EXHIBIT 10.13
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[LOGO] M&T Real Estate, Inc. MORTGAGE
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This Mortgage is made as of the 29th day of September, 1997, between
County of Monroe Industrial Development Agency, a public benefit corporation
organized and existing under the laws of the State of New York, having its
principal office at 0 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Agency")
and CVC Products, Inc., a Delaware corporation authorized to do business in the
State of New York, having an office at 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
("Borrower") (the Agency and the Borrower are herein collectively described as
the "Mortgagor") (individually and collectively "Mortgagor") and M&T REAL
ESTATE, INC., a New York corporation having its chief executive office at Xxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 000X0-2399, Attention: Office of General
Counsel (the "Mortgagee").
WITNESSETH, to secure (a) the payment of an indebtedness in the
principal sum of Two Million and 00/100 Dollars ($2,000,000.00), lawful money
of the United States, together with interest thereon and other charges with
respect thereto, to be paid according to a certain bond, note or other
obligation dated on or about September 29, 1997, (i) made and delivered by each
Mortgagor to the Mortgagee or (ii) made and delivered by CVC Products, Inc.
XXXXXXXXXXX ("Debtor") to the Mortgagee (the "Note") and (b) if the Note is
guaranteed by each Mortgagor, to the extent of such principal sum and such
interest and other charges, such guaranty (the "Guaranty"), each Mortgagor
hereby mortgages to the Mortgagee, as continuing and collateral security for the
payment of any and all indebtedness, liabilities and obligations now existing or
which may hereafter arise by reason of the Note, the Guaranty, this Mortgage or
any amendments, renewals, extensions, modifications or substitutions of the
Note, the Guaranty or this Mortgage (collectively the "Indebtedness"), the
premises described on the attached Schedule A.
TOGETHER with all buildings, structures and other improvements now
or hereafter erected, constructed or situated upon said premises, and all
fixtures and equipment and other personal property now or hereafter affixed to,
or used in connection with, said premises and any and all replacements thereof
and additions thereto, all of which shall be deemed to be and remain and form a
part of said premises and are covered by the lien of this Mortgage (said
premises, buildings, structures, other improvements, fixtures and equipment and
other personal property being collectively referred to in this Mortgage as the
"Premises"),
TOGETHER with all strips and gores of land adjoining or abutting the
Premises,
TOGETHER with all right, title and interest of each Mortgagor in and
to all streets, alleys, highways, waterways and public places open or proposed
in front of, running through or adjoining the Premises, and all easements and
rights of way, public and private, now or hereafter used in connection with the
Premises,
TOGETHER with all tenements, hereditaments and appurtenances and all
the estate and rights of each Mortgagor in and to the Premises,
TOGETHER with all awards heretofore or hereafter made by any
federal, state, county, municipal or other governmental authority, or by
whomever made in any condemnation or eminent domain proceedings whatsoever, to
the present or subsequent owners of the Premises or any potion thereof, for the
acquisition for public purposes of the Premises or any portion thereof or any
interest therein or any use thereof, or for consequential damages on account
thereof, including, but not limited to, any award for any change of grade of
streets affecting the Premises or any portion thereof and any award for any
damage to the Premises or any portion thereof or any interest therein or any use
thereof.
EACH MORTGAGOR COVENANTS WITH THE MORTGAGEE SO LONG AS THIS MORTGAGE
IS IN EFFECT AS FOLLOWS:
1. PAY INDEBTEDNESS. The Indebtedness shall be paid as provided in
the Note or Guaranty, as the case maybe, and as provided herein.
2. INSURANCE. Each Mortgagor shall keep the Premises insured against
each risk to which the Premises may from time to time be subject (including, but
not limited to, fire, vandalism and other risks covered by all risk insurance;
if requested by the Mortgagee, earthquake; if the Premises or any portion
thereof are located in an area identified as an area having special flood
hazards and in which flood insurance has been made available, flood; and loss of
rents by reason of such risks) for the benefit of the Mortgagee. Such insurance
shall be provided in such amounts, for such periods, in such form, with such
special endorsements, on such terms and by such companies and against such risks
as shall be satisfactory to the Mortgagee. Without limiting the generality of
the preceding two sentences, each policy pursuant to which such insurance is
provided shall contain a mortgagee clause, in form and substance satisfactory to
the Mortgagee, (a) naming the Mortgagee as mortgagee and (b) providing that
(i) all moneys payable pursuant to such insurance shall be payable to the
Mortgagee, (ii) such insurance shall not be affected by any act or neglect of
any Mortgagor or the Mortgagee, any occupancy, operation or use of the Premises
or any portion thereof for purposes more hazardous than permitted by the terms
of such policy, any foreclosure or other proceeding or notice of sale relating
to the Premises or any portion thereof or any change in the title to or
ownership of the Premises or any portion thereof and (iii) such policy and such
mortgagee clause may not be cancelled or amended except upon thirty (30) days'
prior written notice to the Mortgagee. Each Mortgagor hereby assigns and shall
deliver each policy pursuant to which any such insurance is provided to the
Mortgagee. The acceptance by the Mortgagee of such policies from any Mortgagor
shall not be deemed or construed as an approval by the Mortgagee of the form,
sufficiency or amount of such insurance. The Mortgagee does not in any way
represent that such insurance, whether in scope or coverage or limits of
coverage, is adequate or sufficient to protect the business or interest of any
Mortgagor. In the event of the foreclosure of this Mortgage, or a transfer of
title to the Premises in extinguishment of the Indebtedness, all right, title
and interest of each Mortgagor in and to any such policies then in force shall
pass to the purchaser or grantee of the Premises. All the provisions of this
Section 2 and any other provisions of this Mortgage pertaining to insurance
which may be required under this Mortgage shall be construed with Section 254,
Subdivision 4 of the New York Real Property Law, but, said Section 254 to the
contrary notwithstanding, each Mortgagor consents that the Mortgagee may,
without qualification or limitation by virtue of said Section 254, retain and
apply the proceeds of any such insurance in satisfaction or reduction of the
Indebtedness, whether or not then due and payable, or it may pay the same,
wholly or in part, to any Mortgagor for the repair or replacement of the
Premises or for any other purpose satisfactory to the Mortgagee, without
affecting the lien of this Mortgage for the full amount of the Indebtedness
before the making of such payment.
3. ALTERATIONS, DEMOLITION OR REMOVAL. No building, structure, other
improvement, fixture or equipment or other personal property constituting any
portion of the Premises shall be removed, demolished or substantially altered
without the prior written consent of the Mortgagee.
4. WASTE AND CHANGE IN USE. No Mortgagor shall commit any waste on
the Premises or make any change in the use of the Premises which may in any way
increase any ordinary fire, environmental or other risk arising out of
construction or operation.
5. MAINTENANCE AND REPAIRS. Each Mortgagor shall keep and maintain
all buildings, structures, other improvements, fixtures and equipment and other
personal property constituting any portion of the Premises and the sidewalks and
curbs abutting the Premises in good order and rentable and tenantable condition
and state of repair. In the event that the Premises or any portion thereof shall
be damaged or destroyed by fire or any other casualty, or in the event of the
condemnation or taking of any portion of the Premises as a result of any
exercise of the power of eminent domain, each Mortgagor shall promptly restore,
replace, rebuild or alter the same as nearly as possible to the condition
immediately prior to such fire, other casualty, condemnation or taking without
regard to the adequacy of any proceeds of any insurance or award received. Each
Mortgagor shall give prompt written notice to the Mortgagee of any such damage
or destruction or of the commencement of any condemnation or eminent domain
proceeding affecting the Premises or any portion thereof.
