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EXHIBIT 10.25
FORM OF
OPEN ENDED PENNSYLVANIA MORTGAGE
THIS IS AN OPEN-END MORTGAGE SECURING FUTURE
AND/OR REVOLVING ADVANCES UP TO A MAXIMUM
PRINCIPAL AMOUNT OF SIXTY-FIVE DOLLARS
($65,000,000) PLUS ACCRUED INTEREST AND OTHER
INDEBTEDNESS AS DESCRIBED IN 42 PA. C.S.A. Section 8143
OPEN-END MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
(All notices to be given to Administrative Agent pursuant to 42 Pa. C.S.A.
Section 8143 shall be given as set forth in Section 16 of this Agreement.)
THIS OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE
FILING (as the same may from time to time be amended, restated or otherwise
modified, this "Agreement") is made as of the 31st day of July, 2001,
[______________________________], a Pennsylvania corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Mortgagor") in favor of KEYBANK NATIONAL
ASSOCIATION, a national banking association, as administrative agent for the
Lenders, as hereinafter defined (in its capacity as agent, for the benefit of
and on behalf of the Lenders, "Administrative Agent").
WHEREAS, HAWK CORPORATION, a Delaware corporation ("Borrower"),
Administrative Agent, and the other financial institutions listed on Annex I to
the Credit Agreement, as hereinafter defined (collectively, together with their
respective successors and assigns, "Lenders" and, individually, "Lender"), are
parties to that certain Credit Agreement, dated as of May 1, 1998 (as amended
and as the same may from time to time be further amended, restated or otherwise
modified, the "Credit Agreement"; the capitalized terms defined therein and not
otherwise defined in this Agreement being used herein as therein defined),
pursuant to which the Lenders will, among other things, continue to grant to
Borrower the Loans, as defined in the Credit Agreement, and Letters of Credit,
as defined in the Credit Agreement, and other extensions of credit pursuant to
the Credit Agreement;
WHEREAS, Mortgagor, a subsidiary of Borrower whose financing is
provided by the Loans and Letters of Credit, deems it to be in the direct
pecuniary and business interests of Mortgagor that Borrower continue to obtain
from the Lenders the Commitment, as defined in the Credit Agreement, and the
Loans and Letters of Credit provided for in the Credit Agreement; and
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WHEREAS, Mortgagor understands that the Lenders are willing to continue
to grant such financial accommodations to Borrower only upon certain terms and
conditions, one of which is that Mortgagor execute and deliver this Agreement
and this Agreement is being executed and delivered in consideration of each
financial accommodation, granted to Borrower by Administrative Agent and the
Lenders and for other valuable considerations.
NOW, THEREFORE, TO SECURE TO ADMINISTRATIVE AGENT, for the benefit of
the Lenders, all of the following (collectively, the "Obligations"): (a) all
Loans and Letters of Credit; (b) all other indebtedness now owing or hereafter
incurred by Borrower to Administrative Agent or any Lender pursuant to the
Credit Agreement and any Note executed in connection therewith; (c) each
renewal, extension, consolidation or refinancing of any of the foregoing, in
whole or in part; (d) all interest from time to time accruing on any of the
foregoing, and all fees and other amounts payable by Borrower pursuant to the
Credit Agreement; (e) all obligations and liabilities of Borrower now existing
or hereafter incurred to Administrative Agent or any Lender (or any affiliate of
such Lender) under, arising out of, or in connection with any Hedge Agreement
between Borrower and the Administrative Agent or any Lender (or any of their
respective affiliates) in connection with the Obligations; (f) every other
liability, now or hereafter owing to Administrative Agent or any Lender by
Borrower or Mortgagor pursuant to the Credit Agreement or any other Credit
Document; (g) the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Agreement; and (h) the
performance of the covenants and agreements of Mortgagor contained in this
Agreement,
Mortgagor does hereby MORTGAGE, GRANT, CONVEY AND ASSIGN to
Administrative Agent, for the benefit of the Lenders, the real property
described in Exhibit A attached hereto and made a part hereof, together with all
present and future right, title and interest of Mortgagor therein or in any way
appertaining thereto, and all buildings, improvements and tenements now or
hereafter erected on the property, and all heretofore or hereafter vacated
alleys and streets abutting the property, and all easements, rights,
appurtenances, rents, royalties, mineral, oil and gas rights and profits, water,
water rights, and water stock appurtenant to the property, and all fixtures,
machinery, equipment, engines, boilers, incinerators, building materials,
appliances and goods of every nature whatsoever now or hereafter owned by
Mortgagor and located in, or on, or used, or intended to be used in connection
with the property, including, but not limited to, those for the purposes of
supplying or distributing heating, cooling, electricity, gas, water, air and
light; all cranes and materials handling equipment; and all elevators, and
related machinery and equipment, fire prevention and extinguishing apparatus,
security and access control apparatus, plumbing, bath tubs, water heaters, water
closets, stoves, refrigerators, dishwashers, disposals, washers, dryers,
awnings, storm windows, storm doors, screens, blinds, shades, curtains and
curtain rods, mirrors, cabinets, paneling, rugs, attached floor coverings,
furniture, fixtures, equipment; and all rentals, revenues, payments, repayments,
deposits, income, charges and moneys derived from the use, lease, sublease,
rental or other disposition of the property and the proceeds from any insurance
or condemnation award pertaining thereto; and all other property (tangible and
intangible) now owned or hereafter acquired by Mortgagor and used in, on or
about the subject real estate or arising from the operation of the property, all
of which, including replacements and additions thereto and proceeds therefrom,
shall be deemed to be and remain a part of the real property covered by this
Agreement; and all of the foregoing, including said real property, are herein
referred to as the "Property".
