PURCHASE MONEY MORTGAGE
MADE this 28th day of January, 1998 by and between WATERSOFT,
INC., a Pennsylvania corp., with a business address at ▇.▇. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,(▇▇▇ "Mortgagor") and SEVEN FIELDS
DEVELOPMENT COMPANY, a PA Business Trust with a business
address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Mortgagee").
WHEREAS, in connection with the purchase by Mortgagor of that
certain real property situate in the Borough of Seven Fie1ds,
County of ▇▇▇▇▇▇, Commonwealth of Pennsylvania and more
particularly described in Exhibit A attached hereto and made a
part hereof (the "Land"), Mortgagor has executed and delivered to
Mortgagee a Mortgage Note dated of even date herewith (the
"Mortgage Note") in the principal sum four hundred eighty-seven
thousand , five hundred dollars ($487,500.00), the terms and
conditions of which are specifically incorporated
herein by reference.
NOW, THEREFORE, Mortgagor, in consideration of the debt evidenced
by the Mortgage Note and as security for the payment of the
Mortgage Note, does hereby grant and convey unto
Mortgagee, its successors and assigns, Mortgagor's interest in
the Land, together with all the buildings, structures and
improvements of every kind and description now or hereafter
erected or placed on the Land (the "Improvements").
TOGETHER with the revisions, reminders, easements, rents,
income, issues and profits arising or issuing from the Land and
from the Improvements thereon, including, but not limited to, the
rents, income, issues and profits arising or issuing from all
leases and subleases flow or hereafter entered into covering all
or any part of said Land and for the Improvements, all of which
leases, subleases, rents, issues and profits are hereby assigned
and, if requested by Mortgagee, shall be caused to be further
assigned to Mortgagee by Mortgagor. The foregoing
assignment shall include without limitation, cash or securities
deposited under leases to secure performance by lessees of their
obligations thereunder, whether such cash or securities are to be
held until the expiration of the terms of such leases or applied
to one or more installments of rent coming due prior to the
expiration of such term subject to the rights of lessees
thereunder Mortgagee, or any officer of Mortgagee, is hereby
irrevocably appointed attorney-in-fact for Mortgagor to collect
such rents, issues and profits alter default by Mortgagor, such
power being coupled with an interest. Mortgagor will execute and
deliver to Mortgagee on demand such assignments and instruments
as Mortgagee may require to implement, confirm, maintain and
continue the assignment hereunder.
ALL of which property hereinabove described, together with all of
which collateral is now existing or hereafter arising, now owned
or hereafter acquired, due or to become due, including
proceeds, products, and insurance proceeds to secure payment of
the Mortgage Note, being hereinafter collectively called the
"Mortgaged Property."
TO HAVE AND TO HOLD the same unto Mortgagee, its successors and
assigns, forever.
PROVIDED, HOWEVER, that if Mortgagor shall pay to Mortgagee the
debt evidenced by the Mortgage Note, and Mortgagor shall keep and
perform each of its other covenants, conditions
and agreements set forth in this Mortgage, then this Mortgage and
the estate hereby granted and conveyed shall become null and
void.
This conveyance is intended as a mortgage and is given for the
purpose of securing payment of the Mortgage Note and performance
of the other obligations of Mortgagor referred to above.
This Mortgage is executed and delivered subject to the following
covenants, conditions and agreements:
1. Payment of Principal and Interest. Mortgagor agrees to pay
when due to Mortgagee, the payments of principal and interest
evidenced by the Mortgage Note.
2.Impositions.