6. EXISTENCE AND AUTHORITY. If Mortgagor is a corporation,
partnership or a limited liability company (i) so long as this Mortgage remains
in effect, Mortgagor will do all things necessary to preserve and keep in full
force and effect the existence, franchises, rights and privileges of Mortgagor
as a business or stock corporation, a partnership (limited or general) or as a
limited liability company, under the laws of the state of its organization and
(ii) if a corporation, warrants that neither its certificate of incorporation,
nor any amendment thereto, nor its by-laws, requires the consent of shareholders
to the execution and delivery of this Mortgage, and that the execution and
delivery of this Mortgage have been duly authorized by its Board of Directors;
(iii) if a limited liability company, warrants that the execution and delivery
of this Mortgage has been duly authorized by the members of the limited
liability company and no other action is required under its articles of
organization or the operating agreement and (iv) if a partnership, warrants that
the execution and delivery of this Mortgage has been duly authorized by its
partners and no other action is required under its partnership agreement.
Mortgagor shall take all necessary steps to preserve its corporate, partnership
or limited liability company existence (as the case maybe) and its right to
conduct business in all states in which the nature of its business or ownership
of its property requires such qualification. Mortgagor shall engage only in the
business conducted by it on the date of this Agreement.
Tax Account No.: 104.34-1-1.001
Tax Mailing Address: 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000
7. TAXES AND ASSESSMENTS. Unless paid from an escrow established
pursuant to Section 8 of this Mortgage, each Mortgagor shall pay all taxes,
general and special assessments and other governmental impositions with respect
to the Premises before the end of any applicable grace period. Upon request by
the Mortgagee, each Mortgagor shall promptly deliver to the Mortgagee receipted
bills showing payment of all such taxes, assessments and impositions within the
applicable grace period.
8. ESCROW FOR TAXES, ASSESSMENTS AND INSURANCE. Upon request by the
Mortgagee after any default under the Loan Documents, each Mortgagor shall pay
(a) monthly to the Mortgagee on or before the first day of each and every
calendar month, until the Indebtedness is fully paid, a sum equal to one-twelfth
(1/12th) of the yearly taxes, general and special assessments, other
governmental impositions and other liens and charges with respect to the
Premises to be imposed for the ensuing year, as estimated by the Mortgagee in
good faith, and annual premiums for insurance on the Premises and (b) an initial
payment such that, when such monthly payments are added thereto, the total of
such payments will be sufficient to pay such taxes, assessments, impositions and
other liens and charges and such insurance premiums on or before the date when
they become due. So long as no Event of Default (as hereinafter defined) shall
have occurred or exists, the Mortgagee shall hold such payments in trust in an
account maintained with Manufacturers and Traders Trust Company without
obligation to pay interest thereon, except such interest as may be mandatory by
any applicable statute, regulation or other law, to pay, to the extent funds are
available, such taxes, assessments, impositions and other liens and charges and
such insurance premiums within a reasonable time after they become due;
provided, however, that upon the occurrence or existence of any Event of
Default, the Mortgagee may apply the balance of any such payments held to the
Indebtedness. If the total of such payments made by any Mortgagor shall exceed
the amount of such payments made by the Mortgagee, such excess shall be held or
credited by the Mortgagee for the benefit of each Mortgagor. If the total of
such payments made by any Mortgagor shall be less than the amount of such taxes,
assessments, impositions and other liens and charges and such insurance
premiums, then each Mortgagor shall pay to the Mortgagee any amount necessary to
make up the deficiency on or before the date when any such amount shall be due.
9. LEASES. Pursuant to the provisions of Section 291-f of the New
York Real Property Law, no Mortgagor shall (a) amend, cancel, abridge,
terminate, or otherwise modify any lease of the Premises or of any portion
thereof or (b) accept any prepayment of installments of rent to become due
thereunder for more than one month in advance, without the prior written consent
of the Mortgagee or its agents. No Mortgagor shall make any new lease in place
of or any lease renewal or extension of any lease of the Premises or any portion
thereof (other than those such Mortgagor as landlord may be required to grant by
the terms of an existing lease) without the prior written consent of the
Mortgagee or its agents. Upon request by the Mortgagee or its agents, each
Mortgagor shall promptly furnish to the Mortgagee a written statement containing
the names and mailing addresses of all lessees of the Premises or of any portion
thereof, the terms of their respective leases, the space occupied and the
rentals payable thereunder and copies of their respective leases and shall
cooperate in effecting delivery of notice of this covenant to each affected
lessee.
10. ASSIGNMENT OF LEASES AND RENTS. Each Mortgagor hereby assigns to
the Mortgagee all existing and future leases of the Premises or any portion
thereof (including, but not limited to, any amendments, renewals, extensions or
modifications thereof) and the rents, issues and profits of the Premises
including without limitation accounts receivable for use of the Premises for
hotel or lodging services ("Accounts"), as further security for the payment of
the Indebtedness, and each Mortgagor grants to the Mortgagee the right to enter
upon and to take possession of the Premises for the purpose of collecting the
same and to let the Premises or any portion thereof, and, after payment of each
cost and expense (including, but not limited to, each fee and disbursement of
counsel to the Mortgagee) incurred by the Mortgagee in such entry and
collection, to apply the remainder of the same to the Indebtedness, without
affecting its right to maintain any action theretofore instituted, or to bring
any action thereafter, to enforce the payment of the Indebtedness. In the event
the Mortgagee exercises such rights, it shall not thereby be deemed a mortgagee
in possession, and it shall not in any way be made liable for any act or
omission. This assignment and grant shall continue in effect until the
Indebtedness is fully paid. No Mortgagor shall assign such leases, rents, issues
or profits or any interest therein or grant any similar rights to any other
person without the Mortgagee's prior written consent. The Mortgagee hereby
waives the right to enter upon and to take possession of the Premises for the
purpose of collecting said rents, issues and profits, and each Mortgagor shall
be entitled to collect the same, until the occurrence or existence of any Event
of Default, but such right of each Mortgagor may be revoked by the Mortgagee
upon the occurrence or existence of any Event of Default. Upon the occurrence or
existence of any Event of Default, each Mortgagor shall pay monthly in advance
to the Mortgagee, or to any receiver appointed to collect said rents, issues and
profits, a fair and reasonable monthly rental value for the use and occupation
of the Premises, and upon default in any such payment shall vacate and surrender
the possession of the Premises to the Mortgagee or to such receiver, and in
default thereof may be evicted by summary proceedings pursuant to Article 7 of
the New York Real Property Actions and Proceedings Law. The rights and remedies
under this section and any separately recorded assignment of rents and/or leases
in favor of Mortgagee shall be cumulative. In the event of any irreconcilable
inconsistencies between such agreements and this section, the separately
recorded assignment of rents and/or leases shall control.
11. SECURITY AGREEMENT. This Mortgage constitutes a security
agreement under the New York Uniform Commercial Code and each Mortgagor hereby
grants to the Mortgagee a security interest in all fixtures, equipment and other
personal property now or hereafter owned and affixed to, used in connection with
any portion of or constituting any portion of the Premises and in the proceeds,
rents, issues, profits and Accounts arising therefrom, to secure the
Indebtedness. The Mortgagee shall have the right to file in any public office,
without the signature of any Mortgagor, each financing statement relating to
such fixtures and equipment and other personal property and proceeds, rents,
issues, profits and Accounts arising therefrom that the Mortgagee shall deem
necessary or desirable at the sole option of the Mortgagee. With respect to such
fixtures and equipment and other personal property and proceeds, the Mortgagee
shall have each applicable right and remedy of a secured party under the New
York Uniform Commercial Code and each applicable right and remedy pursuant to
any other statute, regulation or other law or pursuant to this Mortgage.