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TO HAVE AND TO HOLD, Mortgagor represents and warrants that (i)
Mortgagor is lawfully seized of the estate hereby conveyed and has the right to
mortgage, grant, convey and assign the Property, (ii) the Property is
unencumbered except for the matters approved by Administrative Agent and the
Lenders and described on Exhibit B attached hereto and made a part hereof
("Permitted Encumbrances"), and (iii) Mortgagor will warrant and defend
generally the title to the Property against all claims and demands whatsoever,
except as aforesaid.
Mortgagor and Administrative Agent, on behalf of the Lenders, covenant
and agree as follows:
1. Payment of Obligations. Mortgagor shall promptly pay and
perform all of the Obligations when due.
2. Open-End Mortgage. This Agreement constitutes an "Open-End
Mortgage" under 42 Pa. C.S.A. Section 8143 and secures obligations that include
future and/or revolving advances made pursuant to the Credit Agreement. The
total amount of the principal indebtedness that may be secured by this Agreement
may increase or decrease from time to time, but the total unpaid principal
balance so secured at any one time shall not exceed Sixty Five Million Dollars
($65,000,000), plus interest thereon, collection costs, sums advanced for the
payment of taxes, assessments, maintenance and repair charges, insurance
premiums and any other costs incurred to protect the security encumbered hereby
or the lien of this Agreement, expenses incurred by Administrative Agent or the
Lenders or the existing and future holders of the Notes by reason of any default
by Mortgagor under the terms of this Agreement, with interest on any such
advances and disbursements, together with all other sums secured hereby.
3. Insurance. Mortgagor shall keep all improvements now existing
or hereafter erected on the Property insured against loss by fire and such other
hazards, casualties, and contingencies in such form, written by Mortgagor, in
such amounts, for such period, and against such risks as may be acceptable to
Administrative Agent, with provisions satisfactory to Administrative Agent, for
payment of all losses thereunder to Administrative Agent, for the benefit of the
Lenders, and Mortgagor as its interest may appear (loss payable endorsement in
favor of Administrative Agent, for the benefit of Lenders), and, if required by
Administrative Agent, Mortgagor shall deposit the policies with Administrative
Agent. Any such policies of insurance shall provide for no fewer than thirty
(30) days prior written notice of cancellation to Administrative Agent. In the
event of foreclosure of this Agreement, all right, title, and interest of
Mortgagor in and to any insurance policies then in force shall pass to the
purchaser at foreclosure sale, and Administrative Agent is hereby appointed
attorney in fact for Mortgagor for the purpose of assigning and transferring
such policies and receiving all or any part of the proceeds therefrom. The
insurance proceeds or any part thereof may be applied by Administrative Agent,
at Administrative Agent's option, either to the reduction of the Obligations or
to restoration or repair of the property damaged.
4. Funds for Taxes, Insurance and Other Charges. Upon default in
payment by Mortgagor of any of the following described items, or upon the
occurrence of an Event of Default, as hereinafter defined, Administrative Agent
shall have the right, at Administrative Agent's option, to require Mortgagor to
pay to Administrative Agent on the first day of each month, until the
Obligations have been paid in full, a sum (herein "Funds") equal to one-twelfth
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of (a) the yearly water and sewer rates and taxes and assessments that may be
levied on the Property and (b) the yearly premium installments for fire and
other hazard insurance, rent loss insurance (if applicable) and such other
insurance covering the Property as Administrative Agent may require pursuant to
the Credit Agreement, all as reasonably estimated initially and from time to
time by Administrative Agent on the basis of assessments and bills and
reasonable estimates thereof. Any waiver by Administrative Agent of a
requirement that Mortgagor pay such Funds may be revoked by Administrative
Agent, in Administrative Agent's sole discretion, at any time upon notice in
writing to Mortgagor. Administrative Agent may require Mortgagor to pay to
Administrative Agent, in advance, such other Funds for other taxes, charges,
premiums, assessments and impositions in connection with Mortgagor or the
Property that Administrative Agent shall reasonably deem necessary to protect
Administrative Agent's interests (herein "Other Impositions"). Unless otherwise
provided by applicable law, Administrative Agent, at Administrative Agent's
option, may require Funds for Other Impositions to be paid by Mortgagor in a
lump sum (not exceeding Other Impositions due for a one-year period) or in
periodic installments.