(a) Mortgagor's Duty to Pay. Until payment in full of the debt
evidenced by the Mortgage Note and termination of all
obligations, duties and commitments of Mortgagor under the
Mortgage Note, Mortgagor will (i) on or prior to the date on
which any interest or penalties shall commence to accrue thereon,
pay, discharge and upon request of Mortgagee furnish to
Mortgagee proper receipts for all taxes, general and special,
water and sewer rent charges, excise levies, vault and other
license or permit fees, city taxes, transit taxes, levies and
assessments of every kind and all charges for utilities and
utility services, and which may have been or may
hereafter be charged, assessed, levied, confirmed, imposed upon,
or grow or become due and payable out of, or in respect to, or
against, die Mortgaged Property, or any part thereof, or any
appurtenance thereto (collectively, the "Impositions"), by any
lawful authority or public utility, or which may become a lien
thereon, (ii) pay all ground rents reserved from the Mortgaged
Property and pay and discharge all mechanics' liens which may be
filed against said premises, (iii) pay and discharge any
documentary, stamp or other tax, including interest and penalties
thereon, if any, now or hereafter becoming payable hereon, (iv)
provide, renew and keep alive by paying the necessary premiums
and charges thereon such policies of hazard and liability
insurance upon the buildings and improvements now or hereafter
erected upon the Mortgaged Property as are required by this
Mortgage.
(b) Proof of Payment. Mortgagor, upon request of Mortgagee, will
furnish to Mortgagee within fifteen (15) days after the date when
any Impositions would become delinquent, official receipts
of the appropriate taxing authority or other authority to which
the charge is payable, or other evidence reasonably satisfactory
to Mortgagee evidencing the payment thereof.
(c) Evidence of Payment. The certificate, advice or ▇▇▇▇ of the
appropriate official designated by law to make or issue the same
or to receive payment of any Imposition, of nonpayment of such
imposition shall be prima facie evidence that such Imposition is
due and unpaid at the time of the making or issuance of such
certificate, advice or ▇▇▇▇.
3. Risk of loss: Insurance. Mortgagor, at its sole expense,
shall keep the Mortgaged Property continuously insured against
loss or damage by fire, earthquake and flood, with extended
coverage, and against such other hazards as Mortgagee may
reasonably require (including, without limitation, loss of
income) with an insurance company acceptable to Mortgagee, and in
such total amounts as Mortgagee may reasonably require from time
to time. In addition, Mortgagor shall carry comprehensive general
public liability insurance, naming Mortgagor and
Mortgagee as insureds, in such amounts as Mortgagee may from time
to time reasonably require. Mortgagor shall also carry rental
loss insurance. All policies, including policies for any amounts
carried in excess of the required minimum and policies not
specifically required by Mortgagee, shall be in form satisfactory
to Mortgagee, shall contain a waiver of subrogation endorsement,
shall be maintained in full force and effect, with premiums
prepaid, and shall provide for at least thirty (30) days' prior
notice of cancellation and modification to Mortgagee. Duplicate
originals of all policies shall be delivered to Mortgagee and
shall bc endorsed with a standard mortgagee
clause in favor of Mortgagee. If the insurance, or any part
thereof, shall expire, or be withdrawn, or become void by
Mortgagor's breach of any condition thereof, or become, in
Mortgagee's opinion, unsafe by reason of the financial condition
of any company in which the insurance may
then be carried, or if for any reason whatever the insurance
shall be unsatisfactory to Mortgagee, Mortgagor shall place new
insurance satisfactory to Mortgagee. All renewal policies, with
satisfactory evidence of premiums prepaid for one (1) year, shall
be delivered to Mortgagee at least thirty (30) days before
expiration of the old policies or succeeding renewals as the case
may be. In the event of loss covered by any property insurance,
Mortgagor will give immediate notice
thereof to Mortgagee, and Mortgagee may make proof of loss if not
made promptly by Mortgagor. Risk of loss of, damage to or
destruction of, the Mortgaged Property is and shall
remain upon Mortgagor.
4. Maintenance and Improvements. Mortgagor shall maintain the
Improvements in good order and condition, ordinary wear and tear
excepted. Mortgagor shall make no alteration ,addition or
structural change to the Mortgaged Property or any Improvement on
the property which has a cost or fair market value in excess of
$5,000.00 or remove or destroy any Improvement located
upon the Mortgaged Property, without the prior written consent of
Mortgagee which shall not be unreasonably withheld. In no event
shall Mortgagor undertake any alternation or addition to the
Mortgaged Property which reduces the economic value of the
Mortgaged Property.