12. NO TRANSFER. No Mortgagor shall, without the Mortgagee's prior
written consent, sell, convey or transfer the Premises or any portion thereof or
any interest therein or contract to do so. If any Mortgagor, Debtor or any
endorser or guarantor of the Note (a "Guarantor") is a corporation, or if any
other person liable with respect to the Indebtedness or any portion thereof
other than any Mortgagor or any general partner of any Mortgagor, Debtor or any
Guarantor, is a corporation, any direct or indirect change in the beneficial
ownership or number of issued and outstanding shares of any class of stock of
such Mortgagor, such Debtor, such Guarantor or such general partner, whether by
operation of law or otherwise, after which the percentage of such shares
beneficially owned by any person or group of persons having beneficial ownership
of any such shares has changed by at least ten percent (10%) more or less than
it was on the date of this Mortgage shall be deemed a sale, conveyance or
transfer of the Premises within the meaning of this Section 12. If any
Mortgagor, Debtor or Guarantor is a partnership, including a limited liability
partnership, any change in the partnership interests of the general partners of
such Mortgagor, Debtor or Guarantor or in the composition of the general
partners of such Mortgagor, Debtor or Guarantor, whether by operation of law or
otherwise, shall be deemed a sale, conveyance or transfer of the Premises within
the meaning of this Section 12. If any Mortgagor, Debtor or Guarantor is a
limited liability company, any change in the direct or indirect membership
interest of any member or class of members of such Mortgagor, Debtor or
Guarantor, whether by operation of law or otherwise, after which the percentage
of such membership interest owned by any such member or class has changed by at
least ten percent (10%) more or less than it was on the date of this Mortgage
shall be deemed a sale, conveyance or transfer of the Premises within the
meaning of this Section 12.
13. NO SECONDARY FINANCING OR OTHER LIENS. No Mortgagor shall,
without the Mortgagee's prior written consent, mortgage, pledge, assign, grant a
security interest in or cause any other lien or encumbrance to be made or permit
any other lien or encumbrance to exist upon the Premises or any portion thereof
except for (a) taxes and assessments not yet delinquent and (b) any mortgage,
pledge, security interest, assignment or other lien or encumbrance to the
Mortgagee.
14. COMPLIANCE WITH LAWS. Each Mortgagor represents and warrants to
the Mortgagee, and continues to represent and warrant as long as this Mortgage
is in effect, as follows: (a) the buildings, structures and other improvements
now constituting any portion of the Premises are in full compliance with all
applicable statutes, regulations and other laws (including, without limitation,
all applicable zoning, building, fire and health codes and ordinances and the
Americans With Disabilities Act of 1990) and all applicable deed restrictions,
if any and is not and shall not be used for any illegal purpose; (b) such
compliance is based solely upon each Mortgagor's ownership of the Premises and
not upon title to or interest in any other property. Each Mortgagor shall comply
with or cause compliance with all statutes, regulations and other laws
(including, without limitation, all applicable zoning, building, fire and health
codes and ordinances and the Americans With Disabilities Acts of 1990), all
other requirements of all governmental authorities whatsoever having
jurisdiction over or with respect to the Premises or any portion thereof or the
use or occupation thereof and with all applicable deed restrictions, if any;
provided, however, that any Mortgagor may postpone such compliance if and so
long as the validity or legality of any such requirement or restriction shall be
contested by such Mortgagor, with diligence and in good faith, by appropriate
legal proceedings and the Mortgagee is satisfied that such non-compliance will
not impair or adversely affect the value of its security.
15. WARRANTY OF TITLE; TITLE INSURANCE. Each Mortgagor represents
and warrants to the Mortgagee, and continues to represent and warrant as long as
this Mortgage is in effect, good and marketable title in fee simple absolute to
the Premises. Upon request by the Mortgagee, each Mortgagor shall furnish to the
Mortgagee at such Mortgagor's own cost and expense a title insurance policy in
the then amount of the Indebtedness, (a) naming the Mortgagee as mortgagee, (b)
covering the lien on the Premises granted pursuant to this Mortgage, (c)
containing no exception not approved by the Mortgagee, (d) issued by a title
insurance company qualified to do business in the State of New York and
satisfactory to the Mortgagee and (e) otherwise in form and substance
satisfactory to the Mortgagee.
16. CERTAIN RIGHTS AND OBLIGATIONS.
(a) Mortgagee or its agents may take such action as Mortgagee
or its agents deem appropriate to protect the Premises or the status or priority
of the lien of this Mortgage, including, but not limited to: entry upon the
Premises to protect the Premises from deterioration or damage, or to cause the
Premises to be put in compliance with any governmental, insurance rating or
contract requirements; payment of amounts due on liens having priority over this
Mortgage; payment of any tax or charge for purposes of assuring the priority or
enforceability of this Mortgage; obtaining insurance on the Premises; or
commencement or defense of any legal action or proceeding to asset or protect
the validity or priority of the lien of this Mortgage. On demand, Mortgagor
shall reimburse Mortgagee or its agents for all expenses in taking any such
action, with interest, and the amount thereof shall be secured by this Mortgage
and shall, to the extent permitted by law, be in addition top the maximum amount
of the indebtedness evidenced by the Note.
(b) Xxxxxxxxx authorizes Mortgagee, without notice, demand
or any reservation of rights and without affecting this Mortgage, from time
to time: (i) to renew, extend, increase, accelerate or otherwise change the
time for payment of, the terms of or the interest on the Indebtedness
2
or any part thereof; (ii) to accept from any person or entity and hold
additional collateral for the payment of the Indebtedness or any part thereof,
and to exchange, enforce or refrain from enforcing, or release such collateral
or any part thereof; (iii) to accept and hold any indorsement or guaranty of
payment of the Indebtedness or any part thereof, and to release or substitute
any such obligation of any such indorser or guarantor or any person or entity
who has given any collateral as security for the payment of the Indebtedness or
any part thereof, or any other person or entity in any way obligated to pay the
Indebtedness or any part thereof, and to enforce or refrain from enforcing, or
compromise or modify, the terms of any obligation of any such indorser,
guarantor, person or entity; (iv) to direct the order or manner of the
disposition of any and all collateral and the enforcement of any and all
Indorsements and guaranties relating to the Indebtedness or any part thereof as
Mortgagee, in its sole discretion, may determine; and (v) to determine the
manner, amount and time of application of payments and credits, if any, to be
made on all or any part of any component or components of the Indebtedness
(whether principal, interest, costs and expenses, or otherwise).
(c) If any default shall be made in the payment of any
Indebtedness, this Mortgage shall remain valid, binding and enforceable: (i)
without deduction by reason of any setoff, defense or counterclaim of Mortgagor,
Guarantor or Debtor; (ii) without requiring protest or notice of nonpayment or
notice of default to Mortgagor, to Guarantor, to Debtor, or to any other person;
(iii) without demand for payment or proof of such demand; (iv) without requiring
Mortgagee to resort first to Mortgagor or to any other guaranty or any
collateral which Mortgagee may hold; (v) without requiring notice of acceptance
hereof or assent hereto by Mortgagee; and (vi) without requiring notice that any
indebtedness has been incurred or of the reliance by Mortgagee upon this
Mortgage; all of which Mortgagor hereby waives.
(d) The enforceability of this Mortgage shall not be affected
by: (i) any failure to perfect or continue the perfection of any security
interest in or other lien on any collateral securing payment of the
Indebtedness; (ii) the invalidity, unenforceability, or loss or change in
priority of any such security interest or other lien; (iii) any failure to
protect, preserve or insure any such collateral; (iv) any defense arising by
reason of the cessation from any cause whatsoever of liability of Debtor or any
Guarantor; (v) any compromise of any obligation of a Mortgagor, Debtor or any
Guarantor; or (vi) the invalidity or unenforceability of any of the
Indebtedness; all of which Mortgagor hereby waives.