The Funds shall be held by Administrative Agent and shall be
applied to pay such rates, rents, taxes, assessments, insurance premiums and
Other Impositions so long as no Event of Default has occurred. Administrative
Agent shall make no charge for so holding and applying the Funds, analyzing such
account or for verifying and compiling said assessments and bills, unless
Administrative Agent pays Mortgagor interest, earnings or profits on the Funds
and applicable law permits Administrative Agent to make such a charge. Unless
applicable law requires interest, earnings or profits on the Funds to be paid,
Administrative Agent shall not be required to pay Mortgagor any interest,
earnings or profits on the Funds. Administrative Agent shall give to Mortgagor,
without charge, an annual accounting of the Funds showing credits and debits to
the Funds and the purpose for which each debit to such Funds was made. The Funds
are pledged as additional security for the Obligations and shall be subject to
the right of set off.
If the amount of the Funds held by Administrative Agent at the
time of the annual accounting thereof shall exceed the amount deemed necessary
by Administrative Agent to provide for the payment of water and sewer rates,
taxes, assessments, insurance premiums, rents and Other Impositions, as such
payments become due, Administrative Agent (in its sole discretion) may either
(i) return the amount of the excess to Mortgagor or (ii) apply a part or all of
such excess at such time or times as Administrative Agent may elect to the
Obligations. If, at any time, the amount of the Funds held by Administrative
Agent shall be less than the amount deemed necessary by Administrative Agent to
pay water and sewer rates, taxes, assessments, insurance premiums, rents and
Other Impositions, as such payments become due, Mortgagor shall, on demand, pay
such deficiency. Upon the occurrence of an Event of Default, Administrative
Agent may apply, in any amount and in any order as Administrative Agent shall
determine, in Administrative Agent's sole discretion, any Funds held by
Administrative Agent at the time of application (A) to pay rates, rents, taxes,
assessments, insurance premiums and Other Impositions that are now or shall
hereafter become due; or (B) as a credit against sums secured by this Agreement.
Upon release of this Agreement and payment in full of the Obligations,
Administrative Agent shall promptly refund to Mortgagor any Funds held by
Administrative Agent.
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5. Charges; Mechanics Liens. Mortgagor shall pay all water and
sewer rates, rents, taxes assessments, premiums, and Other Impositions (not
being diligently contested by Mortgagor (a) in a timely manner and (b) with the
support of adequate financial reserves), attributable to the Property. Mortgagor
shall promptly discharge any lien that has, or may have, priority over or
equality with, the lien of this Agreement, other than Permitted Encumbrances.
If a mechanic's lien is filed against the Property, Mortgagor
shall promptly notify Administrative Agent and, at Administrative Agent's
request, shall deliver to Administrative Agent, either of the following, at
Mortgagor's option, (i) a cash deposit or (ii) an indemnity bond satisfactory to
Administrative Agent issued by a surety satisfactory to Administrative Agent, in
the amount claimed by any such lien, together with an additional sum necessary
to pay all costs, interest and penalties that may be payable in connection
therewith. Without Administrative Agent's prior written consent, Mortgagor shall
not allow any lien, encumbrance, or other interest in the Property to be
perfected against the Property, other than Permitted Encumbrances, unless
Mortgagor is then diligently contesting same and has, as to the lien,
encumbrance or interest being contested, complied with (i) or (ii) of the
preceding sentence.
6. Preservation and Maintenance of Property. Mortgagor (a) shall
not commit waste or permit impairment or deterioration of the Property; (b)
shall not abandon the Property; (c) shall, unless Administrative Agent withholds
insurance proceeds as security for or application to the Obligations as provided
in the Credit Agreement, restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent of its
original condition, or such other condition as Administrative Agent may approve
in writing, in the event of any damage, injury or loss thereto, whether or not
insurance proceeds are available to cover in whole or in part the costs of such
restoration or repair unless the improvements constituting the Property are (i)
totally destroyed, (ii) insurance has been maintained thereon as required by
this Agreement, and (iii) Administrative Agent applies the proceeds of such
insurance to payment of the Obligations; (d) shall keep the Property, including
improvements, fixtures, equipment, machinery and appliances, in good repair and
shall replace improvements, fixtures, equipment, machinery and appliances on the
Property owned by Mortgagor when necessary to keep such items in good repair;
(e) shall comply in all material respects with all laws, ordinances, regulations
and requirements of any governmental body applicable to the Property, including,
without limitation, the American with Disabilities Act, as it may be amended
from time to time; and (f) shall give notice in writing to Administrative Agent
of, appear in and defend, any action or proceeding purporting to affect the
Property, the security of this Agreement or the rights or powers of
Administrative Agent, except for any such action or proceeding caused by the
gross negligence or intentional misconduct of Administrative Agent. Unless
required by applicable law or unless Administrative Agent has otherwise
consented in writing, neither Mortgagor nor any tenant or other Person shall
remove, demolish or alter any improvement now existing or hereafter erected on
the Property or any fixture (other than trade fixtures), equipment, machinery or
appliance in or on the Property owned by Mortgagor and used or intended to be
used in connection with the Property, except as permitted pursuant to the Credit
Agreement.
