding roads, foundations, parking areas, paths, walkways and
like improvements) and endorsed to provide that occupancy by any person shall
not void such coverage; and (iv) if the Improvements are required to be insured
pursuant to the National Flood Insurance Reform Act of 1994, and the regulations
promulgated thereunder, flood insurance in an amount at least equal to the
lesser of the agreed upon full insurable replacement value of the Improvements
or the maximum limit of coverage available.
(b) Each insurance policy required under this Section shall: (i) be
written by an insurance company authorized or licensed to do business in the
state within which the Real Estate is located having an Xxxxxx X. Best Company,
Inc. rating of "A-" or higher and a financial size category of not less than IX;
(ii) be for terms of a least one year, with premium prepaid; (iii) be subject to
the reasonable approval of Mortgagee as to insurance companies, amounts,
content, forms of policies and expiration dates; and (iv) name Mortgagee, its
successors and assigns: (1) as an additional insured under all liability
insurance policies, and (2) as the first mortgagee, under a standard
non-contributory mortgagee clause, on all property insurance policies and all
loss of rents or loss of business income insurance policies.
(c) Mortgagor further agrees that each insurance policy: (i) shall
provide at least thirty (30) days' prior written notice to Mortgagee prior to
any policy reduction or cancellation for any reason; (ii) shall contain an
endorsement or agreement by the insurer that any loss shall be payable to
Mortgagee in accordance with the terms of such policy notwithstanding any act or
negligence of Mortgagor which might otherwise result in forfeiture of such
insurance; (iii) shall waive all rights of setoff, counterclaim, deduction or
subrogation against Mortgagor; and (iv) shall exclude Mortgagee from the
operation of any coinsurance clause.
(d) At least thirty (30) days prior to the expiration of any insurance
policy, Mortgagor shall furnish evidence satisfactory to Mortgagee that such
policy has been renewed or replaced or is no longer required.
2.4. Transfer of Title. Except as expressly provided in the Loan Agreement,
without the prior written consent of Mortgagee in each instance, Mortgagor shall
not cause or permit any transfer of the Property or any part thereof, whether
voluntarily, involuntarily (other than by reason of condemnation) or by
operation of law, nor shall Mortgagor enter into any agreement or transaction to
transfer, or accomplish in form or substance a transfer, of the Property. A
"transfer" of the Property includes: (a) the direct or indirect sale, transfer
or conveyance of the Property or any portion thereof or interest therein; (b)
the execution of an installment sale contract or similar instrument affecting
all or any portion of the Property; (c) if Mortgagor, or any general partner or
member of Mortgagor, is a corporation, partnership, limited liability company or
other business entity, the transfer (whether in one transaction or a series of
transactions) of any stock, partnership, limited liability company or other
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ownership interests in such corporation, partnership, limited liability company
or entity other than the transfer of any such interest between or among the
members of Mortgagor, or to the estate of its current owner, upon the death of
such owner; (d) if Mortgagor, or any general partner or member of Mortgagor, is
a corporation, the creation or issuance of new stock by which an aggregate of
more than 10% of such corporation's stock shall be vested in a party or parties
who are not now stockholders; and (e) an agreement by Mortgagor leasing all or a
substantial part of the Property for other than actual occupancy by a space
tenant thereunder or a sale, assignment or other transfer of or the grant of a
security interest in and to any Leases.
2.5. No Encumbrances. Except as permitted in the Loan Agreement and for the
Permitted Exceptions, Mortgagor shall not create or permit to exist any
mortgage, pledge, lien, security interest (including, without limitation, a
purchase money security interest), encumbrance, attachment, levy,
distraint or other judicial process on or against the Property or any part
thereof (including, without limitation, fixtures and other personalty), whether
superior or inferior to the lien of this Mortgage, without the prior written
consent of Mortgagee.
2.6. Removal of Fixtures. Except as permitted in the Loan Agreement,
Mortgagor shall not remove or permit to be removed from the Real Estate any
fixtures presently or in the future owned by Mortgagor as the term "fixtures" is
defined by the law of the state where the Property is located (unless such
fixtures have been replaced with similar fixtures of equal or greater utility
and value).