(e) If Mortgagee shall receive from or on behalf of Mortgagor
any sum less than the full amount when due and payable, Mortgagee may, but shall
not be obligated to, accept the same and, if it elects to accept any such
payment, it may without waiving any event of default: (i) apply such payment on
account of the Indebtedness or any amount payable hereunder, or (ii) hold same
or any part thereof, without liability for interest, in a special account and
from time to time apply same or any part thereof as specified in subsection (i)
of this subsection.
17. LIEN LAW COVENANT. Each Mortgagor shall receive the advances
secured by this Mortgage and shall hold the right to receive such advances as a
trust fund in accordance with the provisions of Section 13 of the New York Lien
Law.
18. APPLICATION OF AND INTEREST ON CONDEMNATION AWARD. Each
Mortgagor consents that the Mortgagee may retain and apply the proceeds of any
award by a condemning authority in satisfaction or reduction of the
Indebtedness, whether or not then due and payable, or it may pay the same,
wholly or in part, to any Mortgagor for the restoration or alteration of the
Premises or, for any other purpose satisfactory to the Mortgagee, without
affecting the lien of this Mortgage for the full amount of the Indebtedness
before the making of such payment. In the event of the condemnation or taking by
eminent domain of the Premises or any portion thereof, the Mortgagee shall not
be limited to the interest paid on the award by the condemning authority, but
shall be entitled to receive out of the award interest on the Indebtedness in
accordance with its terms.
19. APPOINTMENT OF RECEIVER. In addition to any other remedy, upon
the occurrence of any Event of Default, the Mortgagee, in any action to
foreclose this Mortgage, shall be entitled, without notice or demand and without
regard to the adequacy of any security for the Indebtedness or the solvency or
insolvency of any person liable for the payment thereof, to the appointment of a
receiver of the rents, issues and profits of the Premises.
20. SALE IN ONE OR MORE PARCELS. In case of a foreclosure sale, the
Premises may be sold in one or more parcels, any provision of any statute,
regulation or other law to the contrary notwithstanding.
21. ESTOPPEL STATEMENT. Upon request by the Mortgagee, each
Mortgagor shall furnish to the Mortgagee within five (5) days if such request is
made in person or within ten (10) days if such request is otherwise made a
written statement duly acknowledged of the amount of the Indebtedness and
whether any offsets or defenses exist against the Indebtedness.
22. RIGHT TO INSPECT AND EXAMINE. Upon request by the Mortgagee or
its agents, each Mortgagor shall immediately permit the Mortgagee and each
officer, employee, accountant, attorney and other agent of the Mortgagee to
enter and inspect the Premises and to examine, audit, copy and extract each
record of any Mortgagor relating to the Premises or any portion thereof.
23. FINANCIAL STATEMENTS. SEE RIDER ATTACHED HERETO.
24. AUTHORIZATION AND POWER OF ATTORNEY. The Mortgagee is
irrevocably and unconditionally authorized to take, and each Mortgagor
irrevocably and unconditionally appoints the Mortgagee as the attorney-in-fact
of such Mortgagor, with full power of substitution and of revocation, to take,
in the name of such Mortgagor or otherwise at the sole option of the Mortgagee,
each action relating to the Premises or any portion thereof that, subject to
this Mortgage, such Mortgagor could take in the same manner, to the same extent
and with the same effect as if such Mortgagor were to take such action;
provided, however, that the Mortgagee shall not have the right, pursuant to such
authorization or as such attorney-in-fact, to sell or otherwise dispose of the
Premises or any portion thereof. Such power of attorney is coupled with an
interest in favor of the Mortgagee, and shall not be terminated or otherwise
affected by the death, disability or incompetence of any Mortgagor.
25. FURTHER ASSURANCES. Promptly upon request by the Mortgagee, each
Mortgagor shall execute and deliver each writing, and take each other action,
that the Mortgagee shall deem necessary or desirable at the sole option of the
Mortgagee (a) to perfect or accomplish any lien or security interest granted, or
assignment made, pursuant to this Mortgage; (b) otherwise to accomplish any
purpose of this Mortgage; (c) in connection with any transaction contemplated by
this Mortgage; or (d) in connection with the Premises or any portion thereof.
26. ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
Each Mortgagor represents and warrants, * and continues to represent and warrant
as long as this Mortgage is in effect, to the Mortgagee that (a) each Mortgagor
and the Premises are in compliance with each statute, regulation or other law
and each judgment, order or award of any court, agency or other governmental
authority or of any arbitrator (individually an "Environmental Requirement")
relating to the protection of any water, water vapor, land surface or
subsurface, air, fish, wildlife, biota or other natural resources or governing
the use, storage, treatment, generation, transportation, processing, handling,
production or disposal of any chemical, natural or synthetic substance, waste,
pollutant or contaminant (collectively "Regulated Materials"), (b) no Mortgagor
has been charged with, or has received any notice that such Mortgagor is under
investigation for, the failure to comply with any Environmental Requirement, nor
has any Mortgagor received any notice that such Mortgagor has or may have any
liability or responsibility under any Environmental Requirement with respect to
the Premises or otherwise, (c) the Premises have never been used for (i) the
storage, treatment, generation, transportation, processing, handling, production
or disposal of Regulated Materials, except as permitted by law, (ii) a landfill
or other waste disposal site or (iii) military purposes, (d) no underground
storage tanks are located on the Premises, (e) the environmental media at the
Premises do not contain Regulated Materials beyond any legally permitted level,
(f) there has never been any release, threatened release, migration or
uncontrolled presence of any Regulated Materials on, at or from the Premises or,
to the knowledge of such Mortgagor, within the immediate vicinity of the
Premises and (g) no Mortgagor has received any notice of any such release,
threatened release, migration or uncontrolled presence. No Mortgagor shall cause
or permit the Premises to be used in any way that would result in any of the
representations and warranties contained in the preceding sentence to the false
or misleading at any future time. To the extent any such representation or
warranty at any time is or becomes false or misleading, each Mortgagor shall
promptly notify the Mortgagee thereof. Each Mortgagor shall, at such Mortgagor's
own cost and expense, conduct and complete all investigations, studies, sampling
and testing with respect to the Premises requested by the Mortgagee. Each
Mortgagor shall promptly furnish to the Mortgagee copies of all such
investigations, studies, samplings and tests. Each Mortgagor shall (a) conduct
and complete all such investigations, studies, samplings and testing, and all
remedial, removal and other actions necessary with respect to the Premises, in
accordance with all applicable Environmental Requirements and promptly furnish
to the Mortgagee copies of all documents generated in connection therewith and
(b) defend, reimburse, indemnify and hold harmless the Mortgagee, its employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs or expenses
* to the best of its knowledge and in reliance upon the Phase I
Environmental Audit conducted in connection with this transaction
of whatever kind or nature, known or unknown, contingent or otherwise, arising
out of, or in any way related to, the violation of, or other liability or
responsibility under, any Environmental Requirements, or the release, threatened
release, migration or uncontrolled presence of any Regulated Materials on, at or
from the Premises including, without limitation, attorney and consultant fees,
investigation and laboratory fees, court costs and litigation expenses. In the
event this Mortgage is foreclosed, or the Mortgagors tender a deed in lieu of
foreclosure which the Mortgagee agrees to accept, each Mortgagor shall be
responsible to deliver the Premises to the Mortgagee free of any and all
Regulated Materials other than any that are (a) normally used in such
Mortgagor's business and (b) located and maintained thereon in compliance with
all applicable Environmental Requirements and in a condition that conforms with
all applicable Environmental Requirements. The provisions of this Section 26
shall be in addition to any and all other obligations and liabilities any
Mortgagor may have to the Mortgagee at common law or any other agreement with
Mortgagee, and shall survive the transactions contemplated in this Mortgage and
the termination of this Mortgage.