7. Use of Property. Unless required by applicable law or unless
Administrative Agent has otherwise agreed in writing, Mortgagor shall not allow
changes in the use for which all or any part of the Property was intended at the
time this Agreement was executed. Mortgagor
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shall not initiate or acquiesce in a change in the zoning classification of the
Property without Administrative Agent's prior written consent.
8. Protection of Administrative Agent's Security. If Mortgagor
fails to perform the covenants and agreements contained in this Agreement, or if
any action or proceeding is commenced that affects the Property or title thereto
or the interest of Administrative Agent therein, including, but not limited to,
eminent domain, insolvency, enforcement of local laws, or arrangements or
proceedings involving a bankrupt or decedent, then Administrative Agent, at
Administrative Agent's option, may make such appearances, disburse such sums and
take such action as Administrative Agent deems necessary, in its sole
discretion, to protect the interests of Administrative Agent and the Lenders,
including, but not limited to, (a) disbursement of attorneys' fees; (b) entry
upon the Property to remedy any failure of Mortgagor to perform hereunder; and
(c) procurement of satisfactory insurance.
Any amounts disbursed by Administrative Agent pursuant to this
Section 8, with interest thereon, shall become part of the Obligations and shall
be secured by this Agreement. Unless Mortgagor and Administrative Agent agree in
writing to other terms of payment, such amounts shall be immediately due and
payable and shall bear interest from the date of disbursement, unless collection
from Mortgagor of interest at such rate would be contrary to applicable law, in
which event such amounts shall bear interest at the highest rate that may be
collected from Mortgagor under applicable law. Mortgagor hereby covenants and
agrees that Administrative Agent shall be subrogated to the lien of any mortgage
or other lien discharged, in whole or in part, by the Obligations. Nothing
contained in this Section 8 shall require Administrative Agent to incur any
expense or take any action hereunder.
The procurement of insurance of the payment of taxes or other
liens or charges by Administrative Agent shall not be a waiver of the right of
Administrative Agent or the Lenders to accelerate the maturity of any of the
Obligations secured by this Agreement. Administrative Agent's receipt of any
awards, proceeds or damages under the insurance or condemnation provisions of
the Credit Agreement or this Agreement shall not operate to cure or waive any
default in payment of sums secured by this Agreement.
9. Condemnation. Mortgagor shall promptly notify Administrative
Agent of any action or proceeding relating to any condemnation or other taking,
whether direct or indirect, of the Property, or part thereof, and Mortgagor
shall appear in and prosecute any such action or proceeding unless otherwise
directed by Administrative Agent in writing. Mortgagor authorizes Administrative
Agent, at Administrative Agent's option, as attorney-in-fact for Mortgagor, to
commence, appear in and prosecute, after the occurrence of an Event of Default,
in Administrative Agent's or Mortgagor's name, any action or proceeding relating
to any condemnation or other taking of the Property, whether direct or indirect,
and to settle or compromise any claim in connection with such condemnation or
other taking. The proceeds of any award, payment or claim for damages, direct or
consequential, in connection with any condemnation or other taking, whether
direct or indirect, of the Property, or part thereof, or for conveyances in lieu
of condemnation, are hereby assigned to and shall be paid to Administrative
Agent.
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With the consent of Administrative Agent, which consent may be withheld
in Administrative Agent's sole discretion, Mortgagor may apply such awards,
payments, proceeds or damages, after the deduction of Administrative Agent's
expenses incurred in the collection of such amounts, to restoration or repair of
the Property. Otherwise, such sums so received shall be applied to payment of
the Obligations. Mortgagor agrees to execute such further evidence of assignment
of any awards, proceeds, damages or claims arising in connection with such
condemnation or taking as Administrative Agent may reasonably require.
10. Estoppel Certificate. Mortgagor shall, within ten (10) days of
a written request from Administrative Agent, furnish Administrative Agent with a
written statement, duly acknowledged, setting forth the sums secured by this
Agreement and any right of set-off, counterclaim or other defense that exists
against such sums and any Obligations.