5. Right to Remedy Defaults. In the event that Mortgagor should
fail to pay taxes, assessments, water and sewer charges or other
lienable claims or insurance premiums, or fail to make necessary
repairs or permit waste, or otherwise fail to comply with its
obligations hereunder~or under tile Mortgage Note, then
Mortgagee, at its election and without notice to
Mortgagor, shall have the right to make any payment or
expenditure which Mortgagor should have made, or which Mortgagee
deems advisable to protect the security of this Mortgage or the
Mortgaged Property, without prejudice to any of Mortgagee's
rights or remedies available hereunder or otherwise, at law or in
equity. All such Sums, as well as costs, advanced by
Mortgagee pursuant to this Mortgage shall be due immediately from
Mortgagor to Mortgagee and shall be secured hereby.
6. Tenant Leases. Mortgagor shall use its best efforts and shall
pursue all of its legal rights and remedies to cause all leases
for space in the Improvements which are entered into in the
future (collectively the "Tenant Leases") to remain in full force
and effect in accordance with their terms and will perform all of
its obligations thereunder and shall use its best efforts and
shall pursue its legal rights and remedies to cause all lessees
thereunder to perform all of their obligations under such Tenant
Leases and shall use its best efforts to obtain and deliver to
Mortgagee at such times as Mortgagee may reasonably request,
subordination agreements from tenants in the Improvements
subordinating their rights to possession of the improvements
under their leases to the lien of the Mortgage. Mortgagor shall
not: (a) execute an assignment or pledge of the Tenant leases or
the rents thereunder other than in favor of Mortgagee or the
holder of the First Mortgage, or (b) accept any prepayment of
rents due under any Tenant lease more than 30
days before the due date of such rents. Mortgagor shall not,
without the prior written notice to Mortgagee, amend, modify,
extend or consent to the surrender of any Tenant lease or give
any consent to any tenant pursuant to any Tenant Lease.
Mortgagor shall promptly (a) perform all of the provisions of the
Tenant leases on the part of the landlord thereunder to be
performed; (b) appear in and defend any action or proceeding in
any manner connected with the Tenant Leases or the obligations of
Mortgagor thereunder; (c) use its best efforts and pursue all of
its legal rights and remedies to, within twenty (20) days after a
request by Mortgagee, deliver to Mortgagee a certificate from
each tenant under the Tenant leases identifying such Tenant lease
with particularity and stating that no default by Mortgagor
or such tenant has occurred under tile applicable Tenant lease
and no rent thereunder has been prepaid except for the current
month; (d) within ten (10) days alter request by Mortgagee,
deliver to Mortgagee a written statement containing the names of
all tenants, the terms of all Tenant leases and the spaces
occupied and rentals payable thereunder, and a statement of all
Tenant Leases which are then in default, including the nature of
the default; (e) deliver to Mortgagee promptly copies of any
notices of default which Mortgagor may at any time forward
to or receive from a tenant of any Tenant lease; and (f) within
ten (10) days after execution, deliver to Mortgagee a copy of a
fully executed counterpart of each Tenant lease.
7. Inspection. Mortgagee shall have the right to enter upon the
Mortgaged Property at any reasonable hour for the purpose of
inspecting the order, condition and repair of the Mortgaged
Property.
8. Compliance with laws. Mortgagor shall comply with all present
and future laws, ordinances, rules and regulations of any
governmental authority having an effect on Mortgagor or the
Mortgaged Property. Mortgagor agrees that all Improvements on the
Mortgaged Property, whether now existing or hereinafter erected,
shall at all times comply with all local, state and
federal building and safety statutes, ordinances, regulations,
and requirements.
