EXHIBIT 10.19
NOTE AND MORTGAGE CONSOLIDATION, MODIFICATION,
SPREADER, EXTENSION AND SECURITY AGREEMENT
THIS NOTE AND MORTGAGE CONSOLIDATION, MODIFICATION, SPREADER, EXTENSION
AND SECURITY AGREEMENT (hereinafter referred to as the "Agreement" or the
"Mortgage"), dated April 15, 1999 by IFS INTERNATIONAL, INC., a New York
business corporation with its principal executive office and an office for the
transaction of business located at 000 Xxxxxx Xxxx, Xxxx, Xxx Xxxx 00000 (the
"Borrower"), TOWN OF NORTH GREENBUSH INDUSTRIAL DEVELOPMENT AGENCY, a public
benefit corporation existing under the laws of the State of New York with its
principal executive office and an office for the transaction of business located
at Wyantskill School Building, 0 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (the
"Mortgagor"), NEW YORK BUSINESS DEVELOPMENT CORPORATION, a banking corporation
organized and existing under Article 5 of the Banking Law of the State of New
York having an office at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (the
"Mortgagee") and RENSSELAER POLYTECHNIC INSTITUTE, a New York not-for-profit
corporation having an address of 000 0xx Xxxxxx, Xxxx, Xxx Xxxx 00000 (the
"Ground Lessor").
W I T N E S S E T H:
WHEREAS, pursuant to a certain bond and mortgage separation and
assignment agreement dated on or about the date hereof by and among the
Mortgagor, the Mortgagee, Xxxxxx River Bank & Trust Company and KeyBank National
Association and recorded in the Office of the Rensselaer County Clerk
immediately prior to the recordation hereof, the Mortgagee is the holder of the
following mortgages (the "Existing Mortgages") and the notes secured thereby
(the "Existing Notes"):
a four and one half percent (4.50%) interest in a certain mortgage and
security agreement given by the Mortgagor with consent from the Ground
Lessor to KeyBank National Association in the original principal amount
of One Million One Hundred Ninety Thousand and 00/100 Dollars
($1,190,000.00) dated as of October 2, 1997 and recorded in the Office
of the Rensselaer County Clerk on December 24, 1997 in Roll 79 at Frame
1952 having an outstanding principal balance as of the date hereof of
$1,132,400.00.
a mortgage and security agreement from the Borrower and the Mortgagor
with consent from the Ground Lessor in the original principal amount of
Nine Hundred Forty Nine Thousand Forty Two and 00/100 Dollars
($949,042.00) dated the date hereof and recorded in the Office of the
Rensselaer County Clerk simultaneously herewith.
WHEREAS, the Mortgagee and the Mortgagor, the fee simple owner of the
Improvements (as hereinafter defined) and the Borrower have mutually agreed to
consolidate and modify the terms of the Existing Notes and the Existing
Mortgages in the manner hereinafter appearing; and
NOW THEREFORE, in pursuance of said agreement and in consideration of
the sum of One Dollar ($1.00) and other good and valuable consideration each to
the other in hand paid, receipt of which is hereby acknowledged, the parties
hereto mutually covenants and agree as follows:
A. The Borrower covenants, represents and warrants that:
(i) There is, as of the date hereof, secured by the Existing
Mortgages, the aggregate unpaid principal sum of One Million and 00/100 Dollars
($1,000,000.00) together with interest thereon from the date hereof and other
sums or charges evidenced thereby;
(ii) There are no defenses, offsets or counterclaims of any
kind or nature whatsoever against the Existing Mortgages or the Existing Notes
and as of the date hereof, no Event of Default has occurred, nor has any event
occurred which would be an Event of Default under the Existing Mortgages or the
Existing Notes with the passage of time, the giving of notice or both;
(iii) The Borrower is a business corporation duly formed,
validly existing and in good standing under the laws of the State of New York
and has the power and capacity to enter into this Agreement and to mortgage and
pledge the property encumbered hereby in the manner and to the extent herein set
forth and the foregoing has been authorized by all requisite corporate action.
The Existing Mortgages and the Existing Notes constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms;
(iv) The execution and delivery of this Agreement have not
violated and will not violate the terms of (i) the articles of incorporation or
by-laws of the Borrower, (ii) any statute, law, rule, order, judgment or decree
of any governmental authority binding upon the Borrower or any of the property
of the Borrower or (iii) any agreement, indenture or other instrument binding
upon or affecting the Borrower or its property; and
(v) There are no actions, suits, appeals or proceedings
pending or, to the best of the Borrower's knowledge, threatened against or
affecting, the Borrower which may materially adversely affect the financial
condition of the Borrower, or the validity or enforceability of the Existing
Notes or the Existing Mortgages or the priority of the lien thereof, at law or
in equity, or before or by any governmental authority; and the Borrower is not
in default with respect to any order, writ, judgment, decree or demand of any
court or any governmental authority.
B. The Mortgagor covenants, represents and warrants that:
(i) The Mortgagor is a public benefit corporation duly formed,
validly existing and in good standing under the laws of the State of New York
and has the power and capacity to enter into this Agreement and to mortgage and
pledge the property encumbered hereby in the manner and to the extent herein set
forth and the foregoing has been authorized by all requisite corporate action.