11. Uniform Commercial Code and Fixture Filing. This Agreement
shall also constitute a "fixture filing" under the Uniform Commercial Code, as
adopted in Pennsylvania for the purpose of perfecting Administrative Agent's
security interest in all of Mortgagor's property now owned or hereafter acquired
which is or becomes a "fixture" to the Property under the Uniform Commercial
Code, as in effect from time to time in Pennsylvania, with the names and
addresses of the "debtor" and "secured party" for such purpose being:
Debtor: [__________________________]
[____________]
[____________]
[____________]
Attn: President
Secured Party: KeyBank National Association,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Large Corporate Group
12. Leases of the Property. Mortgagor shall comply with and
observe Mortgagor's obligations as landlord or as tenant, as the case may be,
under any leases of the Property or any part thereof. Mortgagor shall furnish
Administrative Agent with executed copies of the leases now existing or
hereafter made of all or any part of the Property, and all future leases and
amendments or modifications thereto shall be subject to Administrative Agent's
prior written approval. Unless otherwise directed by Administrative Agent, all
leases of the Property made after the date hereof shall specifically provide
that such leases are subordinate to this Agreement; that the tenant attorns to
Administrative Agent, such attornment to be effective upon Administrative
Agent's acquisition of title to the Property; that the tenant agrees to execute
such further evidences of attornment as Administrative Agent may from time to
time request; and that the attornment of the tenant shall not be terminated by
foreclosure. Mortgagor shall not, without Administrative Agent's written
consent, execute, modify, surrender or terminate, either orally or in writing,
any lease hereafter made of all or any part of the Property, permit an
assignment or sublease of such a lease, or request or consent to the
subordination of any lease of all or any part of the Property to any lien
subordinate to this Agreement, provided that such leases are on commercially
reasonable terms. If Mortgagor becomes aware that any tenant proposes to do, or
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is doing, any act or thing that may give rise to any right to set-off against
rent, Mortgagor shall (a) take such steps as shall be reasonably calculated to
prevent the accrual of any right to a set-off against rent, (b) notify
Administrative Agent thereof and of the amount of said set-offs, and (c) within
twenty (20) days after such accrual, reimburse the tenant who shall have
acquired such right to set-off or take such other steps as shall effectively
discharge such set-off and as shall assure that rents thereafter due shall
continue to be payable without set-off or deduction.
13. Remedies Cumulative. Each remedy provided in this Agreement is
distinct and cumulative to all other rights or remedies under this Agreement or
the Credit Agreement or afforded by law or in equity, and may be exercised
concurrently, independently, or successively, in any order whatsoever.
14. Transfers of the Property; Changes in Control or Ownership of
Mortgagor. Except as expressly permitted pursuant to the Credit Agreement,
Mortgagor shall not (a) voluntary or involuntary sell, lease, exchange, assign,
convey, transfer or otherwise dispose of all or any portion of the Property (or
any interest therein), or all or any of the beneficial ownership interest in
Mortgagor, or (b) convey to any Person, other than Administrative Agent, a
security interest in the Property or any part thereof or voluntarily or
involuntarily permit or suffer the Property to be further encumbered.
15. Credit Agreement Provisions. Mortgagor agrees to comply with
the covenants and conditions of the Credit Agreement that is hereby incorporated
by reference in and made a part of this Agreement. All sums disbursed by
Administrative Agent to protect the security of this Agreement shall be treated
as Related Expenses. All such sums shall bear interest from the date of
disbursement. In the event of any conflict or inconsistency between this
Agreement and the Credit Agreement, the terms of the Credit Agreement shall
control. As used herein, "Related Expenses" shall mean any and all reasonable
costs, liabilities and expenses (including, without limitation, losses, damages,
penalties, claims, actions, reasonable attorneys' fees, legal expenses,
judgments, suits and disbursements) (a) incurred by Administrative Agent, or
imposed upon or asserted against Administrative Agent or any Lender, in any
attempt by Administrative Agent and the Lenders to (i) obtain, preserve,
perfect, or enforce any security interest evidenced by this Agreement, the
Credit Agreement, any Credit Document, or any other document, instrument or
agreement executed in connection with any of the foregoing; (ii) obtain payment,
performance or observance of any and all of the Obligations; or (iii) maintain,
insure, audit, collect, preserve, repossess or dispose of any of the Property or
any other collateral securing the Obligations, including, without limitation,
costs and expenses for appraisals, assessments and audits of Borrower or any
such collateral; or (b) incidental or related to (a) above, including, without
limitation, interest thereupon from the date incurred, imposed or asserted until
paid.
16. Notice. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to
Mortgagor, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn:
Vice President-Finance, if to any Lender, at its address specified for such
Lender on Annex I to the Credit Agreement, and if to Administrative Agent, at
the Notice Office, as defined in the Credit Agreement; or at such other address
as shall be designated by any party in a written notice to the other parties
hereto. All such notices and communications shall be mailed,
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telegraphed, telexed, telecopied, or cabled or sent by overnight courier, and
shall be effective when received. Notwithstanding the foregoing, (a) all notices
given to Administrative Agent by any person or entity (other than Mortgagor)
pursuant to 42 Pa. C.S.A. Section 8143(c) or (d) shall be in writing and shall
be sent exclusively by registered or certified mail, return receipt mail, return
receipt requested, to Administrative Agent at the address set forth above, and
(b) all notices given by Mortgagor to Administrative Agent pursuant to 42 Pa.
