EXHIBIT 10.14
THIS MORTGAGE IS AN OPEN-END MORTGAGE AND SECURES FUTURE ADVANCES
(All notices to be given to Mortgagee pursuant to
42 Pa. C.S.A. 8143 shall be given as set forth
in Paragraph 25 of this Mortgage.)
OPEN-END MORTGAGE AND SECURITY AGREEMENT
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (this "Mortgage" made this
14th day of January, 2004, by and between Spitz, Inc., a Delaware corporation,
with an address of ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
Mortgagor), and FIRST KEYSTONE BANK (Mortgagee), a federally chartered stock
savings bank organized and existing under the laws of the United States of
America, at Mortgagee's office located at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
WITNESSETH:
WHEREAS, this Mortgage is an Open-End Mortgageas set forth in 42 Pa. C.S.A.
8143 and secures obligations of Mortgagor and Transnational, Inc. (TN) to
Mortgagee up to a maximum amount of principal indebtedness outstanding at any
time of Three Million Two Hundred Thousand ($3,200,000.00) Dollars together
with, but not limited to, advances for the payment of taxes and municipal
assessments, maintenance charges, insurance premiums, costs incurred for the
protection of the Mortgaged Property (hereinafter defined) or the lien of this
Mortgage, expenses incurred by Mortgagee by reason of default by Mortgagor under
this Mortgage the Note (hereinafter defined), and all other sums due hereunder
or secured hereby, plus accrued and unpaid interest due under the Note; and
WHEREAS, Mortgagor and TN, as part of the foregoing obligations, has
executed and delivered to Mortgagee its Mortgage Note, dated even date herewith
(the Note), evidencing Mortgagor's and TN's indebtedness to Mortgagee in the
principal amount of Three Million Two Hundred Thousand ($3,200,000.00) Dollars
in accordance with a certain Commitment Letter from Mortgagee to Mortgagor and
TN, dated December 19, 2003, (the Commitment Letter), and a certain Loan
Agreement (the Loan Agreement), dated even date herewith, by and between
Mortgagor, TN and Mortgagee, together with interest thereon payable at the rate
and times, in the manner, and according to the terms and conditions specified in
the Note which provides for interest rate adjustments based on a formula therein
set forth; and
WHEREAS, all of the terms, conditions and provisions of the Note, the
Commitment Letter and the Loan Agreement are by reference incorporated herein as
if fully set forth; and
WHEREAS, Mortgagor has duly executed and delivered this Mortgage to secure
all of Mortgagor's and TN's obligations under the Note and the Loan Agreement.
NOW, THEREFORE, in consideration of the aforesaid indebtedness, and to
secure the payment of all sums due or to become due under the Note, under the
Commitment Letter, under the Loan Agreement, and under the terms of this
Mortgage, and to secure the payment of all sums advanced by Mortgagee to
Mortgagor and TN, as well as to secure the performance and observance of all of
the terms, conditions and provisions of the Note, the Commitment Letter, the
Loan Agreement, this Mortgage, the Assignment of Rents (hereinafter defined),
the Environmental Indemnity Agreement (hereinafter defined) and all other
agreements and instruments given by or on behalf of Mortgagor and TN to
Mortgagee in connection with the Note, the Commitment Letter, the Loan
Agreement, or this Mortgage (collectively the Loan Documents), Mortgagor has
granted, bargained, conveyed, sold, aliened, enfeoffed, released, confirmed and
mortgaged, and by these presents does hereby grant, bargain, convey, sell,
alien, enfeoff, release, confirm and mortgage unto Mortgagee, its successors and
assigns all that certain parcel of real property known as ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ County, Pennsylvania, being Folio No. 04-00-00034-02, and
more specifically described on the metes and bounds legal description, attached
hereto, made a part of hereof, and labeled Exhibit A (the Real Estate).
TOGETHER WITH all of Mortgagor's right, title and interest now owned or
hereafter acquired in:
(i) All buildings, structures and improvements of every kind and
description now or hereafter erected or placed on the Real Estate.
(ii) All tenements, hereditaments, appurtenances and all the estates and
rights of Mortgagor in and to the Real Estate or any part thereof.
(iii) All streets, roads, passages, ways, waters, water courses, easements,
and privileges of whatsoever kind or character, belonging to, and adjoining,
used in connection with or in any way appertaining to the Real Estate.
(iv) All reversions, remainders, easements, rents, issues, income and
profits arising or issuing from the Real Estate and/or the buildings, structures
and improvements now or hereafter erected or placed thereon, or any portion
thereof, including, but not limited to, the rents, issues, income and profits
arising or issuing from all insurance policies, sale agreements, licenses,
options, leases and subleases now or hereafter entered into covering any part of
the Real Estate and/or the buildings, structures and improvements now or
hereafter erected or placed thereon, or any portion thereof, all of which
insurance policies, sale agreements, licenses, options, leases, subleases,
rents, issues, income and profits are hereby assigned to Mortgagee by Mortgagor.
Mortgagor will execute and deliver to Mortgagee, on demand, such separate,
specific assignments and instruments as Mortgagee may require to implement,
confirm, maintain and continue the assignment hereunder. Mortgagor hereby
appoints Mortgagee, its designees and nominees, as Mortgagor's agents and
attorneys-in-fact to collect such rents, issues and profits.
(v) All awards, damages, payments and other compensation, and any and all
claims therefor, and rights thereto, which may result from taking or injury by
virtue of the exercise of the power of eminent domain of, or to, or any damage,
injury or destruction in any manner caused to, the Real Estate and/or the
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buildings, structures and improvements now or hereafter erected or placed
thereon, or any portion thereof, all of which award, damages, payments,
compensation, claims and rights are hereby assigned to Mortgagee to the fullest
extent that Mortgagor may do so under law. Mortgagor hereby appoints Mortgagee,
its designees and nominees, as Mortgagor's agents and attorneys-in-fact to
collect any such awards, damages, payments and compensation.
(vi) All fixtures, fittings, furnishings, furniture, trade fixtures,
machinery, equipment, apparatus, building materials, appliances, goods,
supplies, tools, chattels, and all articles of tangible personal property of
whatever kind and nature, together with all replacements thereof, substitutions
therefor and additions and accessions thereto, and all proceeds and profits
thereof and therefrom, now or at anytime hereafter, affixed or attached to,
installed upon, included within, or used in any way in connection with the
construction, use, enjoyment, operation, maintenance or occupancy of the Real
Estate and the buildings, structures and improvements now or hereafter erected
or placed thereon; and all agreements, contract rights, chattel paper,
negotiable instruments, general intangibles, accounts, instruments, and
documents (as those terms are defined in the Pennsylvania Uniform Commercial
Code). Any item referred to in this paragraph (vi) shall hereinafter, for
purposes of creating a security interest therein under the Pennsylvania Uniform
Commercial Code, sometimes be referred to as the Personal Property.