The Existing Mortgages constitute legal, valid and binding obligations of the
Mortgagor enforceable against the Mortgagor in accordance with their respective
terms;
(ii) The execution and delivery of this Agreement have not
violated and will not violate the terms of (i) the by-laws of the Mortgagor,
(ii) any statute, law, rule, order, judgment or decree of any governmental
authority binding upon the Mortgagor or any of the property of the Mortgagor or
(iii) any agreement, indenture or other instrument binding upon or affecting the
Mortgagor or its property; and
(iii) There are no actions, suits, appeals or proceedings
pending or, to the best of the Mortgagor's knowledge, threatened against or
affecting, the Mortgagor which may materially adversely affect the financial
condition of the Mortgagor, or the validity or enforceability of the Existing
Mortgages or the priority of the lien thereof, at law or in equity, or before or
by any governmental authority; and the Mortgagor is not in default with respect
to any order, writ, judgment, decree or demand of any court or any governmental
authority.
C. The liens of the Existing Mortgages are hereby consolidated and
coordinated so that together they shall hereafter constitute in law but one
mortgage, a single lien upon the Mortgaged Property (hereinafter defined)
securing the Existing Notes.
D. If not heretofore granted, conveyed, bargained, sold, set over,
transferred, assigned, pledged and mortgaged unto the Mortgagee, the liens,
grants, conveyances, transfers, assignments and pledges of the Existing
Mortgages are hereby spread so that the Existing Mortgages shall cover, create a
security interest in and be a mortgage Lien upon, and the Borrower and the
Mortgagor do hereby grant, convey, bargain, sell, transfer, assign and pledge
unto the Mortgagee, and grant a security interest unto the Mortgagee in, all of
the following property (the "Mortgaged Property") as security for the
Indebtedness (hereinafter defined):
ALL right, title and interest of the Mortgagor and the
Borrower in and to a leasehold interest pursuant to the Ground Lease (as
hereinafter defined) in that certain real property described in Schedule "A"
attached hereto and made a part hereof (such leasehold interest being
hereinafter referred to as the "Land"), together with the right, title and
interest of Mortgagor and the Borrower, now owned or hereinafter acquired, in
and to the streets, the land lying in the bed of any streets, roads or avenues,
opened or proposed, in front of, adjoining or abutting the Land to the center
line thereof and strips and gores within or adjoining the Land, the air space
and right to use said air space above the Land, all rights of way, privileges,
liberties, hereditaments and all easements now or hereafter affecting the Land,
all royalties and all rights appertaining to the use and enjoyment of the Land,
including, without limitation, all alley, vault, drainage, mineral, water, oil
and gas rights;
TOGETHER with the buildings and improvements now or hereafter
erected on the land (the "Improvements") (the Land and Improvements are
hereinafter collectively referred to as the "Real Estate");
TOGETHER with all and singular the tenements, hereditament and
appurtenances belonging or in any way appertaining to the Real Estate, and the
reversion or reversions, remainder or remainders, rents, issues, profits and
revenue thereof; and also all of the estate, right, title, interest, dower and
right of dower, courtesy and rights of courtesy, property, possession, claim and
demand whatsoever, both in law and equity, of Mortgagor and Borrower, of, in and
to the Real Estate and of, in and to every part and parcel thereof, with the
appurtenances, at any time belonging or in any wise appertaining thereto;
TOGETHER with all of the fixtures and equipment of every kind
and nature whatsoever currently owned or hereafter acquired by Borrower or
Mortgagor, and all appurtenances and additions thereto and substitutions or
replacements thereof, now or hereafter attached to, or intended to be attached
to (though not attached to) the Real Estate or placed on any part thereof (such
fixtures and equipment are hereinafter collectively referred to as the
"Equipment"), including, but not limited to all plumbing, ventilating, air
conditioning and air-cooling apparatus, refrigerating, incinerating, and
escalator, elevator, power loading and unloading equipment and systems,
sprinkler systems and other fire prevention and extinguishing apparatus and
pipes, pumps, above ground or underground storage tanks, conduits, fittings and
fixtures; it being understood and agreed that all Equipment is appropriated to
the use of the Real Estate and, whether affixed or annexed or not, for the
purposes of this Mortgage shall be deemed conclusively to be Real Estate and
mortgaged hereby; and Mortgagor and Borrower hereby agree to execute and
deliver, from time to time, such further instruments (including security
agreements), as may be requested by Mortgagee to confirm the lien of this
Mortgage on the Equipment;
TOGETHER with all right, title and interest of the Mortgagor
and the Borrower in, to and under that certain ground lease dated May 26, 1983
from the Ground Lessor to Pacamor Bearings, Inc. a memorandum of which was
recorded in the Rensselaer County Clerk's Office on December 17, 1984 in Liber
1372 of Deeds at Page 891 as subsequently amended and assigned (as further
amended or supplemented from time to time, the "Ground Lease");
TOGETHER with all unearned premiums, accrued, accruing or to
accrue under insurance policies now or hereafter obtained by Mortgagor and/or
Borrower and Mortgagor's and Borrower's interest in and to all proceeds of the
conversion and the interest payable thereon, voluntary or involuntary, of the
Real Estate, and/or Equipment, or any part thereof, into cash or liquidated
claims, including, without limitation, proceeds of casualty insurance, title
insurance or any other insurance maintained on the Mortgaged Property, and the
right to collect and receive the same and all awards and/or other compensation
including the interest payable thereon and the right to collect and receive the
same heretofore and hereafter made to the present and all subsequent owners of
the Mortgaged Property by the United States, the State of New York or any
political subdivision thereof or any agency, department, bureau, board,
commission, or instrumentality of any of them, now existing or hereafter created
(collectively, "Governmental Authority") for the taking by eminent domain,
condemnation or otherwise, of all or any part of Mortgaged Property, including
all awards for any change or changes of grade or the widening of streets, roads
or avenues affecting the Real Estate;
TOGETHER with all rights, title and interest of Mortgagor and
the Borrower in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property, hereafter acquired by or released to Mortgagor and/or
Borrower or constructed, assembled or placed by Mortgagor and/or Borrower on the
Real Estate, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case, without further
mortgage, conveyance, assignment or other act by Mortgagor and/or Borrower, the
same shall become subject to the lien of this Mortgage as fully and completely,
and with the same effect, an though now owned by Mortgagor and/or Borrower and
specifically described herein;
TOGETHER with all proceeds, both cash and noncash, of the
foregoing which may be sold or otherwise be disposed of;
TOGETHER with any and all monies or hereafter on deposit for
the payment of real estate taxes or special assessments against the Real Estate
or for the payment of premiums on policies of fire and other hazard insurance
covering the Mortgaged Property.