2.7. Compliance with Applicable Laws. Mortgagor agrees to observe, conform
and comply, and to cause its tenants to observe, conform and comply in all
material respects with all applicable federal, state, county, municipal and
other governmental or quasi-governmental laws, rules, regulations, ordinances,
codes, requirements, covenants, conditions, orders, licenses, permits, approvals
and restrictions, including without limitation, Environmental Laws (as defined
below) and the Americans with Disabilities Act of 1990 (collectively, the "Legal
Requirements"), now or hereafter affecting all or any part of the Property, its
occupancy or the business or operations now or hereafter conducted thereon and
the personalty contained therein, within such time as required by such Legal
Requirements to the extent the non-observance, non-conformance or non-compliance
with the Legal Requirements could have a Material Adverse Effect on Mortgagor.
Mortgagor represents and warrants that the Property currently is, in compliance
in all material respects with all Legal Requirements applicable to the Property.
2.8. Damage, Destruction and Condemnation.
(a) If all or any part of the Property shall be damaged or destroyed,
or if title to or the temporary use of the whole or any part of the Property
shall be taken or condemned by a competent authority for any public or
quasi-public use or purpose, there shall be no abatement or reduction in the
amounts payable by Mortgagor under the Loan Agreement and Mortgagor shall
continue to be obligated to make such payments.
(b) If all or any part of the Property is partially or totally damaged
or destroyed, Mortgagor shall give prompt notice thereof to Mortgagee, and
Mortgagee may make proof of loss if not made promptly by Mortgagor. Mortgagor
hereby authorizes and directs any affected insurance company to make payment in
excess of $100,000 under such insurance, including return of unearned premiums,
to Mortgagee instead of to Mortgagor and Mortgagee jointly, and Mortgagor
appoints Mortgagee as Mortgagor's attorney-in-fact to endorse any draft thereof,
which appointment, being for security, is coupled with an interest and
irrevocable. Mortgagee is hereby authorized and empowered by Mortgagor to
settle, adjust or compromise, any claim for loss, damage or destruction to the
Property if Mortgagor does not promptly settle, adjust or compromise such claim.
Mortgagor shall pay all costs of collection of insurance proceeds payable on
account of such damage or destruction. Mortgagor shall have no claim against the
insurance
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proceeds, or be entitled to any portion thereof, and all rights to the insurance
proceeds are hereby assigned to Mortgagee as security for payment of the
Liabilities. Mortgagee shall pay or apply all or any part of the insurance
proceeds in accordance with the terms of the Loan Agreement.
(c) Promptly upon obtaining knowledge of the institution of any
proceeding for the condemnation of all or any part of the Property, Mortgagor
shall give notice to Mortgagee. Mortgagor shall, at its sole cost and expense,
diligently prosecute any such proceeding and shall consult with Mortgagee, its
attorneys and experts, and shall cooperate with it in the defense of any such
proceeding. Mortgagee may participate in any such proceeding and Mortgagor shall
from time to time deliver to Mortgagee all instruments requested by it to permit
such participation. Mortgagor shall not, without Mortgagee's prior written
consent, enter into any agreement (i) for the taking or conveyance in lieu
thereof of all or any part of the Property, or (ii) to compromise, settle or
adjust any such proceeding. All awards and proceeds of condemnation in excess of
$100,000 are hereby assigned to Mortgagee, and Mortgagor, upon request by
Mortgagee, agrees to make, execute and deliver any additional assignments or
documents necessary from time to time to enable Mortgagee to collect the same.
Such awards and proceeds shall be paid or applied by Mortgagee, in its sole
discretion, to: (i) Obligations, in such order as Mortgagee shall determine, in
its sole discretion; (ii) restoration, replacement or repair of the Property
subject to such conditions as Mortgagee determines to be appropriate and as are
customarily imposed by institutional lenders for similar properties; or (iii)
Mortgagor.
(d) Nothing herein shall relieve Mortgagor of its duty to repair,
restore, rebuild or replace the Property following damage or destruction or
partial condemnation if no or inadequate insurance proceeds or condemnation
awards are available to defray the cost of repair, restoration, rebuilding or
replacement.