The Real Estate, and all of the right, title and interest of Mortgagor
therein and thereto, and all of the property rights, title and interest referred
to in paragraphs (i) through (vi) above shall hereinafter sometimes be referred
to collectively as the Mortgaged Property.
TO HAVE AND TO HOLD the Mortgaged Property hereby granted and conveyed, or
mentioned and intended so to be, unto Mortgagee, its successors and assigns, to
its and their own use and benefit forever.
PROVIDED, HOWEVER, that if Mortgagor pays to Mortgagee the principal
interest to become due under the Note at the time and in the manner stipulated
therein, and pays all other sums payable by Mortgagor and TN to Mortgagee as are
secured hereby, and if Mortgagor and TN perform and comply with all the
agreements, conditions, covenants and provisions contained in the Note, the Loan
Agreement, this Mortgage and the other Loan Documents, and if Mortgagor and TN
pay all satisfaction costs, including the recording costs for any Mortgage
satisfaction and termination statements, then this Mortgage and the estate,
right, title and interest of Mortgagee in and to the Mortgaged Property shall
cease and become void. Until such time, Mortgagor covenants, represents,
promises, warrants and agrees to and with Mortgagee as follows:
1. Mortgagor's Title. Mortgagor warrants, covenants and represents as
follows:
1.1 Mortgagor has good and marketable and unencumbered fee simple
title to the Mortgaged Property subject only to the title exceptions not
removed from Title Insurance Commitment No. 03-1156 dated effective October
30, 2003, issued by Strong Abstract, Inc. agent for First American Title
Insurance Company, at the time of closing the loan evidenced by the Note;
and
1.2 Mortgagor will forever warrant and defend the title to the
Mortgaged Property unto the Mortgagee, its successors and assigns, against
all persons and all claims of every kind and nature whatsoever.
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2. Payment and Performance by Mortgagor.
2.1 Mortgagor and TN shall pay to Mortgagee all principal, interest
and other sums now or hereafter due and payable to Mortgagee under the
terms of the Note, this Mortgage, and all other Loan Documents, as and when
the same shall become due and payable by the terms thereof and hereof.
2.2 Mortgagor and TN shall perform and comply with all terms,
condition, provisions, covenants and agreements on the part of Mortgagor
and/or TN to be observed and performed under this Mortgage, the Note, the
Loan Agreement, and all other Loan Documents. All the terms, conditions and
provisions of the Loan Documents are by reference incorporated herein as if
fully set forth.
2.3 Mortgagor shall timely perform all of its obligations and duties
under any present or future lease, easement, license, permit, approval,
covenant or agreement relating to, affecting, created for the benefit of or
used in connection with the operation of all or any portion of the
Mortgaged Property.
2.4 This mortgage secures obligations of Mortgagor and TN to Mortgagee
which obligations shall include, but not be limited to, expenses and
attorneys fees incurred by Mortgagee by reason of default by Mortgagor
and/or TN hereunder, under the Note or under any of the other Loan
Documents, the payment of taxes, municipal assessments and insurance
premiums whether advanced prior to or after the entry of judgment in any
action to enforce this security instrument, together with all other sums
due hereunder or secured hereby, plus accrued and unpaid interest.
3. Maintenance and Repair. Mortgagor shall keep and maintain the Mortgaged
Property and the sidewalks, curbs and drives abutting and adjacent thereto, if
any, in good and tenantable order, condition and repair, and will make as and
when necessary all repairs, renewals and replacements, structural and not
structural, exterior and interior, ordinary and extraordinary, foreseen and
unforseen. All such repairs, renewals and replacements made by Mortgagor shall
be at least equal in quality to the original portion of the Mortgaged Property
being repaired, renewed or replaced. Mortgagor shall abstain from and shall not
permit the commission of waste in or about the Mortgaged Property.
4. Removal, Demolition and Alteration. Mortgagor shall not undertake or
permit the removal or demolition of any building at any time erected on or
forming a part of the Mortgaged Property, nor shall Mortgagor, without
Mortgagee's prior written consent, undertake or permit any alteration in the
design or structural character of any such building.
5. Inspection by Mortgagee. Mortgagor will permit Mortgagee and Mortgagee's
agents and representatives to enter the Mortgaged Property and all parts thereof
for the purposes of making site and building investigations, performing soil,
groundwater, structural and other tests, and generally to inspect. and
photograph the condition and state of repair of the Mortgaged Property at any
reasonable time upon one (1) business day prior notice.
6. Insurance. Mortgagor shall from and after the date hereof and at all
times while the indebtedness secured hereby is outstanding maintain at
Mortgagor's sole expense, insurance in amounts, with deductibles satisfactory to
Mortgagee as more fully set forth in the Loan Agreement, including, without
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limitation, all risk, fire, hazard and extended coverage insurance with
vandalism and malicious mischief endorsements on all buildings, structures and
improvements now existing or hereafter erected on or forming a part of the
Mortgaged Property, and all of the Personal Property, to the extent of one
hundred percent (100%) of the replacement value thereof pursuant to full
replacement value endorsements naming Mortgagee as mortgagee and additional
insured pursuant to a standard mortgagee loss payable clause, without
co-insurance. Mortgagor shall also insure against such other hazards as
Mortgagee may require from time to time and shall maintain rent insurance
against loss of income arising out of damage or destruction by fire or the
perils of extended coverage insurance, in an amount equal to one (1) year's
gross rental income to the owner of the Mortgaged Premises, or business
interruption insurance in an amount as required by Mortgagee from time to time,
but not to exceed Mortgagee's reasonable estimate of the annual cost of debt
service on the Note, taxes, insurance and maintenance for the Mortgaged
Premises. All such insurance shall be in such amounts as is necessary to comply
with co-insurance requirements and otherwise as Mortgagee shall require, and
shall be written by stock or nonassessable mutual carriers with a general policy
holders rating of A or better and a financial rating of VI or better in the most
recent edition of Best's Key Rating Guide, Property-Casualty, published by
▇▇▇▇▇▇ ▇. Best Co., Inc. Mortgagor shall deliver to Mortgagee upon demand, and
in the absence of demand not less than twenty (20) days prior to the expiration
date of each such insurance policy, proof of the renewal and continuance of all
required insurance coverages, with premiums prepaid. As additional security for
the payment of the indebtedness secured by this Mortgage, shall name Mortgagee
as an additional insured or be endorsed with a standard mortgagee clause, shall
not be subject to contribution, shall be for a term of at least one (1) year,
and shall provide for cancellation or modification only upon at least thirty
(30) days prior written notice to Mortgagee.