C.S.A. Section 8143(c) shall be given to Administrative Agent in writing, by
registered or certified mail, return receipt requested, and must be signed by
all parties necessary to bind Mortgagor in accordance with all applicable
documents of formation of Mortgagor and all applicable laws.
17. Successors and Assigns Bound; Agents; Captions. The covenants
and agreements herein contained shall bind, and the rights hereunder shall inure
to, the respective successors and permitted assigns of Administrative Agent, the
Lenders and Mortgagor. In exercising any rights hereunder or taking any actions
provided for herein, Administrative Agent may act through its employees, agents
or independent contractors as authorized by Administrative Agent. The captions
and headings of the Sections of this Agreement are for convenience only and are
not to be used to interpret or define the provisions hereof.
18. Governing Law; Severability. This Agreement shall be governed
by the laws of the State of Pennsylvania, without regard to principles of
conflicts of laws. In the event that any provision of this Agreement conflicts
with applicable law, such conflict shall not affect other provisions of this
Agreement that can be given effect without the conflicting provisions, and to
this end the provisions of this Agreement are declared to be severable.
19. Waiver of Marshaling. In the event of foreclosure of the lien
of this Agreement, the Property may be sold in one or more parcels or as an
entirety as Administrative Agent may elect.
Notwithstanding the existence of any other security interests
in the Property held by Administrative Agent, or by any other Person,
Administrative Agent shall have the right to determine the order in which any or
all of the Property shall be subjected to the remedies provided herein.
Administrative Agent shall have the right to determine the order in which any or
all of the Obligations are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Mortgagor, any Person that consents to
this Agreement, and any Person that now or hereafter acquires a security
interest in the Property and that has actual or constructive notice hereof,
hereby waives any and all right to require the marshaling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
20. Assignment of Rents; Appointment of Receiver; Agent in
Possession. Mortgagor hereby absolutely and unconditionally assigns and
transfers to Administrative Agent all of the leases, rents and revenues of the
Property, including those now due, past due, or to become due by virtue of any
lease or other agreement for the occupancy or use of all or any part of the
Property, regardless to whom the rents and revenues of the Property are payable.
Although this Agreement is a present assignment, Administrative Agent shall not
exercise any of the rights or powers herein conferred upon it until an Event of
Default shall have occurred. Mortgagor hereby authorizes Administrative Agent or
Administrative Agent's agents to collect the aforesaid rents
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and revenues and hereby directs each tenant of the Property to pay such rents to
Administrative Agent or Administrative Agent's agents. Upon the occurrence of an
Event of Default, and without the necessity of Administrative Agent entering
upon and taking and maintaining full control of the Property in person, by agent
or by a court appointed receiver, Administrative Agent shall immediately be
entitled to possession of all rents and revenues of the Property as specified in
this Section 20 as the same become due and payable (including but not limited to
rents then due and unpaid) and all such rents received by Mortgagor shall
immediately, upon delivery of such notice, be held by Mortgagor, as trustee for
the benefit of Administrative Agent only. This Section 20 may be supplemented by
a separate assignment of leases and rents agreement entered into by and between
Administrative Agent and Mortgagor, which instrument shall set forth more fully
Administrative Agent's rights with respect to the leases, rents and revenue of
the Property.
21. Assignment of Construction Rights. From time to time, as
Administrative Agent deems necessary to protect its interests, Mortgagor shall,
upon request of Administrative Agent, execute and deliver to Administrative
Agent, in such form as Administrative Agent shall direct, assignments of any and
all rights or claims that relate to the construction of improvements on the
Property and which Mortgagor may have against any Person supplying or who has
supplied labor, materials or services in connection with construction of the
Property.
22. Event of Default; Acceleration; Remedies. Each of the
following shall constitute an Event of Default hereunder, (a) if any Event of
Default, as defined in the Credit Agreement, occurs under the Credit Agreement,
(b) Mortgagor shall at any time deliver or cause to be delivered to
Administrative Agent a notice pursuant to 42 Pa. C.S.A. Section 8143 electing to
limit the indebtedness secured by this Agreement, or (c) if Mortgagor defaults
in the performance or observance of any of the covenants or agreements of
Mortgagor contained in this Agreement . In addition to any other right or remedy
that Administrative Agent may now or hereafter have at law or in equity, upon
the occurrence of an Event of Default, Administrative Agent shall have the right
and power (i) to foreclose upon this Agreement and the lien hereof; (ii) to sell
the Property according to law at one or more sales as an entirety or in parcels,
if applicable, and at such time and place upon such terms and conditions and
after such notices thereof as may be required by law; (iii) to enter upon and
take possession of the Property; and (iv) apply for the appointment of a
receiver, trustee, liquidator or conservator of the Property, without notice and
without regard for the adequacy of the security for the Obligations and without
regard for the solvency of Mortgagor or Borrower or any other Person liable for
the payment of the Obligations, or any thereof. If all sums secured by this
Agreement become immediately due and payable in accordance with this Section,
Administrative Agent, at Administrative Agent's option, may foreclose this
Agreement by judicial proceeding and may invoke any other remedies permitted by
applicable law or as provided herein. Administrative Agent shall be entitled to
collect all costs and expenses incurred in pursuing such remedies, including,
but not limited to, costs of documentary evidence abstracts, title reports and
attorneys' fees.