2.9. Required Notices. Mortgagor shall notify Mortgagee within five (5)
days of: (a) receipt of any notice from any governmental or quasi-governmental
authority relating to the structure, use or occupancy of the Property or
alleging a violation of any Legal Requirement; (b) a substantial change in the
occupancy or use of all or any part of the Property; (c) receipt of any default
notice from the holder of any lien or security interest in all or any part of
the Property; (d) commencement of any litigation that could have a Material
Adverse Effect on Mortgagor or the value of the Property; (e) a pending or
threatened condemnation of all or any part of the Property; (f) a fire or other
casualty causing damage in excess of $10,000 to all or any part of the Property;
(g) receipt of any notice with regard to any Release of Hazardous Substances (as
such terms are defined below) or any other environmental matter which could have
a Material Adverse Effect on the Property or Mortgagor's interest therein; (h)
receipt of any 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 Property or at any
other site owned or operated by Mortgagor; (i) receipt of any notice from any
tenant of all or any part of the Property alleging a default, failure to perform
or any right to terminate its lease or to set-off rents; or (j) receipt of any
notice of the imposition of, or of threatened or actual execution on, any lien
on or security interest in all or any part of the Property.
3. SECURITY AGREEMENT. This Mortgage constitutes a financing statement
filed as a fixture filing in the County Recorder's Office (the "Official
Records") in which the Real Estate is situated with respect to any and all
fixtures included within the term "Property" as used herein, and with respect to
any goods or other personal property that may now be or hereafter become such
fixtures. For purposes of such financing statement, Mortgagor is the "debtor"
and Mortgagee is the "secured party", and their respective mailing addresses are
those set out in this Mortgage. Mortgagor hereby grants to Mortgagee a security
interest in the personal and other property (other than real property) included
in the Property, and all replacements of, substitutions for, and additions to,
such property, and the proceeds thereof. Mortgagor shall, at Mortgagor's own
expense, execute, deliver, file and refile any financing or
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continuation statements or other security agreements Mortgagee may reasonably
require from time to time to perfect, confirm or maintain the lien of this
Mortgage with respect to such property. A photocopy of an executed financing
statement shall be effective as an original. Without limiting the foregoing, if
Mortgagor fails to execute, deliver and file such instruments within ten (10)
days after written demand by Mortgagee, Mortgagor hereby irrevocably appoints
Mortgagee attorney-in-fact for Mortgagor to execute, deliver and file such
instruments for or on behalf of Mortgagor at Mortgagor's expense, which
appointment, being for security, is coupled with an interest and shall be
irrevocable.
4. ASSIGNMENT OF LEASES.
4.1. Mortgagor hereby absolutely, presently and unconditionally conveys,
transfers and assigns to Mortgagee all of Mortgagor's right, title and interest,
now existing or hereafter arising, in and to the Leases and Rents.
Notwithstanding that this assignment is effective immediately, so long as no
Event of Default exists, Mortgagor shall have the privilege under a revocable
license granted hereby to operate and manage the Property and to collect, as
they become due, but not prior to accrual, the Rents. Mortgagor shall receive
and hold such Rents in trust as a fund to be applied, and Mortgagor hereby
covenants and agrees that such Rents shall be so applied, first to the
operation, maintenance and repair of the Property and the payment of interest,
principal and other sums becoming due under the Liabilities, before retaining
and/or disbursing any part of the Rents for any other purpose. The license
herein granted to Mortgagor shall automatically, without notice or any other
action by Mortgagee, terminate upon the occurrence of an Event of Default, and
all Rents subsequently collected or received by Mortgagor shall be held in trust
by Mortgagor for the sole and exclusive benefit of Mortgagee. Nothing contained
in this Section 4.1, and no collection by Mortgagee of Rents, shall be construed
as imposing on Mortgagee any of the obligations of the lessor under the Leases.
4.2. Mortgagor shall timely perform all of its obligations under the
Leases. Mortgagor represents and warrants that: (a) Mortgagor has title to and
full right to assign presently, absolutely and unconditionally the Leases and
Rents; (b) no other assignment of any interest in any of the Leases or Rents has
been made; (c) there are no leases or agreements to lease all or any portion of
the Property now in effect except the Leases, true and complete copies of which
have been furnished to Mortgagee, and no written or oral modifications have been
made thereto; (d) there is no existing default by Mortgagor or by any tenant
under any of the Leases, nor has any event occurred which due to the passage of
time, the giving or failure to give notice, or both, would constitute a default
under any of the Leases and, to the best of Mortgagor's knowledge, no tenant has
any defenses, set-offs or counterclaims against Mortgagor; (e) the Leases are in
full force and effect; and (f) Mortgagor has not accepted Rent under any Lease
more than thirty (30) days in advance of its accrual, and payment thereof has
not otherwise been forgiven, discounted or compromised.