TO HAVE AND TO HOLD the Mortgaged Property and the properties,
rights and privileges hereby granted, bargained, sold, conveyed, mortgaged,
warranted, pledged and assigned, and in which a security interest is granted or
intended to be, unto Mortgagee, its successors and assigns, forever, for the
uses and purposes herein set forth.
E. The Borrower shall pay the indebtedness evidenced by the Existing
Notes in accordance with the terms set forth in that certain amended and
restated note, dated the date hereof, in the principal amounts of $1,000,000.00,
from the Borrower in favor of the Mortgagee and by this reference made a part
hereof. The terms, covenants, conditions and provisions of the Existing Notes
shall be and hereby are modified, superseded and replaced by the terms,
covenants, conditions and provisions set forth therein such that any reference
herein to "Note", "note", "Notes" or "notes" or indebtedness shall be deemed to
refer collectively thereto.
E. The Borrower certifies that this Agreement secures the same
indebtedness evidenced by the Existing Notes and secured by the Existing
Mortgages and secures no further or other indebtedness or obligation.
F. The Borrower and the Mortgagor hereby (i) ratify and confirm the
lien, conveyance and grant contained in and created by the Existing Mortgages
and (ii) agrees that nothing contained in this Agreement is intended to or shall
impair the lien, conveyance and grant of the Existing Mortgages.
G. The terms, covenants and conditions of the Existing Mortgages shall
be and hereby are modified, superseded and replaced by the following terms,
covenants and conditions, and the Borrower and the Mortgagor agree to comply
with and be subject to all of the terms, covenants and conditions of the
Existing Mortgages, as modified hereby:
1. Warranty of Title. Borrower represents and warrants to Mortgagee that it
and the Mortgagor are lawfully seized of a leasehold interest in the Land and a
fee simple interest in the Improvements and the Equipment, and that it has good
and marketable title thereto free and clear of all encumbrances, liens,
covenants, restrictions, reservations, conditions, and easements other than
those identified in and not omitted from Schedule B to Chicago Title Insurance
Policy No. 9903.30450. Borrower represents and warrants that this Mortgage
constitutes a valid first mortgage lien on the Mortgaged Property; and Borrower
covenants to (a) warrant and preserve such title and the validity and priority
of the lien hereof and defend the same to Mortgagee against the claims of all
and every person or persons, corporation or corporations and parties whomsoever
claiming or threatening to claim the same or any part thereof and (b) make,
execute, acknowledge and deliver all such further or other documents,
instruments or assurances, and cause to be done all such further acts and things
as may at any time hereafter be reasonably desired or required by Mortgagee to
fully protect the lien of this Mortgage.
2. Payment of Indebtedness. Borrower shall duly and punctually pay the
Indebtedness at the times and places and in the manner specified in the Existing
Note and in this Agreement and shall perform all of its obligations in
accordance with the terms of this Agreement.
3. Proper Care and Use.
(a) Borrower shall:
(i) not abandon the Mortgaged Property or any part
thereof;
(ii) maintain the Mortgaged Property and the abutting
grounds, sidewalks, roads, parking and landscape areas in
good repair, order and condition;
(iii) promptly make all necessary repairs, renewals,
replacements and additions to the Mortgaged Property;
(iv) not commit or suffer wastes (other than
ameliorative waste) with respect to the Mortgaged Property:
(v) complete promptly and in a good workerlike manner
any new improvements constructed on the Land;
(vi) not commit, suffer or permit any act to be done in
or upon the Mortgaged Property in violation of any law,
ordinance or regulation;
(vii) (A) refrain from impairing or diminishing the
value or integrity of the Mortgaged Property or the security
value of this Mortgage; (B) not remove, demolish or in any
material respect alter any of the Improvements, Equipment or
Personalty without the prior written consent of Mortgagee;
or (C) not make, install or permit to be made or installed,
any alterations or additions thereto if doing so will impair
the value of the Mortgaged Property; and
(viii) not make, suffer or permit any nuisance to exist
on any of the Mortgaged Property.
(b) Mortgagee and any persons authorized by Mortgagee shall have
the right to enter and inspect the Mortgaged Property at all
reasonable times upon reasonable notice. If an Event of Default shall
have occurred and be continuing or in the event of an emergency,
Mortgagee and any persons authorized by Mortgagee may (without being
obligated to do so) enter or cause entry to be made upon the Real
Estate and repair and/or maintain the same as Mortgagee may reasonably
deem necessary or advisable, and may (without being obligated to do
so) make such expenditures and outlays of money as Mortgagee may deem
reasonably appropriate for the preservation of the Mortgaged Property.
All expenditures and outlays of money made by Mortgagee pursuant
hereto shall be secured hereby and shall be payable on demand together
with interest at the rate set forth in the Note from the date of such
expenditure or outlay until paid.