6.1 If any of the insurance referred to herein, or any part thereof,
shall expire, or be canceled, or become void or voidable by reason of the
breach of any condition thereof, or if Mortgagee determines that such
coverage is unsatisfactory due to the failure or impairment of the capital
of any company in which the insurance may then be carried such that its AM
Best Rating falls below the standard set forth in this Mortgage, or if for
any reason whatever the insurance shall be or become unsatisfactory to
Mortgagee, Mortgagor shall place new insurance on the Mortgaged Property,
satisfactory to Mortgagee.
6.2 If Mortgagee acquires title to the Mortgaged Property either by
virtue of a judicial sale thereof pursuant to proceedings under the Note or
upon this Mortgage or by virtue of a deed in lieu of foreclosure, or
otherwise, then, and in any such event, all of Mortgagor's right, title and
interest in and to all insurance policies referred to herein, including
unearned premiums thereon and the proceeds thereof, shall vest in
Mortgagee.
7. Taxes, Assessments and Other Charges. If requested by Mortgagee, in
addition to the monthly installment of interest and/or principal due to
Mortgagee, Mortgagor shall pay to Mortgagee, on the payment date of installments
due under the Note, until the Note is fully paid, a sum (the Escrow Payment)
equal to one-twelfth (1/12) of the annual real estate taxes, other municipal
assessments and the estimated annual premiums for all insurance required
hereunder (the Escrow Charges), with an initial deposit to cover the months
which will have elapsed between the last date such taxes, charges and premiums
were due and payable and the first date on which an installment shall be due
hereunder. The Escrow Payments may be commingled with other funds of Mortgagee
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and no interest thereon shall be due of payable to Mortgagor. Mortgagee shall
apply the Escrow Payments to the payment of the Escrow Charges in such order or
priority as Mortgagee shall determine. If, at any time, the Escrow Payments
theretofore paid to Mortgagee shall be insufficient for the payment of the
Escrow Charges, Mortgagor, within ten (10) days after demand, shall pay the
amount of the deficiency to Mortgagee.
Mortgagor shall pay, prior to the accrual of any interest or penalties,
without any deduction, defalcation or abatement, and shall furnish to Mortgagee
proper receipts for, within five (5) days after their respective due dates, all
ground rents, taxes, assessments, water and sewer rents, licenses or permit
fees, and all other charges or claims which may be assessed, levied charged,
imposed or filed at any time against Mortgagor, the Mortgaged Property or any
part thereof, or against the interest of Mortgagee therein, by any governmental
instrumentality or agency or other lawful authority or by any deed restriction,
private agreement or declaration, recorded or otherwise, or which by any present
or future law may have priority over the indebtedness secured hereby either in
lien or in distribution out of the proceeds of any judicial sale. Mortgagor will
pay, when due, all charges for utilities, whether public or private, used or
consumed upon, in or in connection with the Mortgaged Property.
8. Sale or Transfer of the Mortgaged Property. Mortgagor shall not, without
the prior written consent of Mortgagee: (i) sell, transfer, convey or assign the
Mortgaged Property, or any part thereof, or any interest therein, including but
not limited to, an equitable interest in the Mortgaged Property, or any part
thereof, to any party; or (ii) permit the sale, transfer, conveyance or
assignment of the Mortgaged Property or any part thereof or any interest
therein, either voluntarily or by operation of law.
9. Internal Revenue Stamps. If at any time the United States Government or
any department or bureau thereof shall require Internal Revenue stamps on the
Note or other indebtedness secured hereby, Mortgagor shall, upon demand made by
Mortgage, pay for such stamps together with any interest and penalties payable
with respect thereto.
10. Taxation of Note and Mortgage. If any law is hereafter enacted: (i)
deducting from the value of real estate, for purposes of taxation, any lien or
encumbrance thereon; (ii) revising or changing in any way the laws and
ordinances now in force for the taxation of mortgages or the debts secured
thereby, or the manner of collections of such taxes; (iii) imposing a tax
directly or indirectly on Mortgagee with respect to the Mortgaged Property, the
value of Mortgagor's equity therein, the indebtedness evidenced by the Note
and/or secured by this Mortgage; (iv) requiring Mortgagee to pay, in whole or in
part, any tax, assessment, charge or lien required to be paid by Mortgagor
pursuant to the terms of this Mortgage; then, and in any such event, the entire
unpaid balance of the indebtedness secured by this Mortgage shall, at the option
of Mortgagee, without notice to Mortgagor, become immediately due and payable,
unless, to the extent permitted by such law or ordinance, Mortgagor is
authorized to, and does, pay or reimburse Mortgagee for the full amount of any
such tax, assessment, charge or lien.
11. Protection of Mortgage Lien. Mortgagor will promptly perform and
observe, or cause to be performed and observed, all of the terms, covenants and
condition of all instruments of record affecting the Mortgaged Property, or
imposing any duty or obligation upon Mortgagor or any occupant or tenant of the
Mortgaged Property or any part thereof. Mortgagor shall do or cause to be done
all things necessary to preserve intact and unimpaired any and all easements,
appurtenances and other interests and rights in favor of or constituting any
portion of the Mortgaged Property.
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12. Costs, Expenses and Counsel Fees. Mortgagor and/or TN shall pay all
expenses incurred by Mortgagee incident to the preparation, execution, delivery
and/or recording of the Note, this Mortgage and all of the other Loan Documents.
Mortgagor and/or TN shall, upon demand made by Mortgagee, promptly pay to
Mortgagee all expenses and costs, including reasonable attorneys' fees, incurred
by Mortgagee to collect any of the indebtedness secured hereby or to enforce the
performance of the terms, conditions, provisions, agreements and covenants
contained herein, in the Note, the Loan Agreement, or in any other Loan
Document, whether or not suit is instituted, or incurred by Mortgagee in
connection with any action, proceeding, litigation or claim instituted or
asserted by or against Mortgagee or in which the Mortgagee becomes engaged,
wherein it becomes necessary, in the opinion of Mortgagee, to enforce, defend or
uphold the lien of this Mortgage or the validity or effectiveness of any
assignment of any claim, award, payment, insurance recovery or any other right
or property conveyed, encumbered or assigned by Mortgagor to Mortgagee
hereunder, or the priority of any of the same or otherwise. All such expenses,
costs and attorneys' fees, together with interest thereon at the rate set forth
in the Note in the event of a default thereunder, shall be deemed to be part of
the principal indebtedness evidenced by the Note on a pro rata basis and secured
by this Mortgage.
