AMENDED AND RESTATED NORTHEAST LAND CO. MORTGAGE Pennsylvania
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AMENDED AND RESTATED NORTHEAST LAND CO. MORTGAGE Pennsylvania
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I hereby certify that the address
Record and Return to:
of the Mortgagee is:
Manufacturers and Traders Trust Company
M & T BANK
One M & T Plaza
Collateral and Documentation Department
Buffalo, New York 14240
P.O. Box 1358
Attn: General Counsel’s Office
Buffalo, NY 14240
/s/ JOSEPH E. KLUGER, ESQUIRE
On behalf of Mortgagee
THIS IS AN OPEN-END MORTGAGE
SECURING FUTURE ADVANCES UP TO
A MAXIMUM PRINCIPAL AMOUNT OF
$ 4,600,000.00 PLUS ACCRUED
INTEREST AND OTHER INDEBTEDNESS
AS DESCRIBED IN 42.PA. C.S.A.§8143
THIS AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF LEASES, and SECURITY AGREEMENT (this “Mortgage” ) dated July 29, 2011, is made by Northeast Land Co., a Pennsylvania corporation whose address is Route 940 and Moseywood Road, P.O. Box 707, Blakeslee, Pennsylvania 18610-0707 (the “Mortgagor” ) in favor of MANUFACTURERS AND TRADERS TRUST COMPANY (the “Bank” ), a New York banking corporation with banking offices at One M & T Plaza, Buffalo, New York 14240 Attention: Office of General Counsel. This amends a similar mortgage dated July 29, 2010 in the amount of $2,600,000 and is intended to reflect an increase in the obligation of the Mortgagor to the Bank.
Obligations Secured . This Mortgage is executed, acknowledged and delivered by the Mortgagor to secure and enforce the following obligations and liabilities:
Present and Future Obligations. ANY AND ALL PRESENT AND FUTURE OBLIGATIONS AND INDEBTEDNESS OF EVERY KIND AND DESCRIPTION OF THE MORTGAGOR TO THE BANK OR ANY AFFILIATE (as herein defined), including (i) all sums due under the Loan Documents (as herein defined) in connection with financial accommodations in the principal amount of up to Four Million Six Hundred Thousand Dollars ($4,600,000.00); and (ii) any other indebtedness and obligations for the payment of money now existing or arising in the future, direct or indirect, absolute, absolute or contingent (including those arising by operation of law), due or to become due, contractual or tortious, liquidated or unliquidated, now or hereafter owing by the Mortgagor or any Obligor to the Bank, or its successors or assigns, or its Affiliates, whether or not allowed as a claim against the Mortgagor in bankruptcy, all extensions, renewals, refinancings, modifications and replacements and all interest and related charges, and reinstated Obligations, fees, late fees, expenses, attorneys’ fees and costs or allocated fees and costs of the Bank’s in-house legal counsel, that have been or may hereafter be contracted or incurred (collectively, the “Obligations” ); and
Performance; Loan Documents. The performance of all of the terms, covenants, conditions, agreements, obligations and liabilities of the Mortgagor or any Obligor under this Mortgage or any and all credit accommodations, loan agreements, notes, guaranties and any other agreements and documents, now or hereafter existing, creating, evidencing, guarantying, securing or relating to any or all of the Obligations, together with all amendments, modifications, substitutions, renewals or extensions thereof(all of the foregoing collectively referred to as the “Loan Documents” ).
The Obligations secured by this Mortgage were obtained solely for the purpose of carrying on or acquiring a business or commercial investment and not for residential, consumer or household purposes. If the Obligations are residential, consumer or household in nature, then the Confession of Judgment in Paragraph L(3) is not applicable. This Mortgage secures payment of any and all of the Obligations, but the maximum principal amount of the Indebtedness secured, or which by any contingency may be secured hereby, is the amount first stated above and if the amount of the Obligations outstanding at any time exceeds said maximum amount secured, all payments in reduction of the Obligations shall be applied first to such excess not secured hereby and the lien of this Mortgage shall continue until all Obligations secured hereby, including outstanding contingent liabilities, if any, are finally and irrevocably paid in full.
Definitions . As used herein, the following terms shall have the following meanings:
Affiliate. The term “Affiliate” means M&T Bank Corporation and any of its direct and indirect affiliates and subsidiaries.