27. EVENTS OF DEFAULT.
(a) An event of default ("Event of Default") will have
occurred if: (i) any Mortgagor or Debtor fails to pay when due whether by
acceleration or otherwise the Indebtedness or any portion thereof or there
occurs any event which after notice or lapse of time will permit such
acceleration; (ii) any of any Mortgagor's debts or those of Debtor or any
Guarantor is accelerated or an event occurs which after notice or lapse of time
would permit such acceleration; (iii) any Mortgagor, Debtor or Guarantor
breaches or is in default under this Mortgage (including but not limited to any
default in the payment of any amount any Mortgagor is obligated to pay pursuant
to Sections 2, 6, 8 or 16 of this Mortgage or in the performance of any
obligation of any Mortgagor pursuant to Sections 23 or 26 of this Mortgage) or
under any other agreement with the Mortgagee or Mortgagee's affiliates
including, without limitation, Manufacturers and Traders Trust Company; (iv) any
Mortgagor, Debtor or Guarantor is dissolved, suspends his, her or its present
business, agrees to a merger or other absorption or to transfer or otherwise
dispose of substantially all of his, her or its assets, makes or sends notice of
a bulk sale, dies, becomes incompetent or insolvent (however such insolvency is
evidenced), generally fails to pay his, her or its debts as they become due,
fails to pay, withhold or collect any tax as required by law, has served or
filed against his, her or its assets any lien or has entered against him, her or
it or his, her or its assets any judgment, order or award; (v) a receiver or
similar trustee is appointed for any Mortgagor, Debtor or Guarantor or his, her
or its assets (with or without his, her or its consent), or any Mortgagor,
Debtor or Guarantor makes an assignment for the benefit of creditors or
commences or has commenced against him, her or it a proceeding pursuant to any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
dissolution or liquidation laws calling a meeting of creditors or offering a
composition or extension to creditors; (vi) any representation or warranty made
in this Mortgage or related documents or other statements provided by any
Mortgagor, Debtor, Guarantor or Material Lessee proves to have been incorrect or
misleading in any material respect; (vii) any pension plan of any Mortgagor,
Debtor or Guarantor fails to comply with applicable law or has vested unfunded
liabilities that, in the opinion of the Mortgagee, might have a material adverse
effect on any Mortgagor's, Debtor's or Guarantor's ability to repay his, her or
its debts; (viii) there occurs any change in the management of any Mortgagor,
Debtor or Guarantor which is, in the opinion of the Mortgagee, materially
adverse to its interest and which remains uncorrected for thirty (30) days after
the Mortgagee notifies any Mortgagor of its opinion; (ix) any Mortgagor, Debtor
or Guarantor fails to pay when due whether by acceleration or otherwise any
amount due to any person other than the Mortgagee; or (x) any Mortgagor or
Debtor is convicted of a felony. Automatically upon the occurrence or existence
of any Event of Default, the annual interest rate applicable to the Indebtedness
shall be increased by the greater of (a) the amount needed to equal any default
rate specified in the Note or other instrument evidencing the Indebtedness or
(b) three percent (3%).
(b) Mortgagee, at its sole election, may declare all or any
part of any Indebtedness not payable on demand to be immediately due and payable
without demand or notice of any kind upon the happening of any event of default,
or if Mortgagee in good faith believes that the prospect of payment of all or
any part of the Indebtedness or performance of Xxxxxxxxx's or Debtor's
obligations under this Mortgage or any other agreement now or hereafter in
effect between Mortgagor or Debtor and Mortgagee is impaired. All or any part of
any Indebtedness not payable on demand shall be immediately due and payable,
without demand or notice of any kind, upon the commencement of any Mortgagor's
or Debtor's bankruptcy if voluntary and upon the lapse of thirty (30) days
without dismissal if involuntary. The provisions of this paragraph are not
intended in any way to affect any rights of Mortgagee with respect to any
Indebtedness which may now or hereafter be payable on demand.
(c) Upon the happening of an Event of Default, whether or not
foreclosure proceedings have been instituted, Mortgagor shall, upon demand,
surrender possession of the Premises to Mortgagee. If Xxxxxxxxx remains in
possession of the Premises after the happening of an Event of Default, the
possession shall be as tenant of Mortgagee and Xxxxxxxxx agrees to pay in
advance upon demand to Mortgagee a reasonable monthly rental for the Premises or
portion so occupied. Mortgagee may dispossess, by summary proceedings or
otherwise, any tenant or Mortgagor defaulting in the payment of rent. If a
receiver is appointed, this covenant shall inure to the benefit of such
receiver. Notwithstanding any provision of law to the contrary, Mortgagee may,
at its option, foreclose this Mortgage subject to the rights of tenants of the
Premises which are subordinate to the lien of this Mortgage.
(d) If the indebtedness, as evidenced by a single note or
other written instrument shall exceed the amount secured by this Mortgage, or as
evidenced by a combination of same that singlulary or in part collectively may
be less than said secured amount but combined exceed said secured amount,
Mortgagee, in any foreclosure hereof, shall have the right to sue and collect
the excess in the same action as commenced for the foreclosure hereof, and
recover a money judgment for said excess with all the rights attendant thereto,
including, without limitation, the issuance of an execution to the Sheriff for
collection thereof, and Xxxxxxxxx hereby waives any defense based upon a claim
that in doing so, Mortgagee is splitting its cause of action if it seeks to
foreclose this Mortgage for part of the Indebtedness and recover at law for
another part.
(e) Upon the happening of an Event of Default, Mortgagee or
its agents may pursue, take or refrain from pursuing any remedy for collection
of the Indebtedness, including foreclosure of this Mortgage.
(f) Mortgagee may, either with or without entry or taking
possession of the Premises as provided in this Mortgage or otherwise, personally
or by its agents or attorneys, and without prejudice to the right to bring an
action of foreclosure, sell the Premises or any part thereof pursuant to any
procedures provided by applicable law including, without limitation, the
procedures set forth in Article 14 of the New York Real Property Actions and
Proceedings Law (and any amendments or substitute statutes in regard thereto),
and all estate, right, title interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entity or in parcels, and at such
time and place upon such terms and after such notice thereof as may be required
or permitted by applicable law. Any reference in this Mortgage to an action or
right of the Mortgagee in regard to or in connection with a "foreclosure
proceeding" shall be deemed to include a sale and/or proceeding under this
subsection.
28. EXPENSES. Each Mortgagor shall pay to the Mortgagee or its
agents on demand all costs and expenses (including but not limited to attorneys'
fees and disbursements whether for internal or outside counsel) incurred by the
Mortgagee or its agents in connection with the Indebtedness including without
limitation costs of collection, of preserving or exercising any right or remedy
of the Mortgagee or its agents under this Mortgage or any related security
agreement or guaranty, of workout or bankruptcy proceedings by or against any
Mortgagor, of defending against any claim asserted as a direct or indirect
result of the Indebtedness or of performing any obligation of any Mortgagor
pursuant to this Mortgage or otherwise (including but not limited to payment of
any amount any Mortgagor is obligated to pay pursuant to Sections 2, 6, 8 or 16
of this Mortgage and performance of any obligation of any Mortgagor pursuant to
Section 23 or 26 of this Mortgage). Costs and expenses shall accrue interest at
the highest legal rate from the date of demand until payment is actually
received by the Mortgagee. Each such cost and expense and any interest thereon
shall constitute part of the Indebtedness and be secured by this Mortgage and
may be added to the judgment in any suit brought by the Mortgagee or its agents
against any Mortgagor on this Mortgage.