9. Further Assurances. Mortgagor will, from time to time, make,
do, execute and acknowledge, as the situation may require from
time to time, such further acts, deeds, conveyances, mortgages,
security agreements, financing statements, continuation
statements and other assurances in law
as may be required for the purpose of effectuating the intent
hereof and for better assuring and confirming to Mortgagee, its
successors and assigns, the lien and security interest created by
this Mortgage.
10. Warranty of Title: Liens. Except for exterior renovation to
the Improvements to be performed by Mortgagee, Mortgagor will
pay, or bond, or cause to be paid or bonded, from time
to time when the same shall become due, all claims and demands of
mechanics, materialmen, laborers, and others which, if unpaid,
might result in, or permit the creation of, a lien on the
Mortgaged Property or any part thereof, or on the revenues,
rents, issues, income and profits arising therefrom. Mortgagor
hereby warrants and covenants that it is the lawful owner of a
fee simple interest in the Land and the Improvements; that
Mortgagor has good right and lawful
authority to convey and encumber the same; and that the Mortgaged
Property is free and clear from all liens and encumbrances except
for liens in favor of Mortgagee, liens and emcumbrances
consented to in writing by Mortgagee, and the first mortgage lien
held by Pittsburgh Home Savings Bank recorded in the real estate
records of ▇▇▇▇▇▇ County at MBV, Page the "FirstMortgage"). This
Mortgage is subject and subordinate to the First Mortgage.
Mortgagor will do or cause to be done everything necessary so
that the lien and priority of this Mortgage shall be
fully preserved, at the sole cost of Mortgagor, without expense
to Mortgagee.
11. Transfer of Property. Whenever Mortgagor sells or otherwise
transfers a townhouse apartment dwelling unit and/or any plot of
land upon which such unit is placed, as shown on any
recorded map or plat of the Mortgaged Property (a "Unit"),
Mortgagee shall promptly, upon request of Mortgagor and subject
to Mortgagee's receipt of a payment equal to the sum of
$7,500.00 plus interest accrued thereon pursuant to the terms of
the Mortgage Note) for each such Unit sold or transferred,
release the particular Unit or Units from the lien created by
this Mortgage, and shall file in the Recorder's Office of ▇▇▇▇▇▇
County such statement of release or partial release as may be
requested by Mortgagor. Payments received by Mortgagee pursuant
to this paragraph 11 shall be applied by Mortgagee towards
repayment of the indebtedness secured hereby until such
indebtedness is paid in full.
12. Events of Default: Any one or more of the following which
continues or shall exist beyond any applicable grace period or
notice, if any, shall constitute an Event of Default hereunder:
(a) Failure of Mortgagor to pay any installment of principal or
interest or any other sum on the date when it is due under the
Mortgage Note or this Mortgage if such failure continues for
thirty (30) consecutive days; or
(b) Mortgagor's nonperformance of or noncompliance with any of
the other agreements, conditions, covenants, provisions or
stipulations contained in the Mortgage Note or in this
Mortgage which continues for a period of thirty (30) consecutive
days; or
(c) If Mortgagor shall make a general assignment for the benefit
of its creditors, or shall admit in writing its inability to pay
its debts as they become due, or shall file a petition in
bankruptcy, or shall be adjudicated bankrupt or insolvent, or
shall file a petition seeking any relief under any present or
future statute, law or regulation relating to bankruptcy or
insolvency or shall file an answer admitting or not contesting
the material allegations of a petition filed against it in any
such proceeding or shall seek or consent to or acquiesce in the
appointment of any trustee or receiver of itself or any material
part of its properties; or
(d) If, within sixty (60) days after the commencement of any
proceeding against Mortgagor seeking any relief under any present
or future statute, law or regulation relating to bankruptcy or
insolvency, such proceeding shall not have been dismissed, or if,
within sixty (60) days after the appointment without the consent
or acquiescence of Mortgagor of any trustee or receiver of