5. DECLARATION OF NO OFFSET. Mortgagor represents to Mortgagee that Mortgagor
has no knowledge of any offsets, counterclaims or defenses to the Liabilities
either at law or in equity. Mortgagor shall, within ten (10) days after written
request, furnish to Mortgagee or Mortgagee's designee a written statement in
form reasonably satisfactory to Mortgagee stating the amount due under the
Liabilities and whether, to Mortgagor's knowledge, there are offsets or defenses
against the same, and if so, the nature and extent thereof.
6. ENVIRONMENTAL MATTERS.
6.1. Definitions. As used herein, "Environmental Laws" shall mean all
applicable existing or future federal, state and local statutes, ordinances,
regulations, rules, executive orders, standards and requirements, including the
requirements imposed by common law, concerning or relating to industrial hygiene
and the protection of health and the environment including but not limited to:
(a) those relating to the generation, manufacture, storage, transportation,
disposal, release, emission or discharge of
Page 8
Hazardous Substances (as hereinafter defined); (b) those in connection with the
construction, fuel supply, power generation and transmission, waste disposal or
any other operations or processes relating to the Property; and (c) those
relating to the atmosphere, soil, surface and ground water, wetlands, stream
sediments and vegetation on, under, in or about the Property. Any terms
mentioned herein which are defined in any Environmental Law shall have the
meanings ascribed to such terms in said laws; provided, however, that if any of
such laws are amended so as to broaden any term defined therein, such broader
meaning shall apply subsequent to the effective date of such amendment.
6.2. Representations, Warranties and Covenants. Except as disclosed in the
Phase I environmental report prepared by URS Corporation, Mortgagor represents,
warrants, covenants and agrees as follows:
(a) To Mortgagor's knowledge, neither Mortgagor nor the Property or
any occupant thereof is in violation of or subject to any existing, pending or
threatened investigation or inquiry by any governmental authority pertaining to
any Environmental Law. Mortgagor shall not cause or permit the Property to be in
violation in any material respect of, or do anything which would subject the
Property to any remedial obligations under, any Environmental Law, and shall
promptly notify Mortgagee in writing of any existing, pending or threatened
investigation or inquiry of which Mortgagor has knowledge by any governmental
authority in connection with any Environmental Law. In addition, Mortgagor shall
provide Mortgagee with copies of any and all material written communications
with any governmental authority in connection with any violation of any
Environmental Law, concurrently with Mortgagor's giving or promptly after
Mortgagor's receiving of same.
(b) There are no visible signs of any release, spill, discharge, leak,
disposal or emission (individually a "Release" and collectively, "Releases") of
any Hazardous Material, Hazardous Substance or Hazardous Waste, including
gasoline, petroleum products, explosives, toxic substances, solid wastes and
radioactive materials (collectively, "Hazardous Substances") at, upon, under or
within the Property. During the term of this Mortgage, to the extent required by
any Environmental Laws, Mortgagor shall remove or remediate any Release at the
Property promptly upon discovery at its sole cost and expense.
(c) To Mortgagor's knowledge, the Property has never been used by the
previous owners and/or operators nor has or will be used by Mortgagor during the
term of this Mortgage to refine, produce, store, handle, transfer, process,
transport, generate, manufacture, heat, treat, recycle or dispose of Hazardous
Substances, except for such quantities as are handled in accordance with
applicable manufacturers' instructions and Environmental Laws and in proper
storage containers as are necessary for the operation of the commercial business
of Mortgagor or its tenants ("Permitted Substances").
(d) The Property: (i) is being and has been operated by Mortgagor in
compliance in all material respects with all Environmental Laws, and all permits
required thereunder have been obtained and complied with in all material
respects; and (ii) does not have any Hazardous Substances present excepting
Permitted Substances.