29. NOTICES. Each notice to, and each demand upon, any Mortgagor by
the Mortgagee relating to his Mortgage may be oral or in writing and, if in
writing, may be served in person or by mail.
30. LITIGATION. Mortgagor shall promptly notify Mortgagee in writing
of any litigation, proceeding, or counterclaim against, or of any investigation
of, Mortgagor if: (i) the outcome of such litigation, proceeding, counterclaim,
or investigation may materially and adversely affect the finances or operations
of Mortgagor or title to, or the value of, any assets secured by the Mortgage or
(ii) such litigation, proceeding, counterclaim, or investigation questions the
validity of the Mortgage, the Note or any document executed in connection
therewith including any guaranties or any action taken, or to be taken, pursuant
to any such documents. Mortgagor shall furnish to Mortgagee such information
regarding any such litigation, proceeding, counterclaim, or investigation as
Mortgagee shall request.
31. NOTICE OF NON-COMPLIANCE. Mortgagor shall notify Mortgagee in
writing of any failure by Xxxxxxxxx to comply with any provision of the Note,
the Mortgagee or any document executed in connection therewith immediately upon
learning of such non-compliance, or if any representation, warranty or covenant
contained in such document is no longer true. Mortgagor shall also immediately
notify Mortgagee in writing if there is any material adverse change in any of
the information or financial statements supplied to Mortgagee or its agents to
induce Mortgagee to extend credit to Mortgagor or if such information or
financial statement is required under this Mortgage or any other document
executed in connection therewith.
32. COVENANTS SHALL RUN WITH THE LAND. The covenants contained in
this Mortgage shall run with the land and bind each Mortgagor; each heir, legal
representative, successor and assign of each Mortgagor and each subsequent
owner, encumbrancer, tenant and subtenant of the Premises or any portion
thereof, and shall inure to the benefit of, and be enforceable by, the Mortgagee
and each successor and assign of the Mortgagee.
33. NONWAIVER BY MORTGAGEE. All rights and remedies of the
Mortgagee under this Mortgage and its other agreements with Mortgagor are
cumulative, and no right or remedy shall be exclusive of any other right or
remedy. No single, partial or delayed exercise by the Mortgagee or its agents
of any right or remedy shall preclude full and timely exercise by the
Mortgagee or its agents at any time of any right or remedy of the Mortgagee
without notice or demand, at the Mortgagee's sole option. No course of
dealing or other conduct, no oral agreement or representation made by the
Mortgagee or its agents or usage of trade shall operate as a waiver of any
right or remedy of the Mortgagee. No waiver of any right or remedy of the
Mortgagee shall be effective unless made specifically in writing by the
Mortgagee.
34. RIGHT OF SETOFF. If an Event of Default occurs, the Mortgagee
and its agents and affiliates stall also have the right to set off against the
Indebtedness any property held in a deposit or other account or otherwise owing
by the Mortgagee or its agents or affiliates including, without limitation,
Manufacture's and Traders Trust Company and M&T Bank, National Association, in
any capacity to any Mortgagor, Debtor or Guarantor in any capacity whether or
not the Indebtedness or the obligation to pay such moneys owed by Mortgagee is
then due, and Mortgagee shall be deemed to have exercised such right of setoff
immediately at the time of such election.
4
35. TERM; SURVIVAL. The term of this Mortgage shall continue until
the Indebtedness has been fully paid to the Mortgagee's satisfaction. Each
Mortgagor's obligation to pay the costs and expenses hereunder shall survive the
term of this Mortgage. Each of each Mortgagor's representations, warranties,
covenants and agreements shall survive during the term of this Mortgage and
shall be presumed to have been relied upon by the Mortgagee. If after receipt of
any payment of all or any part of the indebtedness, Mortgagee is for any reason
compelled to surrender such payment to any person or entity because such payment
is determined to be void or voidable as a preference, impermissible setoff, or a
diversion of trust funds, or for any other reason, this Mortgage shall continue
in full force notwithstanding any contrary action which may have been taken by
Mortgagee in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to Mortgagee's rights under this Mortgage and shall
be deemed to have been conditioned upon such payment having become final and
irrevocable.
36. MISCELLANEOUS. This Mortgage is absolute and unconditional and
it along with the Note, the Guaranty and all collateral documents including
without limitation security agreements and guarantees contains the entire
agreement between the Mortgagee and each Debtor or Mortgagor with respect to the
Indebtedness, and supersedes every course of dealing, other conduct, oral
agreement and representation previously made by the Mortgagee and its agent in
their capacity as agent for Mortgagee. No change in this Mortgage shall be
effective unless made in a writing duly executed by the Mortgagee. This Mortgage
shall be governed by the laws of the State of New York, without regard to its
principles of conflict of laws. This Mortgage is a binding obligation
enforceable against each Mortgagor and his or her heirs and legal
representatives and his, her or its successors and assigns and shall inure to
the benefit of the Mortgagee and its successors and assigns. Any reference
herein to "Mortgagee" shall be deemed to include and apply to every subsequent
holder of this Mortgage and any reference herein to "Mortgagor" "Debtor" or
"Guarantor", as the case may be, shall be deemed to include and apply to every
subsequent owner of the Premises and every person liable upon the Indebtedness,
unless the language or circumstances clearly requires the contrary. Further, the
term "Debtor" "Mortgagor" and "Guarantor" shall include: (i) any successor
individual or individuals, association, partnership, limited liability company
or corporation to which all or substantially all of the business or assets of
Debtor, Mortgagor or Guarantor, as the case may be shall have been transferred;
(ii) in the case of a partnership Debtor, Mortgagor or Guarantor (as the case
may be) any new partnership which shall have been created by reason of the
admission of any new partner or partners therein, or by reason of the
dissolution of the existing partnership by voluntary agreement or the death,
resignation or other withdrawal of any partner; and (iii) in the case of a
corporate or limited liability company Debtor, Mortgagor or Guarantor (as the
case may be) any other entity into or with which Debtor, Mortgagor or Guarantor
(as the case may be) shall have been merged, consolidated, reorganized, or
absorbed. Each provision of this Agreement shall be interpreted as consistent
with existing law and shall be deemed amended to the extent necessary to comply
with any conflicting law. If a court deems any provision invalid, the remainder
of this Mortgage shall remain in effect. Section headings are for convenience
only. It is the intent of each Mortgagor and the Mortgagee that the provisions
of this Mortgage, other than those included in the New York statutory form of
mortgage, shall be construed as affording to the Mortgagee rights additional to,
and not exclusive of, the rights conferred under the provisions contained in
such statutory form. Without limiting the generality of any reference hereunder
to an agent of the Mortgagee, any right or remedy granted to the Mortgagee under
this Mortgage, including, without limitation, the right to be reimbursed for
expenses under Section 28, shall inure to the benefit of and be enforceable by
both the Mortgagee and its agents.
37. CONSENT TO JURISDICTION. In any action or other legal proceeding
relating to the Note, the Guaranty or this Mortgage, each Mortgagor (i) consents
to the personal jurisdiction of any State or federal court located in the State
of New York, (ii) waives objection to the laying of venue, and (iii) waives
personal service of process and subpoenas and consents to service of process and
subpoenas by registered mall directed to such Mortgagor at the last address
shown in the Mortgagee's records relating to this Mortgage, with such service to
be deemed completed five (5) days after mailing, or as otherwise provided by the
laws of the State of New York or the United States.