4. Requirements.
(a) Borrower represents and warrants that the Mortgaged Property
complies with and conforms to, and Borrower, at Borrower's sole cost
and expense, shall continue to promptly comply with and conform to, or
cause the Mortgaged Property to comply with and conform to, all
present and future laws, statutes, codes, ordinances, orders,
judgments, decrees, injunctions, rules, regulations and requirements
pertaining to the Mortgaged Property, including any and all applicable
federal, state or local environmental laws and regulations, all zoning
or building, use and land use laws, ordinances, rules or regulations
and all covenants, restrictions and conditions now or hereafter of
record which may be applicable to Borrower or to any of the Mortgaged
Property, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of any of
the Mortgaged Property (collectively, the "Legal Requirements").
(b) Without limiting the generality of the foregoing, Borrower
covenants to operate the Mortgaged Property (whether or not such
property constitutes a "Facility" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") so that no cleanup or other obligation arises in
respect of CERCLA or other applicable Federal law or under any state,
local or municipal law, statute, ordinance, rule or regulation
designed to protect the environment, which would constitute a lien or
charge on the Mortgaged Property prior to that of Mortgagee. If any
such claim be made or any obligation should nevertheless arise
hereafter, Borrower agrees that it will, at its own expense, (a)
promptly cure same and (b) will indemnify Mortgagee from any
liability, responsibility or obligation in respect thereof or in
respect of any cleanup or other liability as successor, secured party
or otherwise (regardless of whether or not Mortgagee may deem to be
"owner or operator" under CERCLA) for any reason including, but not
limited to, the enforcement of Mortgagee's rights as a secured party
under this Mortgage, or any obligation of law.
5. Payment of Impositions.
(a) Borrower shall pay and discharge before the last date payment may
be made without the imposition of interest or a penalty all taxes of every
kind and nature (including, without limitation, all real and personal
property, payments in lieu of real property, income, franchise,
withholding, profits and gross receipts taxes), all charges for any
easement or agreement maintained for the benefit of any of the Mortgaged
Property, all general and special assessments, levies, permits, inspection
and license fees, all water and sewer rents and charges and all other
public charges whether of a like or different nature, even if unforeseen or
extraordinary, imposed upon or assessed on or against Borrower or any of
the Mortgaged Property, together with any interest or penalties on any of
the foregoing (all of the foregoing are hereinafter collectively referred
to as the "Impositions"). Borrower shall deliver to Mortgagee receipts
satisfactory to Mortgagee evidencing the payment of all such impositions
within thirty days of the date each such imposition is due and payable.
Upon Borrower's failure to submit evidence of payment within such thirty
day period, it shall be deemed an Event of Default under Section 15 hereof.
(b) Mortgagee shall have the right to pay any Imposition not paid by
Borrower on or after the last date payment of such Imposition may be made
without imposition of interest or a penalty (subject to Borrower's right to
contest such Imposition as hereinbefore provided), and the amount thereof
together with interest thereon at the Default Rate (as hereinafter
defined), shall be added to the Indebtedness, payable on demand, and shall
be secured by this Agreement.
6. Insurance.
(a) Borrower shall, (i) keep the Real Estate (A) insured against loss
or damage by fire, lightning, windstorm, tornado and by such other further
and additional risks and hazards as now or hereinafter may be covered by
extended coverage and "all risk" endorsements, (B) insured against loss or
damage by any other risk commonly insured against by persons occupying or
using like properties in the locality in which the Real Estate is situated,
(ii) keep the equipment and personality insured against loss or damage by
fire, lightning, windstorm, tornado and theft and by such other further and
additional risks as now or hereinafter may be covered by extended coverage
and "all risks" endorsement, (iii) obtain and maintain comprehensive public
liability insurance on an occurrence basis against claims for personal
injury, including, without limitation, bodily injury, death or property
damage occurring on, in or about the Mortgaged Property and the adjoining
streets, sidewalks and passageways, such insurance to afford immediate
minimum protection to a limit of not less than One Million Dollars
($1,000,000.00) combined single limit for personal injury or death to one
or more persons or damage to property, (iv) to the extent the Land lies
within an area identified by the Secretary of Housing and Urban Development
as an area having special flood hazards, keep the Real Estate insured under
a policy of flood insurance in an amount reasonably requested by Mortgagee.
Each insurance policy shall (i) be noncancelable (which terms shall include
any reduction in the scope or limits of coverage) without at least ten (10)
days prior written notice to Mortgagee or (ii) except in the case or
worker's compensation and comprehensive public liability insurance, be
endorsed to name Mortgagee as its interest may appear, with loss payable to
Mortgagee, without contribution, under a standard mortgagee clause and in
the case of comprehensive public liability insurance, be endorsed to name
mortgagee as its interest may appear, with loss payable to Mortgagee,
without contribution, under a standard mortgagee clause and in the case of
comprehensive public liability insurance be endorsed to name Mortgagee as
an additional named insured, (iii) in the case of property insurance,
provide for deductibles acceptable to Mortgagee, (iv) be written by
companies acceptable to Mortgagee, and (v) contain an endorsement or
agreement by the insurer that any loss shall be payable in accordance with
the terms of such policy notwithstanding any act or negligence of Borrower
which might otherwise result in forfeiture of said insurance and the
further agreement of the insurer waiving all rights of set off,
counterclaim, deduction or subrogation against Borrower. Borrower hereby
directs all insurers under such policies (except worker's compensation and
comprehensive public liability insurance) to pay all proceeds payable
thereunder directly to Mortgagee.