(e) Mortgagor will and will cause its tenants to operate the Property
in compliance in all material respects with all Environmental Laws and, other
than Permitted Substances, will not place or permit to be placed any Hazardous
Substances on the Property.
(f) During Mortgagor's period of ownership of the Real Estate, and to
Mortgagor's knowledge prior thereto, no lien has been attached to or threatened
to be imposed upon the Property, and, to Mortgagor's knowledge, there is no
basis for the imposition of any such lien based on any governmental action under
Environmental Laws. In the event that any environmental lien is filed against
the Property, Mortgagor shall, within (30) days from the date that Mortgagor is
given notice of such lien
Page 9
(or within such shorter period of time as is appropriate in the event that steps
have commenced to have the Property sold), either: (i) pay the claim and remove
the lien from the Property; or (ii) furnish a cash deposit, bond or other
security reasonably satisfactory in form and substance to Mortgagee in an amount
sufficient to discharge the claim out of which the lien arises.
6.3. Right to Inspect and Cure. To the extent provided in the Loan
Agreement, Mortgagee shall have the right to conduct or have conducted by its
agents or contractors such environmental inspections, audits and tests as
Mortgagee shall deem necessary or advisable from time to time at the sole cost
and expense of Mortgagor.
7. EVENTS OF DEFAULT. Each of the following shall constitute a default (each,
an "Event of Default") hereunder:
7.1. Non-payment when due of any sum required to be paid to Mortgagee under
the Loan Agreement or any of the Other Documents, including without limitation,
principal and interest;
7.2. A breach by Mortgagor of any other term, covenant, condition,
obligation or agreement under this Mortgage, and the continuance of such breach
for a period of thirty (30) days after written notice thereof shall have been
given to Mortgagor; or
7.3. An Event of Default under the Loan Agreement or any of the Other
Documents;
8. REMEDIES. If an Event of Default shall have occurred, Mortgagee may take
any of the following actions:
8.1. Acceleration. Mortgagee may exercise all rights and remedies under the
Loan Agreement.
8.2. Possession. Mortgagee may enter upon and take possession of the
Property, with or without legal action, lease the Property, collect therefrom
all rentals and, after deducting all out-of-pocket costs of collection and
administration expense, apply the net rentals to any one or more of the
following items in such manner and in 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, to the maintenance, repair or restoration of the
Property, or on account of the Liabilities. Mortgagee is given full authority to
do any act which Mortgagor could do in connection with the management and
operation of the Property. This covenant is effective either with or without any
action brought to foreclose this Mortgage and without applying for a receiver of
such rents. In addition to the foregoing, upon the occurrence of an Event of
Default, Mortgagor shall pay monthly in advance to Mortgagee or to any receiver
appointed to collect said rents the fair and reasonable rental value for
Mortgagor's use and occupation of the Property, and upon default in any such
payment Mortgagor shall vacate and surrender the possession of the Property to
Mortgagee or to such receiver. If Mortgagor does not vacate and surrender the
Property then Mortgagor may be evicted by summary proceedings.
8.3. Foreclosure. Mortgagee may institute any one or more actions of
mortgage foreclosure against all or any part of the Property, or take such other
action at law, equity or by contract 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 Liabilities. The unpaid balance of any judgment shall bear
interest at the greater of (a) the statutory rate provided for judgments, or (b)
the Default Rate. Without limiting the foregoing, Mortgagee may foreclose this
Mortgage and exercise its rights as a secured party for all or any portion of
the Liabilities which are then due and payable, subject to the continuing lien
of this Mortgage for the balance not then
Page 10
due and payable. In case of any sale of the Property by judicial proceedings,
the Property may be sold in one parcel or in such parcels, manner or order as
Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone
claiming by, through or under it, hereby agrees that Mortgagee shall in no
manner, in law or in equity, be limited, except as herein provided, in the
exercise of its rights in the Property or in any other security hereunder or
otherwise appertaining to the Liabilities or any other obligation secured by
this Mortgage, whether by any statute, rule or precedent which may otherwise
require said security to be marshalled in any manner and Mortgagor, for itself
and others as aforesaid, hereby expressly waives and releases any right to or
benefit thereof. The failure to make any tenant a defendant to a foreclosure
proceeding shall not be asserted by Mortgagor as a defense in any proceeding
instituted by Mortgagee to collect the Liabilities or any deficiency remaining
unpaid after the foreclosure sale of the Property.