Obligor. The term “Obligor” means the Mortgagor and each and every other maker, endorser, guarantor or surety of or for the Obligations, and any other party granting a security interest or other lien or encumbrance on any of its property to secure the Obligations. If the name of the person(s) or entity(ies) inserted in the space at the end of this paragraph is different from the name of Mortgagor identified on page one of this Mortgage, then this Mortgage has also been granted to the Bank to secure, in part, one or more guaranties of the following person(s) or entity(ies) or the Mortgagor has granted the Mortgage to the Bank to secure, in part, the following person’s or entity’s obligations to the Bank without a guaranty, and the term “Obligor” shall also include the following person(s) or entity(ies): Blue Ridge Real Estate Company, BBC Holdings, Inc., BRRE Holdings, Inc., Big Boulder Corporation, Lake Mountain Company, Jack Frost Mountain Company, Boulder Creek Resort Company, Moseywood Construction Co., Individually and d/b/a Stoney Run Realty Company and d/b/a Stoney Run Builders Company, and Jack Frost National Golf Course, Inc.
Uniform Commercial Code. The term “Uniform Commercial Code” means the Uniform Commercial Code as the same may be in effect in the Commonwealth of Pennsylvania, as amended from time to time.
Grant of Mortgage. To secure the payment and performance of all Obligations, the Mortgagor hereby mortgages, grants, conveys and assigns to the Bank, and grants to the Bank a lien on and a security interest in, all of the land, buildings, improvements, fixtures, equipment, easements, rights, appurtenances, leases, rents, contract rights and all of the following property, whether presently in existence or to come into existence at some future time (collectively, the “Mortgaged Property” ):
Municipality/County/State: Tunkhannock Township, Monroe County, Pennsylvania and Kidder Township, Carbon County,
Tax Lot and Block/Parcel ID No.: See attached
as more fully described in the attached Schedule A, together with all buildings, structures and improvements of every kind erected thereon (the “Real Property” );
Fixtures; Leases; Estates, etc. All fixtures, machinery, equipment and other articles of real, personal or mixed property attached to, situate or installed in or upon, or used in the operation or maintenance of, the Real Property or any plant or business situated thereon, whether or not such real, personal or mixed property is or shall be affixed to the Real Property, and all replacements, substitutions, accretions and proceeds of the foregoing (collectively, “Fixtures” ). All leases, licenses, occupancy agreements or agreements to lease all or any part of the Real Property and all extensions, renewals, amendments, and modifications thereof, and any options, rights of first refusal or guarantees relating thereto (collectively, “Leases” ); all rents, income, receipts, revenues, security deposits, escrow accounts, reserves, issues, profits, awards and payments of any kind payable under the Leases or otherwise arising from the Real Property (collectively, the “Income” ); all contract rights, accounts, investment property and general intangibles relating to the Real Property or the use, occupancy, maintenance, construction, repair or operation thereof; all management agreements, franchise agreements, utility agreements and deposits, all maps, plans, surveys and specifications; all warranties and guaranties; all permits, licenses and approvals; all insurance policies. All estates, rights, tenements, hereditaments, privileges, easements, and appurtenances of any kind benefitting the Real Property; all means of access to and from the Real Property, whether public or private; all water and mineral rights; all rights of the Mortgagor as grantor, declarant or unit owner under any condominium master deed, declaration or by-laws or in any association applicable to the Real Property; and
Proceeds. All “Proceeds” of any of the above-described property, which term shall have the meaning given to it in the Uniform Commercial Code and shall additionally include whatever is received upon the use, lease, sale, exchange, collection, or other utilization or any disposition of any of the foregoing property, voluntary or involuntary, whether cash or non-cash, including proceeds of insurance and condemnation awards, rental or lease payments, accounts, chattel paper, instruments, documents, contract rights, general intangibles, equipment and inventory.
Extent and Priority of Lien of Mortgage .
Purchase Money Mortgage. If all or any part of the Obligations secured by this Mortgage were used in whole or in part to fund the acquisition of all or any part of the Mortgaged Property, this Mortgage shall constitute a purchase money mortgage and shall be entitled to all benefits as such under applicable laws of the state in which the Mortgaged Property is located.
Open-End Mortgage. This Mortgage secures all existing and future advances and readvances under the Loan Documents all of which shall be entitled to the lien priority and benefits of an Open-End Mortgage under 42 Pa. C.S.A. §8143, as it may be amended from time to time, (the “Open-End Mortgage Statute” ). Without limiting anything contained in any provision of this Mortgage, this Mortgage secures the Mortgagor’s obligation to repay all advances and readvances of principal under the Obligations made at closing or thereafter and all interest, late charges, fees, and other amounts due under the Obligations or this Mortgage, and in addition thereto: (i) all advances by the Bank to the Mortgagor or any other person to pay costs of erection, construction, alteration, repair, restoration, and completion of any part of any improvements situated on the Mortgaged Property; (ii) any and all advances made or costs incurred by the Bank for the payment of taxes, assessments, maintenance charges, insurance premiums, and similar charges with respect to the Mortgaged Property; (iii) any and all costs incurred for the protection of all or any part of the Mortgaged Property or the lien of this Mortgage; and (iv) any and all legal fees, costs, and other expenses incurred by the Bank by reason of any default or otherwise in connection with the Obligations.