(b) Borrower shall (i) pay as they become due all premiums for such
insurance, and (ii) not later than ten (10) days prior to the expiration of
each policy to be furnished pursuant to the provisions of this Section 6,
deliver a valid certificate of insurance (or if such certificate is not
then available, a renewal binder), evidencing a renewed policy or policies
marked "premium paid", or accompanied by such other evidence of payment
satisfactory to Mortgagee with standard noncontributory mortgage clauses in
favor or and acceptable to Mortgagee. Notwithstanding the foregoing,
Borrower shall not be required to provide proof of payment if Borrower and
such insurance company agree to an alternative, i.e., installment, method
of payment, and Mortgagee receives reasonably satisfactory evidence of the
terms of such payment arrangement. Such certificate of insurance (or
renewal binder) shall be accompanied by a written statement of Borrower
certifying that the insurance coverage evidenced thereby complies with the
requirements of this Section 6.
(c) If Borrower shall be in default of its obligations to so insure or
deliver any such prepaid certificate of insurance or renewal binder then
Mortgagee, at Mortgagee's option, after notice to Borrower (except that no
notice shall be required if the insurance has expired or been canceled or
terminated), may effect such insurance and pay the premium or premiums
therefor, and the amount of such premium or premiums so paid by Mortgagee,
with interest from the time of payment at the Default Rate (as hereinafter
defined), shall be added to the Indebtedness, payable on demand, and shall
be secured by this Mortgage.
7. Impositions and Insurance Escrow. Borrower, upon Mortgagee's request,
shall pay to Mortgagee an amount equal to one-twelfth of the estimated aggregate
annual amount of (i) all Impositions payable on the Mortgaged Property, and (ii)
insurance premiums on all policies of insurance required by this Mortgage, on a
specified date each month. Following receipt of Mortgagee's request, Borrower
shall cause all bills, statements or other documents relating to such
Impositions and insurance premiums to be sent or mailed directly to Mortgagee
pursuant to this Section 7. Mortgagee shall pay such amounts as may be due
thereunder out of the funds so deposited with Mortgagee. if at any time and for
any reason the funds deposited with Mortgagee are or will be insufficient to pay
such amounts as may then or subsequently be due, Mortgagee may notify Borrower
and Borrower shall immediately deposit an amount equal to such deficiency with
Mortgagee. Notwithstanding the foregoing, nothing contained herein shall cause
Mortgagee to be deemed a trustee of said funds or to be obligated to pay any
amounts in excess of the amount of funds deposited with Mortgagee pursuant to
this Section 7, and Borrower shall be entitled to no interest thereon.
8. Condemnation/Eminent Domain. Mortgagor and Borrower hereby irrevocably
assign to Mortgagee, as additional security for the payment of the Indebtedness,
all of their respective awards and/or other compensation, including interest
payable thereon, hereafter made by any Governmental Authority for the taking by
eminent domain, condemnation or otherwise, of all or any part of the Mortgaged
Property ("Awards"). Mortgagor and Borrower agree that all such Awards shall be
paid to Mortgagee and, subject to the provisions of Article VII of the Lease
Agreement (as hereinafter defined), shall be applied by Mortgagee, after the
payment of all of its expenses in connection with such proceedings, including
costs and attorneys' fees, to the reduction of the Indebtedness with the balance
(if any) to be paid to Borrower. Mortgagor and Borrower hereby authorize
Mortgagee, on behalf and in the name of Mortgagor and Borrower, to collect,
execute and deliver valid acquittances for, and to appeal from, any such Awards.
9. Discharge of Liens, Utilities. (a) Mortgagor and Borrower shall not,
without prior written consent of Mortgagee, create, consent to or suffer the
creation of any liens, charges or encumbrances (each, a "Prohibited Lien") on
any of the Mortgaged Property, whether or not such Prohibited Lien is
subordinate to this Mortgage, or fail to have any Prohibited Lien which may be
imposed without Borrower's consent discharged and satisfied or record within
thirty (30) days after it is imposed, except those liens bonded while being
contested. Borrower shall pay when due all lawful claims and demands of
mechanics, material persons, laborers and others which, if unpaid, might result
in, or permit the creation of a Prohibited Lien, except that Borrower shall have
the right to contest such claims or demands, provided that Borrower shall
furnish a good and sufficient bond, surety or other security satisfactory to
Mortgagee.
(b) Borrower shall pay when due all utility charges which are incurred
by it for gas, electricity, water or sewer services and all other
assessments or charges of a similar nature, whether public or private and
whether or not such taxes, assessments or charges are liens on the
Mortgaged Property.
10. Estoppel Certificates. From time to time, within ten (10) days after a
request of Mortgagee, Borrower shall furnish a written statement, signed and, if
requested, acknowledged, setting forth the amount of the Indebtedness which the
Borrower acknowledges to be secured hereby, specifying any claims of offset or
defense which Borrower asserts against the Indebtedness, and, at the request of
the Mortgagee, the then state of facts relevant to the condition of the
Mortgaged Property.
11. Expenses. Borrower shall pay, together with any interest or penalties
imposed in connection therewith, all expenses incident to the preparation,
execution, acknowledgment, delivery and/or recording of this Mortgage,
including, without limitation, all filing, registration or recording fees and
all federal, state, county and municipal, internal revenue or other stamp taxes
and other taxes, duties, imposts, assessments and charges now or hereafter
required by the federal, state, county or municipal government, the legal fees
of the Mortgagee's Attorney, survey charges, title insurance premiums, and any
other expenses connected with this transaction.