8.4. Appointment of Receiver. Upon the occurrence of an Event of Default,
Mortgagee, as a matter of right and without regard to the then value of the
Mortgaged Premises or the adequacy of any security for the Liabilities, shall
have the right to apply to any court having jurisdiction to appoint a receiver
or receivers for the Property, and Mortgagor hereby irrevocably consents to such
appointment. Any such receiver or receivers shall have all the usual powers and
duties of receivers in like or similar cases and all the powers and duties of
Mortgagee in case of entry as provided herein. Mortgagor agrees to
promptly deliver to any such receiver all Leases, Rents, Contracts, documents,
financial data and other information requested by such receiver in connection
with the Property and, without limiting the foregoing, Mortgagor hereby
authorizes Mortgagee to deliver to any such receiver any or all of the Leases,
Rents, Contracts, documents, data and information in Mortgagee's possession
relating to the Property.
8.5. Rights as a Secured Party. Mortgagee shall have, in addition to other
rights and remedies available at law or in equity, the rights and remedies of a
secured party under the Code. Mortgagee may elect to foreclose such of the
Property as then comprise fixtures pursuant either to the law applicable to
foreclosure of an interest in real estate or to that applicable to personal
property under the Code. To the extent permitted by law, Mortgagor waives the
right to any stay of execution and the benefit of all exemption laws now or
hereafter in effect.
8.6. Excess Monies. Mortgagee may apply on account of the Liabilities any
unexpended monies still retained by Mortgagee that were paid by Mortgagor to
Mortgagee: (a) for the payment of, or as security for the payment of taxes,
assessments or other governmental charges, insurance premiums, or any other
charges; or (b) to secure the performance of some act by Mortgagor.
8.7. Other Remedies. Mortgagee shall have the right, from time to time, to
bring an appropriate action to recover any sums required to be paid by Mortgagor
under the terms of this Mortgage, as they become due, without regard to whether
or not any other Liabilities 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. In addition, Mortgagee shall have the right to set-off all or any
part of any amount due by Mortgagor to Mortgagee under any of the Liabilities,
against any indebtedness, liabilities or obligations owing by Mortgagee in any
capacity to Mortgagor, including any obligation to disburse to Mortgagor any
funds or other property on deposit with or otherwise in the possession, control
or custody of Mortgagee.
8.8. Attorney-In-Fact. Mortgagor hereby constitutes Mortgagee its
attorney-in-fact with full power of substitution to take possession of the
Property upon any Event of Default and, as Mortgagee in its sole discretion
deems necessary or proper, to execute and deliver all instruments required by
Mortgagee to accomplish the disposition of the Property; this power of attorney
is a power coupled with an interest and is irrevocable while any of the
Liabilities are outstanding.
Page 11
8.9. Waiver. Mortgagor waives, to the extent permitted by law, (a) the
benefit of all laws now existing or that may hereafter be enacted providing for
any appraisement before sale of any portion of the Property, (b) all rights of
reinstatement, redemption, valuation, appraisement, homestead, moratorium,
exemption, extension, stay of execution, notice of election to mature or declare
due the whole of the Liabilities in the event of foreclosure of the liens hereby
created, (c) all rights and remedies which Mortgagor may have or be able to
assert by reason of the laws of the State of New Jersey pertaining to the rights
and remedies of sureties, and (d) any rights, legal or equitable, to require
marshaling of assets or to require foreclosure sales in a particular order.
Without limiting the generality of the preceding sentence, Mortgagor, on its own
behalf and on behalf of each and every person acquiring any interest in or title
to the Property subsequent to the date of this Mortgage, hereby irrevocably
waives, to the extent permitted by law, any and all rights of reinstatement or
redemption from sale or from or under any order, judgment or decree of
foreclosure of this Mortgage or under any sale pursuant to any statute order
decree or judgment of any court. Mortgagor, for itself and for all persons
hereafter claiming through or under it or who may at any time hereafter become
holders of liens junior to the lien of this Mortgage, hereby expressly waives
and releases all rights to direct the order in which any of the Property shall
be sold in the event of any sale or sales pursuant hereto and to have any of the
Property and/or any other property now or hereafter constituting security for
any of the indebtedness secured hereby marshaled upon any foreclosure of this
Mortgage or of any other security for any of said indebtedness. Mortgagee shall
have the right to determine the order in which any or all of the Property shall
be subjected to the remedies provided herein. Mortgagee shall have the right to
determine the order in which any or all portions of the Liabilities are
satisfied from the proceeds realized upon the exercise of the remedies provided
herein.