13. Security Interest in the Personal Property. Mortgagor and Mortgagee
hereby acknowledge that this Mortgage constitutes a security agreement under the
Pennsylvania Uniform Commercial Code, and Mortgagor hereby grants to Mortgagee a
security interest in every item of the Personal Property and the proceeds
thereof and profits therefrom, replacements and substitutions therefor and
additions and accessions thereto. Mortgagor shall, upon demand made by
Mortgagee, execute, deliver and file any financing statements, continuation
statements and other instruments as Mortgagee may from time to time require in
order to perfect, confirm and maintain such perfected security interest under
the Pennsylvania Uniform Commercial Code. Mortgagor hereby irrevocably appoints
Mortgagee, its designees and nominees, as Mortgagor's agents and
attorneys-in-fact to execute, deliver and file, on Mortgagor's behalf and in its
name, any such financing statements, continuation statements, and other
instruments as Mortgagee, in its sole discretion, deems necessary.
13.1 Mortgagor hereby warrants and represents to Mortgagee that
Mortgagor is and will be the owner of every item of the Personal Property,
free from any leases, conditional sales, chattel mortgages, security
interests, liens or encumbrances other than the security interest hereby
created. Mortgagor further hereby represents and warrants to Mortgagee
that, unless Mortgagee gives its prior written consent to the contrary,
every item of the Personal Property has been, and shall be created thereon
except the security interest hereby created.
14. Rents, Profits and Leases. Mortgagor hereby assigns and transfers unto
Mortgagee, its successors and assigns: (i) all rights, title, interest and
privileges which Mortgagor has or may have as lessor in any lease now existing
or hereafter made and affecting the Mortgaged Property or any part thereof,
together with any extensions or renewals of such leases (collectively, the
Leases and individually, a Lease); and (ii) all rents, income, and profits due
or to become due under the Leases, or any of them, or arising or accruing from
or relating to the Mortgaged Property, or any portion thereof, or the use
thereof, and Mortgagor hereby confers upon Mortgagee, immediately upon
Mortgagor's default in any respect under this Mortgage, the Note or any other
Loan Document, the right to enter upon and take possession of the Mortgaged
Property, or any portion thereof, and the right, with or without taking
possession of the Mortgaged Property, to collect and receive all rents, income
and profits accruing from the Leases and from the Mortgaged Property.
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14.1 Mortgagor hereby warrants, certifies, covenants and represents to
Mortgagee as follows:
14.1.1 That Mortgagor has or will have title to and full right to
assign the Leases and the rents, income and profits due and to become
due arising from and due pursuant to the Leases and from the Mortgaged
Property.
14.1.2 That Mortgagor will not, without the prior written consent
of Mortgagee in each instance, enter into any Lease for all or any
portion of the Mortgaged Property for a term of more than three (3)
years or alter or modify any Lease, consent to any subletting of any
Lease, or subordinate any Lease to any mortgage or other encumbrance
other than this Mortgage. Each and every Lease shall be for fair
market rental and on other than commercially reasonable terms between
unrelated parties at arms length dealing. All such leases shall be
subject and subordinate in lien and payment to the Mortgage and any
extension, renewal, modification or replacement thereof
14.1.3 That Mortgagor has not executed, and will not execute, any
prior or other assignment of any of its rights under any of the Leases
or its rights to the rent, income and profits therefrom or from the
Mortgaged Property.
14.1.4 That as of the date of this Mortgage, there are no Leases
respecting all of any portion of the Mortgaged Property.
14.2 Mortgagor has executed, acknowledged and delivered to Mortgagee a
specific separate Assignment of Rents, Profits and Leases with respect to
the Mortgaged Property dated even date herewith (the Assignment of Rents).
In the event of any conflict between the terms of this Mortgage, including
without limitation this paragraph 14, and the terms of any separate
Assignment of Rents, the terms of the Assignment of Rents shall control.
15. Destruction of the Mortgaged Property. In the event of any loss, damage
or destruction to or of the Mortgaged Property, or any part thereof, Mortgagor
shall give immediate written notice thereof to Mortgagee, and Mortgagee may make
proof of loss thereof if proof of loss is not made promptly by Mortgagor;
provided, however, that any adjustment of a proof of loss shall require the
prior written consent of Mortgagee which shall not be unreasonably whithheld,
conditioned or delayed. Each insurance company concerned is hereby authorized
and directed to make payment under its insurance policies directly to Mortgagee.
Mortgagee may, with the consent of Mortgagor, on behalf of Mortgagor, adjust and
compromise any claims under any insurance policies. Mortgagor hereby irrevocably
constitutes and appoints Mortgagee, its designees and nominees after an Event of
Default, as Mortgagor's agents and attorneys-in-fact to adjust and compromise
claims and to collect and receive proceeds and to endorse drafts therefor. Any
proceeds paid to or collected by Mortgagee in connection with collecting such
proceeds, shall be applied, in such order and amounts as Mortgagee, in
Mortgagee's sole discretion, may elect, in reduction of the outstanding
principal balance of the Note, accrued and unpaid interest, or any other sum due
under and/or secured by the Note or this Mortgage, whether or not then due.
Mortgagee shall deliver written notice to Mortgagor of the amount so applied and
of the then outstanding balance of the indebtedness secured by this Mortgage if
the insurance proceeds are insufficient to pay the entire amount hereof. In the
event a balance remains outstanding on the Note and Mortgagee receives proceeds
of rent insurance or business interruption insurance beyond those required to be
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applied for the current monthly installment due under the Note, Mortgagee may
retain such additional proceeds in escrow, for the account of Mortgagor, and so
apply such proceeds on a monthly basis, provided that any such proceeds not
needed to be applied to keep the Mortgagor current and not in default hereunder
during the reasonably estimated period of time when the rents from the Mortgaged
Premises will be inadequate to provide Mortgagor with sufficient funds with
which to pay Mortgagee the amounts falling due each month shall be paid over to
Mortgagor to met the other expenses of the Mortgaged Premises.
15.1 Repair and Restoration. Notwithstanding the provision of
paragraph 15, and provided that (i) no event of default has occurred
hereunder or under the Note or other Loan Documents, (ii) Mortgagee is
satisfied that the there are sufficient proceeds to complete the
restoration of the improvements constructed on the Mortgaged Premises to
the same value and character as existed prior to such damage, and (iii) the
insurers do not deny liability as to the insureds, Mortgagee shall apply
the insurance proceeds for the repair and restoration of the Mortgaged
Property in accordance in accordance with the following conditions:
15.1.1 Prior to commencement of repair and restoration, the
contracts, contractors, and plans and specifications thereof shall be
approved by Mortgagee which approval shall not be unreasonably
withheld, conditioned or delayed, and Mortgagee shall be provided with
mechanics' lien waivers.
15.1.2 At the time of any disbursement of the proceeds, Mortgagor
shall not be in default under the Note, or this Mortgage, no
mechanics' or materialmen's liens shall have been filed and remain
undischarged and/or not bonded against and a satisfactory bring down
of title insurance shall be delivered to Mortgagee.
15.1.3 Disbursement shall be made from time to time in an amount
not exceeding the cost of the work completed since the last
disbursement, upon receipt of satisfactory evidence of the stage of
completion and or performance of the work in a good and workmanlike
manner in accordance with the contracts and the plans and
specifications.