12. Mortgagee's Costs and Expenses. Upon the occurrence of any Event of
Default or the proper exercise by Mortgagee of any Mortgagee's rights hereunder,
or if any action or proceeding be commenced, to which action or proceeding
Mortgagee is or becomes party or in which it becomes necessary to defend or
uphold the lien of this Mortgage, or if the taking, holding or servicing of this
Mortgage by Mortgagee is alleged to subject Mortgagee to any civil fine, or if
Mortgagee's review and approval of any document is requested by Borrower or
required by Mortgagee in connection therewith, then any fees incurred by
Mortgagee in connection therewith (including any civil fines and attorneys' fees
and disbursements) shall, after notice and demand, be paid by Borrower, or, if
paid by Mortgagee, the amount thereof, together with interest thereon at the
Default Rate (as such term is hereinafter defined) shall be added to the
Indebtedness, payable on demand, and shall be secured by this Mortgage; and, in
any action to foreclose this Mortgage, or to recover or collect the
Indebtedness, the provisions of this Section 12 with respect to the recovery of
costs, disbursements and allowances shall prevail unaffected by the provisions
of any law with respect to the same to the extent that the provisions of this
Section 12 are not violative thereof.
13. Mortgagee's Right to Perform. If any Event of Default shall have
occurred hereunder and be continuing, Mortgagee, may (but shall be under no
obligation), cure the same, and the cost thereof, with interest at a fluctuating
per annum rate (the "Default Rate") equal to the rate of interest announced
publicly by Mortgagee from time to time as its Prime Rate plus three percent
(3%) per annum, shall be added to the Indebtedness, payable on demand, and shall
be secured by this Mortgage. No payment or advance of money by Mortgagee under
this Mortgage shall be deemed or construed to cure any Event of Default arising
out of the non-payment of such amount by Borrower or waive any right or remedy
of Mortgagee hereunder. The lien of this Mortgage with respect to such amounts
shall be prior to any right, title to, interest in or claim upon the Mortgaged
Property attaching subsequent to the lien of this Mortgage.
14. Further Assurances. Mortgagor and Borrower agree, upon demand of
Mortgagee, to do any act or execute any additional documents (including, but not
limited to, security agreements on any Equipment or Personalty included or to be
included in the Mortgaged Property) as may be reasonably required by Mortgagor
and Borrower to confirm the lien of this Mortgage.
15. Events of Default. The occurrence of any one or more of the following
events shall constitute an Event of Default by Borrower hereunder:
(a) default in the payment of all or any portion of any installment of
principal and/or interest as and when the same become due under the
Existing Note, which default continues for a period in excess of fifteen
(15) days from such due date; or
(b) default in the performance or observance of any covenant on the
part of the Mortgagor or Borrower to be performed or observed hereunder, or
under any other agreement between Borrower and Mortgagee which default
continues beyond the expiration of any applicable grace or notice period
expressly provided herein, or if no grace period is expressly provided, if
the default continues more than fifteen (15) days after the giving of
written notice thereof from Mortgagee, or, if such default is of such a
nature that it cannot with due diligence be cured within fifteen (15) days,
if Borrower shall fail to commence to cure such default with such fifteen
(15) day period and thereafter prosecute such cure diligently; or
(c) if Mortgagor or Borrower shall sell, convey, assign or transfer
(other than a transfer as the result of a taking by condemnation or eminent
domain) the Mortgaged Property or any part thereof or interest therein (any
sale, conveyance, assignment or transfer of a controlling interest in
Borrower being deemed a sale of the Mortgaged Property for purposes
hereof), or of the Mortgaged Property or any part thereof or interest
therein, including, without limitation, any rents, royalties, profits,
income or revenue arising therefrom, is further mortgaged, pledged or
encumbered; or
(d) the voluntary suspension of all or a substantial part of its
business by Borrower, the insolvency of the Borrower or any guarantor
hereof, the commencement of any proceedings under any bankruptcy or
insolvency law by or against the Borrower, an assignment for the benefit of
creditors by Borrower, or any guarantor hereof, application for consent to
the appointment of any receiver or trustee for the Borrower, or any
assignment to an agent authorized to liquidate any substantial part of the
assets of Borrower; or
(e) the occurrence of an Event of Default under the Note or under any
of the Lease Documents (as defined in the hereinafter defined Lease
Agreement); or
(f) failure to provide copies of paid tax bills required to be
provided pursuant to Article 5 of this Mortgage; or
(g) failure to provide copies of any financial statement required to
be provided to article 26 of this mortgage.
16. Remedies. Upon the occurrence of any Event of Default hereunder,
Mortgagee may declare the entire Indebtedness to be immediately due and payable
without presentment, demand, protest or notice of any kind, and Mortgagee may
take any and all actions permitted at law or in equity, without notice or
demand, as it deems advisable to protect and enforce Mortgagee's rights against
Mortgagor and Borrower in and to the Mortgaged Property, including, but not
limited to, the following actions:
(a) Either in person or by agent, with or without bringing any action
or proceeding, or by a receiver appointed by a court and without regard to
the adequacy of its security, enter upon or take possession of Mortgaged
Property, or any part thereof, and do any acts which it deems necessary or
desirable to preserve the value, marketability or rentability of the
Mortgaged Property, or any part thereof or interest therein, or increase
the income therein, or increase the interest therefrom or protect the
security hereof and, with or without taking possession of the Mortgaged
Property, xxx for or otherwise collect the rents, issues and profits
thereof, including those past due and unpaid and apply the same, less costs
and expenses of operations and collection, including reasonable attorneys'
fees and expenses, against the Indebtedness, all in such order as Mortgagee
may determine. The entering upon and taking possession of the Mortgaged
Property, the collection of such rents, issues and profits and the
application thereof as foresaid, shall not cure or waive any default or
notice of default hereunder or invalidate any act done in response to such
default, and notwithstanding the continuance in possession of the Mortgaged
Property or the collection, receipt and application of rents, issues or
profits, Mortgagee shall be entitled to exercise every right provided for
in the Existing Note, this Mortgage or by law upon occurrence of any Event
of Default, including the right to exercise the power of sale.