Industrial Plant Mortgage. This Mortgage is intended to be an industrial plant mortgage within the broadest interpretation of the “industrial plant mortgage doctrine” under the laws of the Commonwealth of Pennsylvania.
Changes in Mortgage. The Mortgagor and the Bank may agree to change the interest rate or the maturity date applicable to the Obligations, release collateral for the Obligations or otherwise alter any other term of the Loan Documents; none of such changes shall affect the priority of the lien on this Mortgage.
Defeasance. This Mortgage shall terminate upon indefeasible payment and performance in full of the Obligations. Thereupon, the Bank shall release the Mortgaged Property and shall execute at the request of the Mortgagor a release of this Mortgage and any other instrument to that effect deemed necessary or desirable.
Assignment of Leases . The Mortgagor hereby assigns and pledges to the Bank, as further security for the payment of the Obligations, all existing and future Leases and Income. The Mortgagor shall, upon demand, deliver to the Bank the original or an executed copy of each such Lease. The Mortgagor grants to the Bank the right to (i) enter the Mortgaged Property and collect the Income with or without taking possession of the Mortgaged Property; (ii) with or without legal process, dispossess by usual summary proceeding any tenant defaulting in the performance of its obligations under its lease; (iii) let the Mortgaged Property or any part thereof; and (iv) apply the Income to the payment of any charges and expenses of the Mortgaged Property or to the repayment of the Obligations in such order and amounts as the Bank shall determine in its sole discretion. This assignment shall continue in effect until this Mortgage is paid in full and discharged of record; however, so long as there shall exist no Event of Default (hereinafter defined), the Mortgagor shall have a license to collect the Income as it becomes due, but not prior to accrual. Without the prior written consent of the Bank, the Mortgagor shall not enter into, or amend, modify or terminate, any Lease of the Mortgaged Property. If the Mortgagor requests the Bank’s consent pursuant hereto, but if the Bank does not respond to such request within ten (10) business days of receipt by the Bank of the request, the Bank’s consent shall be deemed to have been given. The Mortgagor shall not collect any of the rent from the Mortgaged Property in advance of the time when the same shall become due under any lease or tenancy arrangement or, in any event, more than one (1) month in advance. The provisions of this Paragraph are for the sole benefit of the Bank and are not for the benefit of any other person or entity.
Security Agreement . This Mortgage constitutes a security agreement under the Uniform Commercial Code and shall be deemed to constitute a financing statement. The Mortgagor hereby grants to the Bank a security interest in all equipment and fixtures and other personal property included in the Mortgaged Property, whether now owned or hereafter acquired, and all replacements of, substitutions for, and additions to, such property, and the Proceeds thereof. The Mortgagor shall, at the Mortgagor’s own expense, execute, deliver, and file any financing or continuation statements or other security agreements the Bank may require from time to time, to perfect, confirm, and maintain the lien of this Mortgage with
respect to such property. Without limiting the foregoing, the Mortgagor hereby irrevocably appoints the Bank (and any of its attorneys, officers, employees or agents) as the Mortgagor’s true and lawful attorney-in-fact, said appointment being coupled with an interest, with full power of substitution in the name of the Mortgagor, the Bank or otherwise, for the sole use and benefit of the Bank in its sole discretion but at the Mortgagor’s expense, to exercise to the extent permitted by law, in its name or in the name of the Mortgagor or otherwise, the powers set forth herein, whether or not any of the Obligations are due (i) to execute, deliver or file financing statements and other agreements for or on behalf of the Mortgagor; (ii) to notify lessees under any Lease of the Bank’s interest therein and require such lessees to pay all sums due thereunder to the Bank; and (iii) to correspond and negotiate directly with insurance carriers.
Representations and Covenants .
Payment and Performance. The Mortgagor shall pay and perform promptly as and when due (i) the Obligations in accordance with their stated terms and conditions; (ii) all obligations and liabilities under any Permitted Encumbrances (hereinafter defined); and (iii) all of its obligations as landlord under the Leases.