15.1.4 Mortgagee shall retain ten percent (10%) of the proceeds
until the repair and restoration is fully completed.
15.1.5 The proceeds shall not bear interest and may be commingled
with Mortgagee's other funds.
15.1.6 Mortgagee may impose such other conditions as are
customarily imposed by construction lenders.
15.1.7 Prior to commencement of and at any time during repair and
restoration, if the estimated cost thereof as determined by Mortgagee
exceeds the amount of the proceeds, Mortgagor shall, immediately upon
demand by Mortgagee, pay the amount of such excess to Mortgagee to be
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added to the proceeds held by Mortgagee. Any sum so added by Mortgagor
which remains upon completion of repair and restoration shall be
refunded to Mortgagor. If any sum remains after the completion and any
refund to Mortgagor aforesaid, such sum remaining shall, at
Mortgagee's option, be applied on account of the outstanding balance
of the Note.
16. Environmental Matters. Mortgagee shall, if it has reason to believe a
problem exists, have the right to conduct or have conducted by its agents or
contractors such environmental inspections, audits and testing as Mortgagee
shall deem necessary or advisable at any reasonable time upon at least one (1)
business day prior notice, at the sole cost and expense of Mortgagor and/or TN.
Mortgagor and each lessee of any property encumbered by the lien of the Loan
Documents, shall cooperate or, in the case of any such lessee shall be caused to
cooperate, with such inspection efforts; such cooperation shall include, without
limitation, supplying such information concerning the operations conducted and
hazardous substances or hazardous waste located on any of such properties. In
the event that Mortgagor shall fail to comply with any applicable state or
federal environmental law, then Mortgagee may, in addition to any of its other
remedies hereunder and the other Loan Documents, cause each such property to be
brought into compliance and all expenses incurred by Mortgagee added to the sum
secured by the Loan Documents and evidenced by the Note, and shall bear interest
from the date of demand at the interest rate then in effect thereunder, plus
five (5%) percent. Further, in the event Mortgagee, in order to protect the
priority of this Mortgage, or to preserve the value of the Mortgaged Property,
or in any situation in which Mortgagee is required, by court order or otherwise,
to pay any costs, fees, expenses, settlements, damages, fines (civil or
criminal) or penalties, including but not limited to, clean-up costs, attorney's
fees and court costs, because of a past, present or future violation of the
Environmental Laws (as defined in that certain Environmental Indemnity Agreement
made by Mortgagor and Guarantor and delivered to Mortgagee even date herewith)
on, in, under from or about the Mortgaged Property, all such sums shall be added
to the amount secured hereby, shall be secured hereby (if this Mortgage is at
that time in existence), shall be payable on demand by Mortgagor and/or TN and
shall bear interest from the date of demand at the interest rate then in effect
thereunder, plus five (5%) percent. The terms of this paragraph shall survive
the payment in full of all other sums secured hereby and the satisfaction of
record of this Mortgage. Mortgagor and TN have executed and delivered to
Mortgagee that certain Environmental Indemnity Agreement dated even date
herewith (the Environmental Indemnity Agreement) setting forth certain
representations, warranties, covenants and obligations of Mortgagor and TN
respecting environmental matters at the Mortgaged Property. In the event of any
conflict between this Mortgage and the Environmental Indemnity Agreement. the
terms of the Environmental Indemnity Agreement shall control. The terms of the
Environmental Indemnity Agreement are incorporated herein by reference.
17. Eminent Domain. In the event that the Mortgaged Property, or any part
thereof, shall be taken in condemnation proceedings or by the exercise of any
right of eminent domain or bona fide sale in lieu thereof (hereinafter
collectively referred to as condemnation proceedings), Mortgagor and Mortgagee
shall have the right to participate in any such condemnation proceedings and the
award that may be made in any such condemnation proceedings or the proceeds
thereof or the agreed upon compensation for damages sustained shall be applied
by Mortgagee, in such order and amounts as Mortgagee, in its sole discretion,
may elect, in reduction of the outstanding principal balance of the Note, all
accrued and unpaid interest, or any other sum due under and/or secured by the
Note or this Mortgage, whether or not then due. In the event the whole of the
10
Mortgaged Property is taken and the amount of the awards, proceeds or
compensation received by Mortgagee is insufficient to pay the then unpaid
principal balance of the Note, together with all accrued and unpaid interest
thereon, and all other sums then due to Mortgagee from Mortgagor and TN,
Mortgagor and/or TN shall, within ten (10) days after the application of the
award, proceeds or compensation as aforesaid, pay such deficiency to Mortgagee.
In the event less than the whole of the Mortgaged Property is taken, and the
amount of the awards, proceeds or compensation received by Mortgagee is
insufficient to reduce the outstanding balance of the Note to an amount equal to
or less than eighty-five (85%) percent of the appraised value of the Mortgaged
Property after the taking determined by an appraisal of the Mortgaged Property
by a qualified appraiser approved by Mortgagee, then Mortgagor and/or TN shall,
within ten (10) days after the application of the award, proceeds or
compensation as aforesaid, pay to Mortgagee the amount necessary to reduce the
outstanding balance of the Note to an amount equal to eighty-five (85%) percent
of the appraised value of the Mortgaged Property after the taking. The cost of
such appraisal shall be the responsibility of Mortgagor.
17.1 Repair and Restoration. Notwithstanding the provisions of
paragraph 17, in the event of a partial taking, and provided that (i) no
event of default has occurred hereunder or under the Note or other Loan
Documents, and (ii) Mortgagee is satisfied that the there are sufficient
proceeds to complete the restoration of the improvements constructed on the
Mortgaged Premises to the same value and character as existed prior to such
taking, Mortgagee shall apply the condemnation proceeds for the repair and
restoration of the Mortgaged Property in accordance with the following
conditions:
17.1.1 Prior to commencement of repair and restoration, the
contracts, contractors, and plans and specifications thereof shall be
approved by Mortgagee, which approval shall not be unreasonably
withheld, conditioned or delayed, and Mortgagee shall be provided with
mechanics' lien waiver.
17.1.2 At the time of any disbursement of the proceeds, Mortgagor
shall not be in default under the Note, or the Mortgage, no mechanics'
or materialmen's liens shall have been filed and remain undischarged
and or properly bonded against and a satisfactory bring down of title
insurance shall be delivered to Mortgagee.
17.1.3 Disbursement shall be made from time to time in an amount
not exceeding the cost of the work completed since the last
disbursement, upon receipt of satisfactory evidence of the stage of
completion and of performance of the work in a good and workmanlike
manner in accordance with the contracts and the plans and
specifications.
17.1.4 Mortgagee shall retain ten percent (10%) of the proceeds
until the repair and restoration is fully completed.