8.10. No Liability on Mortgagee. Notwithstanding anything contained in this
Mortgage, Mortgagee shall not be obligated to perform or discharge, and does not
undertake to perform or discharge, any obligation, duty or liability of
Mortgagor, whether under this Mortgage, under any of the Leases, under any
Contract or under any other Property, and Mortgagor shall and does hereby agree
to indemnify against and hold Mortgagee harmless of and from: any and all
liabilities, losses or damages which Mortgagee may incur or pay under or with
respect to any of the Property or under or by reason of its exercise of rights
hereunder; and any and all claims and demands whatsoever which may be asserted
against it by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants or agreements contained in any
of the Property or in any of the contracts, documents or instruments evidencing
or creating any of the Property. Mortgagee shall not have responsibility for the
control, care, management or repair of the Property or be responsible or liable
for any negligence in the management, operation, upkeep, repair or control of
the Property resulting in loss, injury or death to any tenant, licensee,
employee, stranger or other person. No liability shall be enforced or asserted
against Mortgagee in its exercise of the powers herein granted to it, and
Mortgagor expressly waives and releases any such liability. Should Mortgagee
incur any such liability, loss or damage under any of the Leases or under or by
reason hereof, or in the defense of any claims or demands, Mortgagor agrees to
reimburse Mortgagee within ten (10) days after demand for the full amount
thereof, including costs, expenses and reasonable attorneys' fees.
Notwithstanding the foregoing, Mortgagee shall not be released of liability nor
entitled to be indemnified by Mortgagor for any liability, loss or damage to the
extent arising from any act or omission of Mortgagee after Mortgagee takes
physical possession of the Property or becomes owner of the Property.
9. MISCELLANEOUS.
9.1. Notices. All notices and communications under this Mortgage shall be
in writing and shall be given by either (a) hand-delivery, (b) first class mail
(postage prepaid), or (c) reliable overnight commercial courier (charges
prepaid), to the addresses listed in the preamble of this Mortgage. Notice shall
be deemed to have been given and received: (a) if by hand delivery, upon
delivery; (b) if by mail,
Page 12
three (3) business days after the date first deposited in the United States
mail; and (c) if by overnight courier, on the date scheduled for delivery. A
party may change its address by giving written notice to the other party as
specified herein.
9.2. No Property Manager Lien. Any property management agreement for or
relating to all or any part of the Property, whether now in effect or entered
into hereafter by Mortgagor or on behalf of Mortgagor, shall contain a
subordination provision whereby the property manager forever and unconditionally
subordinates to the lien of this Mortgage any and all mechanic's lien rights and
claims that it or anyone claiming through or under it may have at any time
pursuant to any statute or law. Such property management agreement or a short
form thereof, including such subordination, shall, at Mortgagee's request, be
recorded with the office of the recorder of deeds for the county in which the
Property are located. Mortgagor's failure to cause any of the foregoing to occur
shall constitute an Event of Default under this Mortgage.
9.3. Remedies Cumulative. The rights and remedies of Mortgagee as provided
in this Mortgage, in the Loan Agreement or in any Other Document shall be
cumulative and concurrent, may be pursued separately, successively or together,
may be exercised as often as occasion therefor shall arise, and shall be in
addition to any other rights or remedies conferred upon Mortgagee at law or in
equity. The failure, at any one or more times, of Mortgagee to assert the right
to declare the Liabilities due, grant any extension of time for payment of the
Liabilities, take other or additional security for the payment thereof, release
any security, change any of the terms of the Loan Agreement or any of the Other
Documents, or waive or fail to exercise any right or remedy under the Loan
Agreement or any Other Document shall not in any way affect this Mortgage or the
rights of Mortgagee.