38. WAIVER OF JURY TRIAL. THE MORTGAGOR AND THE MORTGAGEE HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY EACH WAIVE ANY RIGHT TO TRIAL BY JURY
THEY MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION
WITH THIS MORTGAGE OR THE TRANSACTIONS RELATED THERETO. THE MORTGAGOR REPRESENTS
AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE MORTGAGEE HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE MORTGAGEE WILL NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER. THE MORTGAGOR ACKNOWLEDGES THAT
THE MORTGAGEE HAS BEEN INDUCED TO ACCEPT THIS MORTGAGE BY, AMONG OTHER THINGS,
THE PROVISIONS OF THIS SECTION.
IN WITNESS WHEREOF, this Mortgage has been duly executed by each
Mortgagor the day and year first above written.
9. RIDER. The Rider COUNTY OF MONROE INDUSTRIAL DEVELOPMENT AGENCY (L.S.)
attached hereto is -----------------------------------------------
made a part hereof. By: SIGNATURE ON ATTACHED RIDER (L.S.)
-----------------------------------------------
CVC PRODUCTS, INC. (L.S.)
-----------------------------------------------
By: /s/ Emi1io X. XxXxxxxxx (L.S.)
-----------------------------------------------
Xxx0xx X. XxXxxxxxx, Senior Vice
President and Chief Financial Officer
ACKNOWLEDGEMENT
STATE OF New York )
:SS.
COUNTY OF Monroe )
On the 29th day of September in the year 1997, before me personally came
--------------------------------------------------------------------------------
Individual to me known and known to me to be the person(s) described in and who
executed the above instrument, and _he (they jointly and severally)
acknowledged to me that _he (they) executed the same.
Partnership to me known and known to me to be a member of the partnership
described in and which executed the above instrument, and _he duly
acknowledged to me that _he executed the above instrument for and on
behalf of said partnership.
Corporation to me known, who, being by me duly sworn, did depose and say that he
resides at ______________________________________________; that _he
is the ________________________________ of _________________________
the corporation described in and which executed the above
instrument; and that _he signed his (her) name thereto by order of
the board of directors of said corporation.
LLC to me known, who, being duly sworn, did depose and say that he
resides at _____________________________________; that _he is the
__________________ ______________________________ of the limited
liability company described in and which executed the above
instrument; and that _he signed his (her) name thereto by order of
the members/managers of said limited liability company.
----------------------------------------
Notary Public
ACKNOWLEDGEMENT
STATE OF New York )
:SS.
COUNTY OF Monroe )
On the 29th day of September in the year 1997, before me personally came
Xxxxxx X. XxXxxxxxx
Individual to me known and known to me to be the person(s) described in and who
executed the above instrument, and _he (they jointly and severally)
acknowledged to me that _he (they) executed the same.
Partnership to me known and known to me to be a member of the partnership
described in and which executed the above instrument, and _he duly
acknowledged to me that _he executed the above instrument for and on
behalf of said partnership.
Corporation to me known, who, being by me duly sworn, did depose and say that
_he resides at 00X Xxxx Xx, Xxxxxxxxx, Xxx Xxxx; that _he is the
Senior Vice President and CFO of CVC Products, Inc. the corporation
described in and which executed the above instrument; and that _he
signed his (her) name thereto by order of the board of directors of
said corporation.
LLC to me known, who, being duly sworn, did depose and say that _he
resides at _______________________________________; that _he is the
_________________ ______________________________ of the limited
liability company described in and which executed the above
instrument; and that _he signed his (her) name thereto by order of
the members/managers of said liability company.
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Notary Public
Xxxxx X. Xxxxxxx
Notary Public, State of New York
No. 02RE5004856
Qualified in Monroe County
Certified in Monroe County
Commission Expires Nov. 23, 1998
5
MORTGAGE
================================================================================
To
M&T REAL ESTATE, INC.
================================================================================
Dated _____________________________, 19__
================================================================================
STATE OF NEW YORK
County of __________________________________SS.
RECORDED
On the
_____ day of _______, 19__
at ______ o'clock ______ M
In Liber ______ of Mortgages at Page ______ and examined.
----------------------------------
Clerk.
SCHEDULE "A"
ALL THAT TRACT OR PARCEL OF LAND situate in the City of Rochester, County of
Monroe, State of New York and described as follows:
BEGINNING at an iron pin set at the intersection of the division line between
the property of Xxxxxx X. Xxxxxxxxx (reputed owner) on the north and the
property of the County of Monroe Industrial Development Agency on the south with
the westerly boundary of Xxx Road; thence along said boundary the following two
(2) courses and distances: (1) South 00' 23' 31" east, a distance of 268.32 feet
to a set iron pin and (2) south O0' 00' 30" west, a distance of 428.76 feet to a
set iron pin; thence south 89' 36' 51" west, a distance of 487.59 feet to an
iron pin set on the easterly boundary of the existing Rochester Outer Loop-New
York State Route I-390; thence along said boundary the following two (2) courses
and distances: (1) North 00'06'56" west, a distance of 489.31 feet to an
existing monument and (2) north 00'0l'31" east, a distance of 207.76 feet to an
existing concrete monument at its intersection with the southerly boundary of
said Rochester Outer Loop-New York State Route I-390; thence north 89'36'51"
east along the last mentioned boundary and also along the beforementioned
division line between the property of Xxxxxx X. Xxxxxxxxx (reputed owner) on the
north and the property of the County of Monroe Industrial Development Agency on
the south, a distance of 486.71 feet to the point of beginning, containing 7.807
acres of land.
The above described parcel being more particularly shown on a survey made by
Xxxxxxx-Xxxx, dated August 2, 1988 entitled "Map of a Survey Part of Town Lot
100, 20,000 Acre Tract, City of Rochester, Monroe County."
of the Note and Mortgage and that a default exists hereunder to pay over to the
Mortgagee all rents, income and profits arising or accruing under the Agreement
or from the Premises and to continue so to do until otherwise notified by the
Mortgagee.
(5.) The Mortgagee may take or release other security for the
payment of the principal sum, interest and indebtedness, may release any party
primarily or secondarily liable therefore and may apply any other security held
by it to the satisfaction of such principal sum, interest or indebtedness
without prejudice to any of its rights under this Mortgage.
(6.) No act done or omitted by the Mortgagee pursuant to the powers
and rights granted it hereunder shall be deemed to be a waiver by the Mortgagee
of any of its other rights and remedies under the Mortgage. The right of the
Mortgagee to collect the principal sum, interest and indebtedness and to enforce
any other security therefore held by it may be exercised by the Mortgagee either
prior to, simultaneously with, or subsequent to any action taken by it
hereunder.
3. BORROWER'S COVENANTS REGARDING AGREEMENT
Borrower hereby agrees with Mortgagee (a) to pay directly to Mortgagee all
sums due and to become due to Mortgagee from the undersigned under the
Agreement, without setoff, counterclaim or deduction for any reason whatsoever;
(b) not to seek to recover from Mortgagee any monies properly paid to it
pursuant to the Agreement; (c) to perform for the benefit of Mortgagee all of
the duties and undertakings of the Borrower under the Agreement; (d) that
Mortgagee shall not be obligated to perform or be responsible for the
performance of any of the duties, undertakings or obligations of Agency under
the Agreement. Except as expressly set forth to the contrary, the foregoing
shall not be construed, however, as a waiver or release of any claims or rights
which the Borrower may at any time have against Agency or Mortgagee, and the
undersigned expressly reserves any such claims or rights and the right to pursue
the same at law or in equity.