Mortgagor or of any material part of its properties, such
appointment shall not have been vacated; or
(e) One or more judgments for the payment of money shall be
rendered against Mortgagor and, within sixty (60) days after the
entry thereof, such judgment shall nor have been discharged or
execution thereof stayed pending appeal1 or if, within sixty (60)
days alter the expiration of such stay, such judgment shall not
have been discharged unless such judgment is being contested in
good faith and Mortgagor has posted security or provided
reasonable assurance of the ability to pay any such judgment
satisfactory to Mortgagee in its reasonable discretion; provided,
in any event, any such judgment shall be satisfied prior to any
action being taken to enforce such judgment or to sell or possess
any assets in satisfaction or such judgment; or
(f) If any representation or warranty made by Mortgagor in this
Mortgage or other document furnished to Mortgagee pursuant to
this Mortgage proves to be false or misleading in any
material respect; or
(g) If Mortgagee shall have determined (which determination shall
be conclusive if made in good faith) a material adverse change
has occurred in the financial condition of Mortgagor; or
(h) If foreclosure proceedings are instituted against the
Mortgaged Property upon any other lien or claim whether alleged
to be superior or junior to the lien of this Mortgage; or
(i) Any action or proceeding is commenced, excepting an action
to foreclose this Mortgage or to collect the debt secured hereby,
to which action or proceeding Mortgagee is made a party by
reason of the execution of this Mortgage or the Mortgage Note, or
in which it becomes necessary (unless such necessity arises from
the gross negligence or willful misconduct of Mortgagee) to
defend or uphold the lien of this Mortgage or the priority
thereof or possession of the Mortgaged Property, or otherwise
protect the security hereunder; or
(j) If the Improvements are substantially damaged or destroyed by
an uninsured or inadequately insured casualty; or
13. Remedies.
(a) If an Event of Default shall occur, the entire debt secured
hereby shall become immediately due and payable, without
presentment, demand, protest, or notice of any kind, all of which
are hereby expressly waived, and Mortgagee may forthwith, and
without further delay, undertake any one or more of the actions
specified in this paragraph 13:
(1) Foreclosure. Institute an action of mortgage foreclosure, or
take such other action as the law may allow, at law or in equity,
for the enforcement thereof and realization on the mortgage
security or any other security which is herein or elsewhere
provided for, and proceed thereon to final judgment and execution
thereon for the entire unpaid balance of the principal
indebtedness, with interest, at the rates and pursuant to the
methods of calculation specified in the Mortgage Note and this
Mortgage to the date of default and thereafter at the rate
provided in the Mortgage Note together with all other sums
secured by this Mortgage, all costs of suit, interest at the rate
specified in the Mortgage Note on any judgment obtained by
Mortgagee from and after the date of any Sheriff's Sale of the
Mortgaged Property (which may be sold in one parcel or in such
parcels, manner or order as Mortgagee shall elect) until actual
payment is made by the Sheriff of the full amount due Mortgagee,
and an attorneys' reasonable conirnission for collection, without
further stay, any law, usage or custom to the contrary
notwithstanding,
(2) Entry. Mortgagee personally, or by its agents or attorneys,
may enter into and upon all or any part of the Mortgaged
Property, and each and every part thereof, and may exclude
Mortgagor, its agents and servants wholly therefrom without
liability for trespass, damages or otherwise and Mortgagor agrees
to surrender possession to Mortgagee on demand after the
happening of any event of Default; and having and holding the
same, may use, operate, manage and control the Mortgaged Property
and conduct the business thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or
receivers; and upon every such entry, Mortgagee, at the expense
of the Mortgaged Property, from time to time, either by purchase,
repairs or construction, may maintain and restore the Mortgaged