9.4. No Implied Waiver. Mortgagee shall not be deemed to have modified or
waived any of its rights or remedies hereunder unless such modification or
waiver is in writing and signed by Mortgagee, and then only to the extent
specifically set forth therein. A waiver in one event shall not be construed as
continuing or as a waiver of or bar to such right or remedy on a subsequent
event.
9.5. Partial Invalidity. The invalidity or unenforceability of any one or
more provisions of this Mortgage shall not render any other provision invalid or
unenforceable. In lieu of any invalid or unenforceable provision, there shall be
added automatically a valid and enforceable provision as similar in terms to
such invalid or unenforceable provision as may be possible.
9.6. Binding Effect. The covenants, conditions, waivers, releases and
agreements contained in this Mortgage shall bind, and the benefits thereof shall
inure to, the parties hereto and their respective heirs, executors,
administrators, successors and assigns and are intended and shall be held to be
real covenants running with the land; provided, however, that, except in
connection with a transfer expressly permitted by the Loan Agreement or
consented to in writing by Mortgagee, this Mortgage cannot be assigned by
Mortgagor without the prior written consent of Mortgagee, and any such
assignment or attempted assignment by Mortgagor shall be void and of no effect
with respect to Mortgagee.
9.7. Modifications. This Mortgage may not be supplemented, extended,
modified or terminated except by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought.
9.8. Governing Law. This Mortgage shall be governed, construed,
interpreted and enforced in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of law, except as to
matters relating to the creation, perfection and enforcement of the liens on and
security interests in the Property (including, without limitation, requests for
injunctive relief or appointment of a receiver) which shall be governed by the
laws of the state where the Property is located.
Page 13
9.9. Non-Merger. In the event Mortgagee shall acquire title to the
Property by conveyance from Mortgagor or as a result of foreclosure, this
Mortgage shall not merge in the fee estate of the Property but shall remain and
continue as an existing and enforceable lien for the Liabilities secured hereby
until the same shall be released of record by Mortgagee in writing.
10. STATE SPECIFIC PROVISIONS
10.1. Principles of Construction. In the event of any inconsistencies
between the terms and conditions of this Article and the other terms and
conditions of this Mortgage, the terms and conditions of this Article shall
control and be binding.
10.2. Future Advances. Without limiting any other provision of this
Mortgage, Mortgagee may make future advances and this Mortgage shall also secure
repayment of any future advances made by Mortgagee and the unpaid balances of
other advances made, with respect to the Property, for the payment of taxes,
assessments, maintenance, charges, insurance premiums or costs similar or
dissimilar incurred for the protection of the Property or for the lien of this
Mortgage, expenses incurred by Mortgagee, or advances made under a construction
loan, if any, to enable the completion of the improvements for which the
construction loan was originally made.
10.3. Modification of Mortgage. This Mortgage is subject to modification
pursuant to N.J.S.A. Sections 46:9-8.1 and 8.2. and shall be entitled to the
priority provisions thereof.
Page 14
IN WITNESS WHEREOF, Mortgagor, intending to be legally bound, has duly
executed and delivered this Mortgage as of the day and year first above written.
MORTGAGOR:
WINCUP HOLDINGS, INC.
WITNESS: By: By:/s/ X. Xxxxxxxxx Xxxxxxxx
--------------------------------
Name: X. Xxxxxxxxx Hastings
Title: Sr. Vice President
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Page 15
COMMONWEALTH OF PENNSYLVANIA )
) SS.
COUNTY OF PHILADELPHIA )
I CERTIFY that X. Xxxxxxxxx Xxxxxxxx, the Sr. Vice President of WINCUP
HOLDINGS, INC., a Delaware corporation, personally appeared before me, who I am
satisfied to be the person who signed the foregoing instrument, and acknowledged
that he was authorized to execute the same as the act of said corporation.
GIVEN under my hand and official seal this 5th day of March, 2003.
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Notary Public
Commission expires ___________, ____. [SEAL]
NOTARIAL SEAL
XXXXXXX X. XXXXXXXXX, Notary Public
City of Philadelphia, Phila. County
My Commission Expires September 8, 2005
[SCHEDULE A OMITTED]