4. ADDITIONAL COVENANTS OF BORROWER
Borrower shall be bound by and perform all the representations, covenants
and warranties in the Mortgage excepting only (1) those which relate solely to
the fee owner of the Premises during such time as the Agency is such fee owner,
and (2) Section 1 in the Rider to this Mortgage.
5. DAMAGE/CONDEMNATION
Notwithstanding Sections 5 and 18 of this Mortgage, the Premises must be
repaired or replaced following any damage or taking by eminent domain only if
Mortgagee makes the insurance proceeds or condemnation award available to
Mortgagor.
6. INSURANCE
Notwithstanding Section 2 of this Mortgage, all moneys payable pursuant to
such insurance shall be payable to Mortgagor if all of the following conditions
are satisfied: (1) there is no occurrence or continuance of an Event of Default
by the Mortgagor or Guarantor under the Loan Documents; (2) Mortgagee determines
in its reasonable discretion that the insurance proceeds are sufficient to
rebuild the Premises; and (3) that in the event Mortgagee determines that the
insurance proceeds are sufficient for rebuilding, an escrow account shall be
created for the insurance proceeds under the control of Mortgagee until the
rebuilding in completed.
4
7. NO TRANSFER EXCEPTION
Notwithstanding Section 12 and 27(a)(iv) of the Mortgage, Mortgagee's
consent shall not be required for a transfer of Borrower's and/or Guarantor's
stock, provided that no single shareholder (other than Guarantor) at any time
holds more than forty-nine percent (49%) of Borrower's authorized and issued
shares and that no single shareholder at any time holds more than forty-nine
percent (49%) of Guarantor's authorized and issued shares.
8. FINANCIAL STATEMENTS
Section 23 of the Mortgage is deleted in its entirety and replaced with
the following:
Within one hundred twenty (120) days after the end of Borrower's fiscal
year, Borrower will provide Mortgagee with a consolidated fiscal year-end
financial statement of CVC Holdings, Inc. (which includes Borrower) audited by
an independent certified public accountant approved by Mortgagee. Borrower will
also furnish consolidated quarterly financial Statements of CVC Holdings, Inc.
(including Borrower) certified by an officer of CVC Holdings, Inc. within
forty-five (45) days after the end of each fiscal quarter of CVC Holdings, Inc.
Where applicable, such financial statements shall include a profit and loss
statement, balance sheet and rent roll for the Premises. All statements shall
have been prepared in accordance with generally accepted accounting principles
to present fairly the results of Xxxxxxxx's operations and cash flows and its
financial position in conformity with such principles, and to be correct,
complete and in accordance with Xxxxxxxx's records. Promptly upon the request of
the Mortgagee from time to time, Borrower shall supply all additional
information requested and permit Mortgagee's officers, employee's, accountants,
attorneys and other agents to (a) visit and inspect the Premises; (b) examine,
audit, copy and extract from Borrower's records; and (c) discuss Borrower's or
affiliates' business operations, assets, affairs, or condition (financial or
other) with its responsible officers and independent accountants.
9. EVENTS OF DEFAULT
Section 27 is modified to include the following events of default:
Paragraph (a)(ii) is deleted in its entirety and replaced as
follows: (ii) payment of any of Mortgagor's debts or those of
Guarantor which, either individually or together with all other debt
of the Mortgagor and Guarantor for which payment has been demanded
or accelerated, has unpaid principal of $100,000.00 or more or an
event occurs which after notice or lapse of time would permit such
acceleration.
Notwithstanding subparagraph (a)(iv) in the Mortgage, it shall not
be an Event of Default if the Borrower or Guarantor has any lien
involuntarily entered against its assets dismissed or removed within
forty-five (45) days after being entered or if any judgment, order
or award entered against Borrower or Guarantor is dismissed, vacated
or bonded within forty-five (45) days after such entry, provided
that in all such cases, the creditor is stayed from taking any
enforcement collection, execution, levy or foreclosure proceeding on
any such lien, judgment, order or award. It shall not be an Event of
Default if the lien is less than $50,000.00.
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Notwithstanding subparagraph (a)(v) in the Mortgage, it shall not be
an Event of Default if Borrower or Guarantor has commenced against
it any proceeding pursuant to the Bankruptcy Code and such
involuntary proceeding is dismissed within forty-five (45) days
after petition therefor has been filed with the bankruptcy court.
Automatically upon the commencement of Borrower's or Guarantor's
bankruptcy if voluntary and upon lapse of forty-five (45) days
without dismissal if involuntary, all amounts outstanding hereunder
shall become immediately due and payable. Upon the occurrence of an
Event of Default hereunder, at the Mortgagee's option, all amounts
hereunder shall become immediately due and payable.
(g) Any default by Borrower under all other existing or future
agreements between Borrower and Mortgagee and/or Borrower and
Manufacturers and Traders Trust Company (including, without
limitation, a certain Term Loan Agreement with Manufacturers and
Traders Trust Company dated September 30, 1996).
Borrower shall not be in default under Section 27(a)(i) of this
Mortgage until five (5) days after delivery of written notice by Mortgagee.
Notwithstanding any other provision of Section 27 to the contrary,
Mortgagee shall not be in breach or default of Sections 3 (except for removal or
demolition of the principal manufacturing building of the Premises), 4, 5, 14,
23 and 26 of this Mortgage until thirty (30) days after delivery to Borrower of
written notice from Mortgagee specifying the breach or default and Borrower's
failure to cure or commence expeditiously to cure, such breach or default.
10. ENVIRONMENTAL TESTING
Borrower shall conduct further testing of the site of the former
inground vapor degreaser as recommended by XxXxxxx Associates in a Phase I
Environmental Assessment of the Premises dated September, 1997 and shall provide
Mortgagee with a written report of such testing not later than December 1, 1997.
If such report indicates further testing and or remediation is required by
Mortgagee, Borrower shall perform such testing or remediation expeditiously and
provide the Mortgagee with such written reports of its progress as the Mortgagee
may request. Failure to comply with the foregoing after fifteen (15) days
written notice from Mortgagee shall constitute an Event of Default. Reference is
also made to a certain Escrow Agreement between Borrower and Mortgagee dated
September 29, 1997 which is incorporated herein by reference.
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CVC PRODUCTS, INC.
By: /s/ Xxxxxx X. XxXxxxxxx,
------------------------------------
Xxxxxx 0. XxXxxxxxx,
Senior Vice President and
Chief Financial Officer
STATE OF NEW YORK)
COUNTY OF MONROE ) SS:
On this 29th day of September, 1997, before me, the subscriber, personally
appeared XXXXXX 0. XxXXXXXXX, to me known, who, being by me duly sworn, did
depose and say that he resides in Rochester, New York, that he is a Senior Vice
President and Chief Financial Officer of CVC PRODUCTS, INC., the corporation
described in, and which executed the within Instrument, and that he signed his
name thereto by order of the Board of Directors.
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Notary Public
Xxxxxx X. Xxxxxxx
Notary Public, State of New York
No. 02RE5004856
Qualified in Monroe County
Certified in Monroe County
Commission Expires Nov. 23, 1998
COUNTY OF MONROE INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Chairman
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
On this the 29th day of September, 1997, before me personally came
XXXXXX X. XXXXXX, to me known, who being by me duly sworn, did depose and say
that he resides at Mendon, New York; that he is the Chairman of the COUNTY OF
MONROE INDUSTRIAL DEVELOPMENT AGENCY, the public benefit corporation described
in and which executed the above instrument; and the he signed his name thereto
by order of the board of directors of said corporation
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
XXXXXXX X. XXXXXXXX
Notary Public State of New York
Qualified in Monroe County
Commission Expires May 31, 1999
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