Property, whereof it shall become possessed as aforesaid, may
complete the construction of the buildings, structures and
improvements and in the course of such completion may make such
changes in the contemplated or completed buildings, structures
and improvements as it may deem desirable and may insure the
same; and likewise, from time to time, at the expense of the
Mortgagor, Mortgagee may make all necessary or proper repairs,
renewals and replacements and such useful alterations, additions,
betterments and improvements thereto and thereon as to it may
deem advisable; and in every such case Mortgagee shall have the
right to manage and operate the Mortgaged Property and to carry
on the business thereof and exercise all rights and powers of
Mortgagor with respect thereto either in the name of Mortgagor or
otherwise as it shall deem best; and in addition to Mortgagee's
right to collect all earnings, revenues, rents issues, profits
and income prior to taking possession of the Mortgaged Property,
Mortgagee shall be entitled to collect and receive all earnings,
revenues, rents, issues, profits and income of the Mortgaged
Property and every part thereof, and after deducting the expenses
of conducting the business thereof and of all maintenance,
repairs, renewals, replacements, alterations, additions,
betterments and improvements and amounts necessary to pay for
taxes, assessments, insurance and prior or other proper charges
upon the Mortgaged Property or any part thereof, as well as
just and reasonable compensation for the services of Mortgagee
and for all attorneys, counsel, agents, clerks, servants and
other employees by it properly engaged and employed, Mortgagee
shall apply the moneys arising as aforesaid to the payment of the
debt. Should Mortgagee collect all earnings, revenues, rents
issues, profits and income from the Mortgaged Property, the
moneys so collected shall not be substituted for payment of the
debt nor can they be used to cure the default, without prior
written consent of the Mortgagee.
(3) Receivership,. Have a receiver appointed to enter into
possession of the Mortgaged Property, collect the earnings,
revenues, rents, issues, profits and income therefrom and apply
the same as the court may direct. Mortgagee shall be entitled to
the appointment of a receiver without the necessity of proving
either the inadequacy of the security or the insolvency of
Mortgagor or any other person who may be legally or equitably
liable to pay moneys secured hereby and Mortgagor and each such
person shall be deemed to have waived such proof and to have
consented to the appointment of such receiver. Should Mortgagee
or any receiver collect earnings, revenues, rents, issues,
profits or income from the Mortgaged Property, the moneys so
collected shall not be substituted for payment of the debt nor
can they be used to cure the default, without the prior written
consent of Mortgagee. Mortgagee shall be liable to account
only for earnings, revenues, rents, issues, profits and income
actually received by Mortgagee.
(4) Sale of personal property. Mortgagee shall have such rights
and remedies in respect of so much of the Mortgaged Property as
may, under applicable law, be personal property, or any part
thereof, as are provided by the Code and such other rights and
remedies in respect thereof which it may have at law or in equity
or under this Mortgage, including without limitation the right to
take possession of the Mortgaged Property wherever located and to
sell all or any portion thereof at public or private sale,
without prior notice to Mortgagor1 except as otherwise required
by law (and if notice is required by law, after 10 days' prior
written notice), at such place or places and at such time or
times and in such manner and upon such terms, whether for cash or
on credit, as Mortgagee in its sole discretion may determine.
Mortgagee shall apply the. proceeds of any such sale to the
payment of the principal indebtedness secured hereby.
(5) Sale of the Property. Mortgagee may sell any of the Mortgaged
Property, not specifically designated as personal property and
subject to subparagraph (4) above, in such a manner as it
deems appropriate and in accordance with any applicable law.
Mortgagee shall apply the proceeds of any such sale first to the
payment of the indebtedness secured hereby.