17.1.5 The proceeds shall not bear interest and may be commingled
with Mortgagee's other funds.
17.1.6 Mortgagee may impose such other conditions as are
customarily imposed by construction lenders.
17.1.7 Prior to commencement of and at any time during repair and
restoration, if the estimated cost thereof as determined by Mortgagee
exceeds the amount of the proceeds, Mortgagor shall, immediately upon
demand by Mortgagee, pay the amount of such excess to Mortgagee to be
11
added to the proceeds held by Mortgagee. Any sum so added by Mortgagor
which remains upon completion of repair and restoration shall be
refunded to Mortgagor. If any sum remains after the completion and any
refund to Mortgagor aforesaid, such sum remaining shall, at
Mortgagee's option, be applied on account of the outstanding balance
of the Note.
18. Events of Default. The occurrence of any one or more of the following
shall constitute an Event of Default hereunder:
18.1 The occurrence of an event of default under the Note, the Loan
Agreement, the Assignment of Rents, the Environmental Indemnity Agreement
or any other Loan Document.
18.2 The failure of Mortgagor to perform or comply with any other of
the terms, conditions, provisions, agreements, covenants and conditions
contained herein.
18.3 The filing of any non consensual lien or encumbrance, mechanic's
or materialmen's lien or municipal claim against all or any portion of the
Mortgaged Property which is not discharged within twenty (20) days unless
it is being contested by Mortgagor in good faith and due diligence in
appropriate proceedings with the approval of Mortgagee, a bond or escrow
having been posted with Mortgagee for the full amount of such contested
lien.
18.4 The existence of any security interest, pledge, consensual lien,
or other consensual encumbrance in favor of any party other than Mortgagee
in the Mortgaged Property.
18.5 If Mortgagor shall at any time deliver or cause to be delivered
to Mortgagee a notice pursuant to 42 Pa. C.S.A. 8143 electing to limit the
indebtedness secured by this Mortgage.
In the event of any conflict between the terms of this Mortgage, including
without limitation this paragraph 18, and the terms of the Note, the terms of
the Note shall control.
19. Remedies. Upon the happening of any Event of Default, the entire unpaid
balance of principal, and all accrued and unpaid interest under the Note and all
other sums due under or secured by this Mortgage shall, at the option of
Mortgagee, become immediately due and payable, without notice or demand.
Mortgagee may forthwith, and without delay:
19.1 Institute an action of mortgage foreclosure against the Mortgaged
Property, or any portion thereof, or take such other action at law or in
equity for the enforcement of this Mortgage and realization on the mortgage
security or any other security herein or elsewhere provided for, and
proceed therein to final judgment and execution thereon for the entire
accelerated indebtedness as aforesaid, together with all costs of suit and
attorney's fees, together with interest at the default rate set forth in
the Note on any judgement obtained by mortgagee from and after the date of
any Sheriff's Sale of the Mortgaged Property until actual payment is made
by the Sheriff of the full amount due to Mortgagee. The obligations of the
Mortgagor and/or TN and the rights and remedies of the Mortgagee hereunder
shall survive the entry of judgment hereunder or under the obligation this
Mortgage secures; it being the intention of parties hereto that such
rights, remedies and obligations shall not merge into or be extinguished by
any such judgment but shall continue until all sums secured hereby have
been paid in full.
12
19.1.1 The Mortgaged Property, or any portion thereof, may be
sold pursuant to any Writ of Execution issued on a judgment obtained
by virtue of the Note or this Mortgage or pursuant to any other
judicial proceedings, whether or not under this Mortgage, in one
parcel as an entirety, or in such parcels, manner and order as
Mortgagee, in its sole discretion, may elect.
19.2 Enter and take possession of the Mortgaged Property and manage
and operate the same, let or re-let the Mortgaged Property or any part
thereof, cancel, modify, and grant indulgences with respect to the Leases,
evict tenants, bring or defend any suits in Mortgagee's name or in
Mortgagor's name in connection with possession of the Mortgaged Property,
make repairs, alterations and improvements as Mortgagee deems appropriate,
and perform such other acts in connection with the management and operation
of the Mortgaged Property as Mortgagee, in its sole discretion, deems
appropriate, and demand, ▇▇▇ for, collect and receive all or any rents,
income and profits accruing from the Mortgaged Property and from the Leases
shall be applied by Mortgagee, in such order and amounts as Mortgagee shall
elect, to the costs of operation and maintenance of the Mortgaged Property,
the expenses (including attorney's fees) incident to taking and retaining
possession of the Mortgaged Property and collecting the rents, issues and
profits therefrom and from any Lease, any other expenses as Mortgagee shall
determine and monies necessary to satisfy all indebtedness due under and/or
secured by the Note and this Mortgage.
19.2.1 THE FOLLOWING SECTION SETS FORTH WARRANTS OF ATTORNEY FOR
ANY ATTORNEY TO CONFESS JUDGMENTS AGAINST MORTGAGOR. IN GRANTING THESE
WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST MORTGAGOR, MORTGAGOR
HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, AND UNCONDITIONALLY
WAIVES ANY AND ALL RIGHTS MORTGAGOR MAY HAVE TO PRIOR NOTICE AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA AND THE UNITED STATES OF AMERICA.
FOR THE PURPOSE OF OBTAINING POSSESSION OF THE MORTGAGED PROPERTY
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, MORTGAGOR HEREBY
AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD OF THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR MORTGAGOR
AND ALL PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR, TO, BY COMPLAINT
OR OTHERWISE, APPEAR FOR AND ENTER AND CONFESS JUDGMENT IN FAVOR OF
MORTGAGEE AND AGAINST MORTGAGOR, AND AGAINST ALL PERSONS CLAIMING
UNDER OR THROUGH MORTGAGOR, FOR RECOVERY BY MORTGAGEE OF POSSESSION OF
THE MORTGAGED PROPERTY, FOR WHICH THIS MORTGAGE, OR A COPY HEREOF
VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; WHEREUPON, IF
MORTGAGEE SO DESIRES, A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR
POSSESSION OF THE MORTGAGED PROPERTY, WITHOUT ANY WRIT OR PROCEEDING
WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. IF FOR ANY REASON AFTER
SUCH ACTION HAS BEEN COMMENCED IT SHALL BE DISCONTINUED, OR POSSESSION
OF THE MORTGAGED PROPERTY SHALL REMAIN IN OR BE RESTORED TO MORTGAGOR,
MORTGAGEE SHALL HAVE THE RIGHT IN CONNECTION WITH THE SAME DEFAULT OR
ANY SUBSEQUENT DEFAULT TO BRING ONE OR MORE FURTHER ACTIONS OR ENTER
13
AND CONFESS JUDGMENT ONE OR MORE TIMES AS HEREIN PROVIDED TO RECOVER
POSSESSION OF THE MORTGAGED PROPERTY. MORTGAGEE MAY BRING AN ACTION IN
EJECTMENT AND CONFESS JUDGMENT THEREIN BEFORE OR AFTER THE INSTITUTION
OF PROCEEDINGS TO FORECLOSE THIS MORTGAGE OR TO ENFORCE THE NOTE, OR
AFTER ENTRY OF JUDGMENT IN ANY PROCEEDINGS TO FORECLOSE THIS MORTGAGE
OR ON THE NOTE, OR AFTER A SHERIFF'S SALE OF THE MORTGAGED PROPERTY IN
WHICH MORTGAGEE IS THE SUCCESSFUL BIDDER.