Warranty of Title. The Mortgagor warrants to the Bank that the Mortgagor has good and marketable fee simple absolute title to the Mortgaged Property subject only to those exceptions to title which are more particularly described in the title report issued to the Bank and which exceptions are accepted by the Bank in connection with this transaction (the “Permitted Encumbrances” ). The Mortgagor hereby covenants that the Mortgagor shall (i) preserve such title and the validity and priority of the lien of this Mortgage and shall forever warrant and defend the same to the Bank against all lawful claims whatsoever excepting only those claiming under Permitted Encumbrances; and (ii) execute, acknowledge, and deliver all such further documents or assurances, cause to be done all such further acts as may at any time hereafter be required by the Bank to protect fully the lien of this Mortgage and pay all costs related thereto.
Insurance. The Mortgagor hereby covenants to obtain and maintain at all times, throughout the term of this Mortgage, insurance covering the Mortgaged Property, in such amounts, on such forms and written by such companies, as the Bank may require from time to time, including (i) comprehensive general public liability insurance; (ii) an “All-Risk” policy covering damage due to fire and extended hazard insurance (together with vandalism and malicious mischief endorsements); (iii) if the Mortgaged Property is required or eligible to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, flood insurance; and (iv) business interruption or rental loss coverage. Each insurance policy required under this Paragraph shall be written or endorsed so as to (i) contain a standard mortgagee or lender’s loss payable endorsement, as the case may be, or its equivalent; (ii) make all losses and all returns of unearned premiums payable directly to the Bank, without contribution; (iii) with respect to public liability coverage, name the Bank as an additional insured, as its interest may appear; and (iv) waive all rights of set off, counterclaim, deduction, or subrogation against the Mortgagor (so as not to interfere with the Bank’s rights). Each insurance policy required under this Paragraph shall contain a provision to the effect that such policy shall not be canceled, altered, in any way limited in coverage, or reduced in amount unless the Bank is notified in writing at least thirty (30) days prior to such change. At least thirty (30) days prior to the expiration of any such policy, the Mortgagor shall furnish evidence satisfactory to the Bank that such policy has been renewed, replaced, or is no longer required by this Paragraph, together with proof of payment of any premiums then owing. At the request of the Bank, the Mortgagor shall deliver all original insurance policies to the Bank. The Mortgagor shall not take out any separate or additional insurance with respect to the Mortgaged Property which is contributing in the event of loss, unless it is properly compatible with all of the requirements of this Paragraph.
Taxes and Other Charges. The Mortgagor shall prepare and timely file all federal, state, and local tax returns required to be filed by the Mortgagor and promptly pay and discharge all taxes, assessments, water and sewer rents, and other governmental charges or claims of any kind imposed upon the Mortgagor, the Mortgaged Property, or on any of the Mortgagor’s other property before the same shall become in default or become a lien upon such property except for those taxes, assessments, and other governmental charges then being contested in good faith by the Mortgagor by appropriate proceedings and for which the Mortgagor has maintained adequate reserves in the sole judgment of the Bank. The Mortgagor shall submit to the Bank, upon request, an affidavit signed by the Mortgagor certifying that all federal, state, and local tax returns have been filed to date and all real property taxes, assessments, and other governmental charges with respect to the Mortgagor’s properties have been paid to date.
Escrows. The Mortgagor shall, if requested by the Bank, pay to the Bank at the time of each installment of principal and interest due under any of the Loan Documents, one twelfth (1/12) of the annual taxes and assessments levied or assessed against the Mortgaged Property and any premium for applicable insurance, as estimated by the Bank, from time to time, unless the Mortgagor demonstrates to the Bank that it is paying such taxes, assessment or insurance to a holder of a prior Permitted Encumbrance. Such payment shall be held by the Bank to be used by the Bank in payment of such taxes, assessments or insurance premium. If such escrow funds are not sufficient to pay such taxes and assessments, as the same become payable, the Mortgagor shall pay to the Bank, upon request, such additional amounts as the Bank shall estimate to be sufficient to make up any such deficiency. No amount paid to the Bank hereunder shall be deemed to be trust funds but may be commingled with general funds of the Bank, and no interest shall be payable thereon. If the Mortgagor is not required to pay such tax escrows pursuant to this section, the Mortgagor shall provide to the Bank, not later than the last date such payment is due and payable without interest or penalty, official receipted tax bills, canceled checks, or other evidence satisfactory to the Bank evidencing that such taxes and assessments have been paid in a timely manner.