(b) Rights in Pursuit of Remedies. Upon the occurrence of an
Event of Default, Mortgagee in pursuance of the foregoing
remedies, or in addition thereto, (i) shall be entitled to resort
to its several securities for the payment of the sums secured
hereby in such order and manner as Mortgagee may think fit
without impairing Mortgagee's lien in, or rights to, any of such
securities and without affecting the liability of any person,
firm or corporation for the sums secured hereby, except to the
extent that the indebtedness shall have been reduced by the
actual monetary consideration, if any, received by Mortgagee from
the proceeds of such security; (ii) may, in Mortgagee's sole
discretion, release for such consideration, or none, as Mortgagee
may require, any portion of the Mortgaged Property without, as
to the remainder of the security, in any way impairing or
affecting the lien of this Mortgage, or the priority thereof, or
improving the position of any subordinate lienholder with respect
thereto, except to the extent that the indebtedness shall have
been reduced by the actual monetary consideration, if any,
received by Mortgagee for such release; and/or (iii) may accept
the assignment or pledge of any other property in place thereof
as Mortgagee may require without being accountable for so doing
to any other lienor.
(c) Waiver. Mortgagor hereby waives and releases (i) all errors,
defects and imperfections in any proceedings instituted by
Mortgagee under this Mortgage, (ii) all benefit that might accrue
to Mortgagor by virtue of any present or future laws exempting
the Mortgaged Property, or any part of the proceeds arising from
any sale thereof, from attachment, levy or sale under execution,
or providing for any stay of execution, exemption from civil
process, or extension of time for payment, and (iii) all notices
not herein elsewhere specifically required, of Mortgagor's
default or of Mortgagee's exercise, or election to exercise, any
option under this Mortgage. Mortgagor further agrees to waive the
issuance and service of process and enter its voluntary
appearance in any action, suit or proceeding brought in
connection with any Event of Default and if required by
Mortgagee, to consent to the appointment of a receiver or
receivers of the Mortgaged Property and of all the earnings,
revenues, rents, issues, profits and income thereof. Mortgagor
will not at any time insist upon, or plead, or in any manner
whatever, claim or take any benefit or advantage of any right
under any statute heretofore or hereafter enacted to redeem the
property so sold, or any part thereof, and Mortgagor hereby
expressly waives all benefit or advantage of any such Law or
laws, and covenants not to hinder, delay or impede the execution
of any power herein granted or delegated to Mortgagee, but to
suffer and permit the execution of every power as though no such
law or laws had been made or enacted. Mortgagor, for itself and
all who may claim under it, waives, to the extent that it
lawfully may, all right to have the Mortgaged Property marshaled
upon any foreclosure hereof.
(d) Injunctive Relief. In the event of any breach or threatened
breach by Mortgagor of any of the covenants, agreements, terms or
conditions contained in this Mortgage, Mortgagee shall be
entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right and remedy allowed at law or
in equity or by statute or otherwise as though other remedies
were not provided for in this Mortgage.
(e) Continued Lien of Mortgage. No recovery of any judgment by
Mortgagee and no levy of an execution under any judgment upon the
Mortgaged Property or upon any other property of Mortgagor shall
affect in any manner or to any extent, the lien of this Mortgage
upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Mortgagee hereunder, but such
liens, rights, powers and remedies of Mortgagee shall continue
unimpaired as before.
(f) Subordination of Tenants' Rights under Leases. In the event
that Mortgagee shall have the right to foreclose this Mortgage,
Mortgagor authorizes Mortgagee at its option to foreclose this
Mortgage, subject to the rights of any tenants of the Mortgaged
Property if Mortgagee .elects that this Mortgage shall be
subordinate to rights of tenants, and the failure to make any
such tenants parties defendant to any such foreclosure proceeding
and to foreclose their rights will not be asserted by Mortgagor
as a defense to any proceeding instituted by Mortgagee to collect
the indebtedness or any deficiency remaining unpaid after the
foreclosure sale of the Mortgaged Property.
14. Application of Proceeds of Foreclosure. Mortgagee shall
apply the proceeds of any foreclosure sale of or other
disposition or realization upon the Mortgaged Property:
(a) First, to the payment or reimbursement of all reasonable
advances, expenses and disbursements of Mortgagee (including,
without limitation, the reasonable fees and costs of its
counsel and agents) incurred in connection with the
administration and enforcement of, or the preservation of any
rights under, this Mortgage;
(b) Second, in satisfaction of the debt evidenced by the Mortgage
Note, whether for principal, interest or expenses in such order
as Mortgagee shall designate; and
(c) Third, the balance, if any, to be distributed to Mortgagor or
as otherwise required by law.