23. Indemnification. Mortgagor shall protect, indemnify and save
harmless Administrative Agent and the Lenders from and against all liabilities
and expenses (including, without limitation, reasonable attorneys' fees and
expenses, including those incurred in connection with appellate, bankruptcy and
post-judgment proceedings) imposed upon or incurred by or asserted against
Administrative Agent or any Lender, and not caused by the gross
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negligence or intentional misconduct of Administrative Agent or such Lender, by
reason of (a) ownership of this Agreement, the Property or any interest therein
or receipt of any rents, (b) any accident, injury to or death of persons or loss
of or damage to property occurring in, on or about the Property or any part
thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas or streets, (c) any use, non-use or condition in, on or about the
Property, or any part thereof, or on the adjoining sidewalks, curbs, adjacent
property, parking areas or streets, (d) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Agreement, or (e) the
performance of any labor or services or the furnishing of any materials or other
property in respect of the Property or any part thereof. The obligations of
Mortgagor under this Section 23 shall survive any termination or satisfaction of
this Agreement.
24. Hazardous Waste Covenants and Indemnification.
(a) Mortgagor covenants and warrants that Mortgagor's use
of the Property shall at all times comply with and conform, in all material
respects, to all laws, statutes, ordinances, rules and regulations of any
governmental, quasi-governmental or regulatory authority now or hereafter in
effect ("Laws") which relate to the transportation, storage, placement,
handling, treatment, discharge, release, generation, production or disposal
(collectively "Treatment") of any waste, waste products, petroleum or petroleum
based products, radioactive materials, poly-chlorinated biphenyls, asbestos,
hazardous materials or substances of any kind, pollutants, contaminants and any
substance which is regulated by any law, statute, ordinance, rule or regulation
(collectively "Waste"). Mortgagor further covenants that it shall not engage in
or permit any Person to engage in any Treatment of any Waste on or that affects
the Property except for activities which comply with all Laws in all material
respects.
(b) Except as specifically disclosed to Administrative
Agent in writing in any schedule to the Credit Agreement, Mortgagor has no
actual knowledge that the Property is the subject of any Notice, as hereinafter
defined, from any governmental authority or Person.
(c) Promptly upon receipt of any Notice from any Person,
Mortgagor shall deliver to Administrative Agent a true, correct and complete
copy of any written Notice or a true, correct and complete report of any
non-written Notice. Additionally, Mortgagor shall notify Administrative Agent
immediately after having knowledge or Notice of any Waste in or affecting the
Property. "Notice" shall mean any note, notice, information, or report of any of
the following:
(i) any suit, proceeding, investigation, order,
consent order, injunction, writ, award or action related to or
affecting or indicating the Treatment of any Waste in or affecting the
Property;
(ii) any spill, contamination, discharge,
leakage, release, threatened release, or escape of any Waste in or
affecting the Property, whether sudden or gradual, accidental or
anticipated, or of any other nature ("Spill");
(iii) any dispute relating to Mortgagor's or any
other Person's Treatment of any Waste or any Spill in or affecting the
Property;
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(iv) any claims by or against any insurer related
to or arising out of any Waste or Spill in or affecting the Property;
(v) any recommendations or requirements of any
governmental or regulatory authority, insurer or board of underwriters
relating to any Treatment of Waste or a Spill in or affecting the
Property;
(vi) any legal requirement or deficiency related
to the Treatment of Waste or any Spill in or affecting the Property; or
(vii) any tenant, licensee, concessionaire,
manager, or other Person occupying or using the Property or any part
thereof which has engaged in or engages in the Treatment of any Waste
in or affecting the Property in violation of applicable Laws.