(b) Commence an action to foreclose this Mortgage as a lien, and sell
the Mortgaged Property under the judgment or decree of a court of competent
jurisdiction.
(c) Appoint a receiver, as provided herein.
(d) Specifically enforce any of the covenants on the part of the
Mortgagor and Borrower contained herein.
In the event that Mortgagee elects to exercise its right to declare the
entire indebtedness immediately due and payable, Mortgagee shall not be deemed
to have waived its right to collect any prepayment penalty payable pursuant to
the Existing Note.
17. Proceeds of Sale Under Security Agreement. The purchase money proceeds
of any sale made pursuant to any security agreement contained in this Mortgage
shall be distributed according to the provisions of the Uniform Commercial Code
of the State of New York.
18. Appointment of Receiver. If an Event of Default shall have occurred and
be continuing, Mortgagee as a matter of right without notice to Mortgagor or
Borrower, and without regard to the then value of the Mortgaged Property or the
interest of Mortgagor or Borrower therein, shall have the right to apply to any
court having jurisdiction to appoint a receiver or receivers of the Mortgaged
Property. Mortgagor and Borrower irrevocably consent to such appointment and
waive notice of any application therefor.
19. Extension, Release, etc. Without affecting the lien or charge of this
Mortgage upon any portion of the Mortgaged Property not then or therefore
released as security for the full amount of all unpaid obligations, Mortgagee
may, from time to time and without notice, agree to (i) release any persons so
liable, (ii) extend the maturity or alter any of the terms of any such
obligation (provided, however, that Borrowers shall have consented to any such
extension or alteration), (iii) grant other indulgences, release or reconvey, or
caused to be released or reconveyed at any at Mortgagee's option any parcel,
portion or all of the Mortgaged Property, (iv) take or release any other or
additional security for the Indebtedness, or (v) make compromises or other
arrangements with debtors in relation thereto.
20. Remedies Not Exclusive. Mortgagee shall be entitled to enforce payment
or performance of the Indebtedness and to exercise all rights and powers under
this Mortgage or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien, security
interest, assignment or otherwise. Neither the acceptance of this Mortgage nor
its enforcement, whether by court action or pursuant to the power of sale or
other powers herein contained, shall prejudice or in any manner affect
Mortgagee's right to realize upon or enforce any other security now or hereafter
held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce
this Mortgage and any other security now or hereafter held by Mortgagee in such
order and manner as it may in its absolute discretion determine. No remedy
herein conferred upon or reserved to Mortgagee is intended to be exclusive of
any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law in equity or by statute. Every power or remedy
given to Mortgagee or to which it may be exercised, concurrently or
independently, from time to time as often as may be deemed expedient by
Mortgagee.
21. Security Agreement Under Uniform Commercial Code. It is the intention
of the parties hereto that this Mortgage shall constitute a Security Agreement
within the meaning of Article 9 of the Uniform Commercial Code of the State of
New York. Notwithstanding the filing of a financing statement covering any of
the Mortgaged Property in the records normally pertaining to personal property,
all of the Mortgaged Property, for all purposes and in all proceedings, legal or
equitable, shall be regarded, at Mortgagees' option (to the extent permitted by
law) as part of the Real Estate whether or not any such item is physically
attached to the Real Estate or serial numbers are used for the better
identification of certain items. The mention in any such financing statement of
any of the Mortgaged Property shall never be construed as in any way derogating
from or impairing this declaration and it is the hereby stated intention of the
parties that such mention in protection of Mortgagee in the event any court
shall at any time hold that notice of Mortgagee's priority of interest, to be
effective against any third party, including the federal government and any
authority or agency thereof, must be filed in the Uniform Commercial Code
records. Mortgagor and Borrower hereby agree that each shall execute and hereby
authorizes Mortgagee to file any financing and continuation statements which
Mortgagee shall determine in its sole discretion are necessary or advisable in
order to perfect it security interest in the Equipment and Personalty covered by
this Mortgage, and Borrower shall pay any expenses incurred by Mortgagee in
connection with the preparation, execution and filing of such statements that
may be filed by Mortgagee, or, if paid by Mortgagee, such amounts, together with
interest at the Default Rate, shall be added to the Indebtedness, payable on
demand, and shall be secured by this Mortgage.
22. Indemnification; Waiver of Claim. If Mortgagee is made a party
defendant to any litigation concerning this Mortgage or the Mortgaged Property,
or any part thereof or interest therein, or the occupancy thereof by Borrower,
then Borrower shall indemnify, defend and hold Mortgagee harmless from all
liability by reason of said litigation (other than that arising from Mortgagee's
own willful misconduct or gross negligence), including reasonable attorneys'
fees and expenses incurred by Mortgagee in such litigation, whether or not any
such litigation is prosecuted to judgment. If Mortgagee commences an action
against Mortgagor and/or Borrower to enforce any of the terms thereof or because
of the breach by Mortgagor and/or Borrower of any of the terms hereof, or for
the recovery of any sum secured hereby, Borrower shall pay Mortgagee's
reasonable attorneys' fees and expenses, or, if paid by Mortgagee, the amount
thereof, together with interest thereon at the Default Rate, shall be added to
the Indebtedness, payable on demand, and shall be secured by this Mortgage. The
right to such attorneys' fees and expenses shall be deemed to have accrued on
the commencement of such action, and shall be enforceable whether or not such
action is prosecuted to judgment. If an Event of Default shall have occurred,
Mortgagee may engage an attorney or attorneys to protect its rights hereunder,
and in the event of such fees and expenses incurred by Mortgagee, whether or not
action is actually commenced against Mortgagor and/or Borrower by reason of such
Event of Default.