15. Condemnation. Mortgagor agrees that the proceeds of any award
or claim for damages, direct or consequential, in connection with
any condemnation, or other taking of the Mortgaged Property, or
any part thereof, or for conveyance in lieu of condemnation, are
hereby assigned arid shall be paid to Mortgagee, up to the amount
owing under the terms of the Mortgage Note or this Mortgage.
16. Forbearance by Mortgagee: Remedies Cumulative. Any
forbearance by Mortgagee in exercising any right or remedy
hereunder or otherwise afforded by law, shall not be deemed a
waiver of or preclude the later exercise of such right or remedy.
The payment of insurance premiums, taxes, or other hens or
charges by Mortgagee shall not be a waiver of Mortgagee's
right to accelerate the maturity of the indebtedness secured by
this Mortgage. All remedies provided in this Mortgage are
distinct from and cumulative to any other right or remedy under
this Mortgage or afforded by law or equity, and may be exercised
concurrently, independently or successively.
17. Agreements Continuing, Absolute. The agreements and
obligations of Mortgagor hereunder are continuing agreements and
obligations, and are absolute and unconditional irrespective of
the genuiness, validity or enforceability of the Mortgage Note or
any other agreement or agreements now or hereafter entered into
by Mortgagee and/or Mortgagor pursuant to which the debt
evidenced by the Mortgage Note or any part thereof is issued or
of any other circumstance which might otherwise constitute a
legal or equitable discharge of such agreements and
obligations; without limitation upon the foregoing, the
agreements and obligations of Mortgagor shall not in any such way
be affected by (i) any renewa1, refinancing or refunding of such
debt in whole or in part, (ii) any extension of the time of
payment of the Mortgage Note or other instrument or instruments
now or hereafter evidencing the debt or any part thereof, (iii)
any amendment to or modification of the terms of the Mortgage
Note or any other agreement or agreements now or hereafter
entered into by Mortgagee and Mortgagor pursuant to which the
debt or any part thereof is issued or secured, (iv) any
substitution, exchange or release of, or failure to preserve,
perfect or protect, or other dealing in respect of, the Mortgaged
Property or any other property or any security for the payment of
the debt evidenced by the Mortgage Note or any part thereof, (v)
any bankruptcy, insolvency, arrangement, composition, assignment
for the benefit of creditors or similar proceeding commenced by
or against Mortgagor or (vi) any other matter or thing whatsoever
whereby the agreements and obligations of Mortgagor hereunder
would or might otherwise be released or discharged.
18. Partial Invalidity. The invalidity per se or in any
application of any one or more paragraphs of this Mortgage or any
part of any thereof shall not affect the remaining portions of
this Mortgage, all of which are inserted conditionally on their
being held valid in law.
19. Amendment: Successors and Assigns. This Mortgage cannot be
changed or amended except by an agreement in writing signed by
the party against whom enforcement is sought. The covenants,
conditions and agreements contained in this Mortgage shall bind,
and the benefits thereof shall inure to, tile parties hereto and
their respective heirs, executors, administrators, successors and
assigns.
20. Notices: Any notices, or other communications required or
permitted hereunder shall be given by personal delivery or sent
by registered or certified mail, postage prepaid, to the parties
at their addresses set forth above, or to such other address as
either party may designate in writing from time to time.
21. Governing Law. This Mortgage shall be governed by the law of
Pennsylvania. This provision shall not limit the applicability of
federal law to this Mortgage.
IN WITNESS WHEREOF, and intending to be legally bound, Mortgagor
has executed and delivered this Mortgage on the day and year set
forth at the beginning of this Mortgage.
MORTGAGOR:
WATERSOFT, INC.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President