MORTGAGOR ACKNOWLEDGES THAT MORTGAGOR HAS HAD THE ASSISTANCE OF
LEGAL COUNSEL IN THE REVIEW AND EXECUTION OF THIS MORTGAGE AND FURTHER
ACKNOWLEDGES THAT THE MEANING AND EFFECT OF THE FOREGOING PROVISIONS
CONCERNING CONFESSION OF JUDGMENT HAVE BEEN FULLY EXPLAINED TO
MORTGAGOR BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT THE MORTGAGOR
SIGN(S) HIS/HER/THEIR/ITS INITIALS BELOW.
/s/ PLD /s/ ▇▇▇
(Initials of Mortgagor) (Initials of Mortgagor)
19.3 Have a receiver appointed to enter into possession of the
Mortgaged Property and to collect the rents, issues, profits and income
therefrom and to apply such rents, issues, profits and income as provided
for in subparagraph 19.2.1 hereof or as the court may otherwise direct.
Mortgagee shall be entitled to the appointment of a receiver without the
necessity of proving either the inadequacy of the security for the
indebtedness secured hereby or the insolvency of Mortgagor or any other
person who may be legally or equitably liable to pay money secured hereby
and the Mortgagor and each such other person shall be deemed to have waived
such proof and to have consented to the appointment of such receiver.
Should the Mortgagee or any receiver collect rents, issues, profits or
income from the Mortgaged Property, monies so collected shall not be
substituted for the payment of the indebtedness secured hereby, nor can
they be used to cure the default, without the prior written consent of
Mortgagee. Any receiver shall be liable to account only for the rents,
issues, profits and income actually received by such receiver.
19.4 Exercise all of the remedies of a secured party under the
Pennsylvania Uniform Commercial Code, including, but not limited to, the
right and power to sell, or otherwise dispose of, the Personal Property or
any part thereof, and for that purpose Mortgagee shall take immediate and
exclusive possession of the Personal Property or any part thereof as
Mortgagee elects and, with or without judicial process, enter upon any
portion of the Mortgaged Property on which the Personal Property, or any
part thereof, may be situated and remove the same without being guilty of
trespass and without liability for damages thereby occasioned.
19.5 Exercise any other right or remedy otherwise available to
Mortgagee and resort to any other security held by Mortgagee for the
payment of the indebtedness secured hereby in such order and manner as
Mortgagee, in its sole discretion, may elect.
20. Remedies Cumulative. The rights and remedies of Mortgagee provided for
in this Mortgage, in the Note, in the Loan Agreement, and in any other Loan
14
Document, shall be cumulative and concurrent and shall not be exclusive of any
right or remedy provided by law, in equity or otherwise. Said rights and
remedies may, at the sole and exclusive discretion of Mortgagee, be pursued
singly, successively or together, and may be exercised as often as occasion
therefor shall arise.
21. Mortgagor's Waivers. Mortgagor and TN hereby waive and release: (i) all
errors, defects and imperfections (except as to notice required hereunder or in
the Loan Documents), in any proceeding instituted by Mortgagee under this
Mortgage, the Note, the Loan Agreement, or any other Loan Document; (ii) all
notices of default or of Mortgagee's exercise, or election to exercise, any
right or remedy referred to in paragraph 19 hereof; and (iii) the benefit of any
laws now or hereafter enacted extending the time for payment of any sum due
under or secured hereby or affording any right to a stay of any execution to be
issued on any judgment obtained under the Note, the Loan Agreement, this
Mortgage or any other Loan Document, or exempting any property from levy and
sale upon any such execution.
22. No Waiver. No failure or delay by Mortgagee in insisting upon the
strict performance by Mortgagor and/or TN of any of the terms, covenants,
conditions, agreements and provisions contained herein, in the Note, the Loan
Agreement, or in any other Loan Document shall constitute or operate as an
estoppel or a waiver of any such terms, covenants, conditions, agreements and
provisions, nor shall any such failure or delay preclude Mortgagee from
thereafter insisting upon such strict performance by Mortgagor and/or TN.
Neither Mortgagor, TN nor any guarantor or surety or other person obligated for
the payment of the indebtedness secured hereby shall be relieved of such
obligation by reason of the failure of Mortgagee or TN to comply with any
request of Mortgagor or of any such guarantor, surety or other person to take
action to foreclose this Mortgage or to otherwise enforce any of the provisions
of this Mortgage or any of the obligations secured by this Mortgage, or by
reason of the release, regardless of consideration, of the whole or any part of
the security held for the indebtedness secured by this Mortgage, or by reason of
any agreement or stipulation between any subsequent owner or owners or the
Mortgaged Property and Mortgagee extending the time of payment or modifying the
terms of the Note or this Mortgage without first having obtained the consent of
Mortgagor, TN, or any such guarantor, surety or other person, and Mortgagor and
each such guarantor, surety and other person shall continue to be liable to make
payments according to the terms of any such extension or modification agreement,
unless expressly released and discharged in writing by Mortgagee. Mortgagee may
release, regardless of consideration, the obligation of any party at any time
liable for any of the indebtedness secured by this Mortgage without, as to any
other person so obligated or the remainder of such security, in any way
affecting such other person's obligation or impairing or affecting the lien of
this Mortgage or the priority of the lien of this Mortgage.
23. Mortgagee's Right to Remedy Defaults. If, after the expiration of all
applicable notice and cure periods, Mortgagor fails to pay when due any sum
required to be paid by Mortgagor or fails to perform any obligation of Mortgagor
hereunder, Mortgagee, at its option, shall have the right, but not the
obligation, to pay any such sum or to take any action which Mortgagee deems
necessary or advisable to protect the security of this Mortgage or the Mortgaged
Property, all without prejudice to any of Mortgagee's rights or remedies
available hereunder or under the Note, the Loan Agreement, or under any other
Loan Document, at law, or in equity. The amount of all payments so made by
Mortgagee, together with all costs so incurred by Mortgagee, shall immediately
be due and payable from Mortgagor and/or TN to Mortgagee, together with interest
15
at the rate set forth in the Note in the event of a default thereunder, from the
date such payment was made of cost incurred by Mortgagee until the date of
repayment by Mortgagor and/or TN. All such amounts, together with interest as
aforesaid, shall be add to and evidenced by the Note and secured by this
Mortgage.