(d) In the event that (i) Mortgagor has caused, suffered
or permitted, directly or indirectly, any Spill in or affecting the Property
during the term of this Agreement, or (ii) any Spill of any Waste has occurred
on the Property during the term of this Agreement, then Mortgagor shall
immediately take all of the following actions:
(A) notify Administrative Agent, as provided
herein;
(B) take all steps necessary or appropriate to
clean up such Spill and any contamination related to the Spill, all in
accordance with the requirements, rules or regulations of any local,
state or federal governmental or regulatory authority or agency having
jurisdiction over the Spill; provided that Mortgagor may contest any
such requirement, rule or regulation by appropriate proceedings
diligently and in good faith, so long as (1) Mortgagor provides
Administrative Agent, at Mortgagor's cost, such sureties, performance
bonds and other assurances as Administrative Agent may from time to
time request in respect of such Spill and contamination and the cleanup
thereof, (2) any governmental or other action against Mortgagor and the
Property is effectively stayed during Mortgagor's efforts so to
contest, and (3) in Administrative Agent's determination, a delay in
such clean-up will not result in or increase any loss or liability to
Administrative Agent;
(C) restore the Property, provided that such
restoration shall be no less than, but need not be more than, what is
otherwise required by applicable federal, state or local law or
authorities;
(D) allow any local, state or federal
governmental or regulatory authority or agency having jurisdiction
thereof to monitor and inspect all cleanup and restoration related to
such Spill; and
(E) at the written request of Administrative
Agent, post a bond or obtain a letter of credit for the benefit of
Administrative Agent (drawn upon a company or bank satisfactory to
Administrative Agent) or deposit an amount of money in an escrow
account under Administrative Agent's name upon which bond, letter of
credit or escrow Mortgagor may draw, and which bond, letter of credit
or escrow shall be in an
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amount sufficient to meet all of Mortgagor's obligations under this
Section 24; and Administrative Agent shall have the unfettered right to
draw against the bond, letter of credit or escrow in its discretion in
the event that Mortgagor is unable or unwilling to meet its obligation
under this Section 24 or, if Mortgagor fails to post a bond or obtain a
letter of credit or deposit such cash as is required herein, then
Administrative Agent, at Mortgagor's cost and expense, may, but shall
have no obligation to do so for the benefit of Mortgagor and do those
things that Mortgagor is required to do under clauses (B), (C) and (D)
of this subsection (d).
(e) Mortgagor hereby agrees that it shall indemnify,
defend, save and hold harmless Administrative Agent and the Lenders and their
respective officers, directors employees, agents, successors, assigns and
affiliates (collectively, "Indemnified Parties") against and from, and to
reimburse the Indemnified Parties with respect to, any and all damages, claims,
liabilities, losses, costs and expenses (including, without limitation,
reasonable attorneys', engineers' and consultants' fees and expenses, court
costs, administrative costs, costs of appeals and all clean up, administrative,
fines, penalties and enforcement costs of applicable governmental agencies) that
are incurred by or asserted against the Indemnified Parties by reason or arising
out of: (i) the breach of any representation, warranty or undertaking of
Mortgagor under this Section 24, or (ii) the Treatment of any Waste by Mortgagor
or any tenant, licensee, concessionaire, manager, or other Person occupying or
using the Property, in or affecting the Property, or (iii) any Spill governed by
the terms of this Section 24.
(f) The obligations of Mortgagor under this Section 24
shall survive any termination or satisfaction of this Agreement.
25. Priority of Mortgage Lien. Administrative Agent, at
Administrative Agent's option, is authorized and empowered to do all things
provided to be done by a mortgagee under Pennsylvania law, and any present or
future amendments or supplements thereto, as in effect from time to time, for
the protection of Administrative Agent's interests in the Property.
26. Adjustments to Maximum Liability. Anything in this Agreement
to the contrary notwithstanding, in no event shall the amount of the Obligations
secured by this Agreement exceed the maximum amount that (after giving effect to
the incurring of the obligations hereunder and to any rights to contribution of
Mortgagor from other affiliates of Borrower) would not render the rights to
payment of Administrative Agent and the Lenders hereunder void, voidable or
avoidable under any applicable fraudulent transfer law.
[Remainder of page intentionally left blank]
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27. JURY TRIAL WAIVER. MORTGAGOR, ADMINISTRATIVE AGENT AND THE
LENDERS WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THEM ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
IN WITNESS WHEREOF, Mortgagor has executed this Agreement as of the day
and year first set forth above.
MORTGAGOR:
[________________________________],
By:________________________________
Name:______________________________
Title:_____________________________
ATTEST:
___________________________________
Name:______________________________
Title:_____________________________
I certify that the address of Administrative Agent is:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
_________________________________
On Behalf of Administrative Agent
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On this 10th day of August, 2001, before me, a Notary Public in and for
said County and State, personally appeared _____________________________________
_____________, the _______________________ of [___________________________], a
Pennsylvania corporation, who acknowledged the signing of the foregoing
instrument on behalf of said corporation to be her/his free act and deed and the
free act and deed of said corporation for the uses and purposes set forth
therein.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio.
____________________________________
Notary Public
CERTIFICATE OF RESIDENCE
The undersigned certifies that the residence of Administrative
Agent is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇,
Attorney for Administrative Agent
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
PERMITTED ENCUMBRANCES
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