Transfer of Title. Without the prior written consent of the Bank in each instance, which consent may be given or withheld in the Bank’s sole discretion, the Mortgagor shall not voluntarily or involuntarily cause or permit, any transfer of the Mortgaged Property or any portion thereof, whether voluntary, involuntary, by operation of law, or otherwise, nor shall the Mortgagor enter into any agreement or transaction to transfer, or accomplish in form or substance a transfer, of the Mortgaged Property. A “transfer” of the Mortgaged Property includes (i) the direct or indirect sale, transfer or conveyance of the Mortgaged Property or any portion thereof or interest therein; (ii) the execution of an installment sale contract or similar instrument affecting all or a portion of the Mortgaged Property; (iii) the transfer (whether in one transaction or a series of transactions) of stock, partnership or other ownership interests constituting a controlling interest in the Mortgagor (if the Mortgagor is a partnership, joint venture, limited liability company or corporation); and (iv) a lease or leases which, separately or in the aggregate, cover cumulatively more than twenty percent (20%) of the usable space on the Mortgaged Property.
No Liens; Removal of Fixtures. At no time during the term of this Mortgage shall the Mortgagor create or suffer to exist any mortgage, lien, security interest, encumbrance, attachment, levy, distraint, or other judicial process or burden of any kind on the Mortgaged Property or any part thereof, whether superior or inferior to the lien of this Mortgage, without the prior written consent of the Bank, which consent may be given or withheld in the Bank’s sole discretion. The Mortgagor shall not remove or suffer to be removed from the Mortgaged Property any fixtures presently or in the future located on the Mortgaged Property (unless such fixtures have been replaced with similar fixtures of equal or greater utility and value).
Maintenance and Repair; Compliance with Laws. The Mortgaged Property shall, at the Mortgagor’s own cost and expense, be kept and maintained in good repair, working order, and condition, and in compliance with all applicable laws, ordinances, codes, rules and regulations (collectively, “Legal Requirements” ) of any federal, state or local governmental entity or authority having jurisdiction (collectively “Governmental Authorities” ). The Mortgagor agrees to comply, and to cause its tenants to comply with all Legal Requirements made or promulgated by any Governmental Authority now or hereafter applicable to the Mortgaged Property. The Mortgagor shall from time to time make, or cause to be made, all necessary and proper repairs and replacements required under Legal Requirements, the Leases, or otherwise required to keep the Mortgaged Property in good condition and the Mortgagor shall abstain from and shall not permit the commission of waste on or about the Mortgaged Property. The Mortgagor shall not remove, demolish, materially alter, or discontinue the use of the Mortgaged Property, or permit the Mortgaged Property to become vacant, deserted, or unguarded. The Bank shall have the right, but not the obligation, to enter upon and inspect the Mortgaged Property at any reasonable hour.
Damage, Destruction and Condemnation. If all or any part of the Mortgaged Property shall be partially or totally damaged or destroyed, or if title to or the use of the whole or any part of the Mortgaged Property shall be taken or condemned by a competent authority for any public use or purpose, then (i) there shall be no abatement or reduction in the amounts payable by the Mortgagor under the Loan Documents, and the Mortgagor shall continue to be obligated to make such payments; (ii) the Mortgagor shall immediately give notice thereof to the Bank in accordance with the terms of this Mortgage; (iii) the Mortgagor hereby authorizes and directs any affected insurance company or condemning authority to make payment of such proceeds directly to the Bank as its interest appears; and (iv) the Mortgagor hereby authorizes and empowers the Bank to settle, adjust or compromise, any claims for loss, damage, destruction to or condemnation of the Mortgaged Property. The Mortgagor shall pay all costs of collection of insurance proceeds payable on account of such damage or destruction. The Mortgagor shall, at its sole cost and expense, diligently prosecute any condemnation proceeding and shall consult with the Bank, its attorneys, and experts and cooperate with it in the defense of any such proceedings. The Bank shall have the right, in any condemnation proceedings, to do or refrain from doing whatever it deems necessary or convenient. The Mortgagor shall have no claim against the insurance proceeds or condemnation proceeds, or be entitled to any portion thereof, and all rights to insurance or condemnation proceeds are hereby assigned to the Bank to the extent of the Obligations as remain unpaid. The Bank shall have the option, in its sole discretion, of paying or applying all or any part of the insurance proceeds or condemnation proceeds payable to the Bank hereunder to (i) reduction of the Obligations; (ii) restoration, replacement and rebuilding of the Mortgaged Property or (iii) payment to the Mortgagor.
Required Notices. The Mortgagor shall immediately notify the Bank of (i) the receipt of notice from any Governmental Authority relating to the Mortgaged Property or alleging a violation of Legal Requirements; (ii) a substantial change in the occupancy or use of all or any part of the Mortgaged Property; (iii) the receipt of any notice fro