24. Further Assurances. Mortgagor will execute and deliver such further
instruments and documents, and perform such further acts as may be requested by
Mortgagee from time to time to confirm the provisions of, or to carry out more
effectively the purposes of this Mortgage, the Note, the Loan Agreement, or any
other Loan Documents. Mortgagor hereby authorizes Mortgagee to execute and
deliver such further instruments and documents and to perform such further acts
at any time and from time to time, on behalf of Mortgagor. Mortgagor hereby
irrevocably appoints Mortgagee, its designees and nominees, as Mortgagor's
agents and attorneys-in-fact, to execute, from time to time, on behalf of
Mortgagor, one or more such instruments and documents.
25. Notices and Other Communications. All notices and other communications
hereunder shall be given in the manner specified in the Loan Agreement. All
notices to be given to Mortgagee pursuant to 42 Pa. C.S.A. 8143 shall be given
to Mortgagee by certified mail to Mortgagee's address set forth below.
26. Captions. The heading and captions herein are inserted for convenience
of reference only and shall not control or affect the meaning or construction of
any of the provisions of this Mortgage.
27. Binding Effect. This Mortgage shall bind Mortgagor and its successors
and assigns and shall inure to the benefit of Mortgagee and Mortgagor and their
respective successors and assigns.
28. No Amendment. This Mortgage shall not be modified or amended except in
writing signed by the party against whom the enforcement of such amendment or
modification is sought.
29. Severability. If any term, covenant or condition of this Mortgage or
the application thereof to any party or circumstance shall, to any extent, be
invalid, or unenforceable, the remainder of this Mortgage, or the application of
such term, covenant or condition to parties or circumstances other than those as
to which it is held invalid or unenforceable shall not be affected thereby and
each term, covenant or condition of this Mortgage shall be valid and be enforced
to the fullest extent permitted by law.
30. Governing Law. This Mortgage shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
31. Waiver of Jury Trial. MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH, THE NOTE, THIS MORTGAGE, AND OTHER LOAN DOCUMENTS, ANY OTHER
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE MORTGAGEE OR
THE MORTGAGOR IN CONNECTION HEREWITH OR THEREWITH. THIS PROVISION IS A MATERIAL
16
INDUCEMENT FOR THE MORTGAGEE TO MAKE THE LOAN EVIDENCED BY THE NOTE AND SECURED
BY, INTER ALIA, THIS MORTGAGE.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly
executed the day and year first above written.
MORTGAGOR:
SPITZ, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
WITNESS AS TO BOTH
WITNESS AS TO BOTH
BY: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (SEAL)
-------------------------------------------
ATTEST: /s/ ▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
---------------------- ---------------------
[Corporate Seal]
In consideration of Mortgagee's advance of the proceeds of the Note and the
covenants and obligations of TN as set forth herein, and intending to be legally
bound hereby, TN has caused this Mortgage to be duly executed.
TRANSNATIONAL INDUSTRIES, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
WITNESS AS TO BOTH
BY: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (SEAL)
-------------------------------------------
ATTEST: /s/ ▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
---------------------- ---------------------
[Corporate Seal]
I hereby certify that the address of the above-named Mortgagee is ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
COMMONWEALTH OF PENNSYLVANIA :
:SS
COUNTY OF ▇▇▇▇▇▇▇ :
On this, the 14th day of January, 2004, before me, the undersigned officer,
appeared ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged themselves to be
the President and Executive President of, Spitz, Inc., a Delaware corporation,
and Transnational Industries, Inc., a Delaware corporation, and that they as
such, being authorized to do so, executed the foregoing instrument and
acknowledged that he executed the same for the purpose therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
NOTARY PUBLIC
My Commission Expires: (Notary Seal)
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Notary Public
▇▇▇▇▇▇ Twp., Delaware County
My commission expires June 16, 2007
RECORDING INFORMATION:
ALL THAT CERTAIN lot or parcel of land with buildings and improvements thereon
erected, Situate in the Township of Chadds Ford, County of Delaware, State of
Pennsylvania, bounded and described according to a Final Subdivision Plan for
Chadds From Plaza, made by Brandywine Valley Engineers, Aston, PA, dated
1/19/1998 and last revised 10/2/2002 as follows, to wit:
BEGINNING at a point of curve on the Southwesterly side of Brandywine Drive (60
feet wide), being a corner of Proposed Lot #2 (as shown on said plan); thence
from said point of beginning extending along said drive the three following
courses and distances: (1) on a line curving to the left having a radius of
425.00 feet an arc distance of 74.78 feet to a point; thence (2) South 48
degrees 55 minutes 22 seconds East 467.61 feet to a point of curve; thence (3)
on a line curving to the right having a radius of 250.00 feet an arc distance of
101.40 feet to a point, being a corner of lands now or late of ▇▇▇▇▇▇ ▇▇▇▇▇▇;
thence leaving said drive extending along lands of ▇▇▇▇▇▇ the two following
courses and distances: (1) South 64 degrees 18 minutes 55 seconds West 229.98
feet to a point; thence (2) South 25 degrees 41 minutes 05 seconds East 261.49
feet to a point on the title line in the bed of Baltimore Pike, being a corner
of lands of ▇▇▇▇▇▇; thence extending along said title line the three following
courses and distances: (1) South 66 degrees 53 minutes 00 seconds West 33.53
feet to a point; thence (2) South 60 degrees 12 minutes 00 seconds West 210.00
feet to a point; thence (3) South 57 degrees 55 minutes 00 seconds West 371.81
feet to a point, being a corner of other lands of ▇▇▇▇▇▇ Partners; thence
leaving said pike extending along said lands the three following courses and
distances: (1) North 20 degrees 56 minutes 06 seconds West 317.68 feet to a
point; thence (2) North 52 degrees 44 minutes 03 seconds West 339.59 feet to a
point; thence (3) North 25 degrees 49 minutes 00 seconds West 295.00 feet to a
point; thence still along said lands and along ▇▇▇ #▇ ▇▇▇▇▇ ▇▇ degrees 11
minutes 00 seconds East 743.13 feet to the first mentioned point and place of
beginning.
BEING Lot #3 on the above-mentioned Plan.
BEING Folio #04-00-00034-02.
BEING THE SAME PREMISES which ▇▇▇▇▇▇ Partners, a Pennsylvania limited
partnership, by Indenture bearing date the 14th day of January, 2004, duly
executed, acknowledged and delivered, and intended to be forthwith recorded,
granted and conveyed unto Spitz, Inc., a Delaware corporation, in fee.
EXHIBIT "A"