23. No Waivers, etc. Any failure by Mortgagee to insist upon the strict
performance by Mortgagor or Borrower of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor and Borrower of
any and of all of the terms and provisions of this Mortgage to be performed by
Mortgagor and Borrower; Mortgagee may release, regardless of consideration and
without the necessity for any notice to or consent by the holder of any
subordinate lien on the Mortgaged Property, any part of the security held for
the obligations secured by this Mortgage without, was to the remainder of the
security, in any wise impairing or affecting the lien of this Mortgage or the
priority of such lien over any subordinate lien.
24. Notices. Whenever it is provided herein that notice, demand, request,
consent, approval or other communication shall or may be given to or served upon
either of the parties by the other, or whenever either of the parties desires to
give or serve upon the other any notice, demand, request, consent, approval, or
other communication with respect to this Mortgage or to the Mortgaged Property,
each such notice, demand, request, consent, approval or other communication
shall be in writing and shall be deemed to have been sufficiently given or
served when delivered by hand or by overnight courier service or when sent by
registered or certified mail, return receipt requested, postage prepaid,
directed to the party to receive the same at its address stated above or at such
other addresses as may be substituted by notice given upon receipt or, if
receipt is refused, three (3) days after waiting.
25. No Modification. This Mortgage may not be modified, amended, discharged
or waived in whole or in part except by an agreement in writing signed by the
party against whom enforcement of any such modification, amendment, discharge or
waiver is sought.
26. Financial Information; Covenants. (a) So long as the Indebtedness shall
be outstanding, Borrower shall deliver to Mortgagee, or shall cause to be
delivered to Mortgagee, as soon as they are available and in any event within
five (5) days of the issuance thereof, a copy of the annual 10k report and
quarterly 10Q report for the Borrower's corporate parent, IFS International,
Inc. Additionally, the Borrower shall submit or cause to be submitted such other
financial information as the Mortgagee shall reasonably request concerning any
tenant at the Mortgaged Premises. Upon Borrower's failure to submit any
statement or information required by this section within the time specified
therefore, it shall be deemed an event of default under Section 15 hereof.
(b) So long as the Indebtedness shall remain outstanding, the Borrower
shall maintain a minimum debt service coverage ratio combined with respect
to the Indebtedness and all indebtedness due and owing to Xxxxxx River Bank
& Trust Company, its successors and assigns, of 1.20 to 1.00 to be tested
annually as of the close of each fiscal year of the Borrower.
(c) So long as the Indebtedness shall remain outstanding, the Borrower
shall maintain a debt to worth ratio not in excess of 1.25 to 1.00 to be
tested annually as of the close of each fiscal year of the Borrower.
27. Captions. The captions or headings at the beginning of each Article
hereof are for the convenience of the parties and are not a part of this
Mortgage.
28. Successors and Assigns. The covenants contained herein shall run with
the land and bind Borrower, its successors and assigns and all subsequent
owners, encumbrancers, tenants and subtenants of the Mortgaged Property, and
shall insure to the benefit of the Mortgagee, its successors, assigns and
endorsees.
29. Enforceability. All provisions of this Mortgage shall be construed as
affording to Mortgagee additional rights to and not exclusive of the rights
conferred under the provisions of Section 254 and 272 of the Real Property law
of the State of New York. The creation of this Mortgage, the perfection of the
lien or security interest in the Mortgaged Property, and the rights and remedies
of Mortgagee with respect to the Mortgaged Property, as provided herein and by
the laws of the State of New York, shall be governed by and construed in
accordance with the laws of the State of New York. Whenever possible, each
provision of this Mortgage shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Mortgage
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or validity, without invalidating
the remaining provisions of this Mortgage. Nothing in this Mortgage shall
require Borrower to pay, or Mortgagee to accept, interest or other payments in
an amount which would subject Mortgagee to penalty under applicable law. In the
event that the payment of any interest or other amounts due hereunder would be
in excess of the maximum amount allowed by applicable law, then ipso facto the
obligation of Borrower to make such payment shall be reduced to the highest rate
authorized by such law.
30. Trust Fund. This Mortgage is subject to the trust fund provisions of
Section 13 of the Lien Law of the State of New York; the Borrower shall receive
the proceeds of the Existing Note secured hereby, and shall hold the right to
receive such proceeds, as a trust fund to be applied first for the purpose of
paying the cost of any improvements before using any part of such proceeds for
any other purpose.
31. Miscellaneous. As used in this Mortgage, the singular shall include the
plural as the context requires and the following words and phrases shall have
the following meaning: (a) "including" shall mean "included but not limited to";
(b) "provisions" shall mean "provisions, terms, covenants and/or conditions";
(c) "lien" shall mean "lien, charge, encumbrance, security interest, mortgage
and/or deed of trust"; (d) "obligation" shall mean "obligation, duty, covenant
and/or condition"; and (e) "any of the Mortgaged Property" shall mean "the
Mortgaged Property or any part thereof or interest therein." Any act which
Mortgagee is permitted to perform hereunder may be performed at any time and
from time to time by Mortgagee or any person or entity designated by Mortgagee.
Any act which is prohibited to Borrower hereunder is also prohibited to all
lessees of any of the Mortgaged Property. Each appointment of Mortgagee and
attorney-in-fact for Borrower under the Mortgage is irrevocable and coupled with
an interest. Mortgagee has the right to refuse to grant its consent, approval or
acceptance or to indicate its satisfaction is required hereunder, except as
otherwise expressly provided herein.
32. Town of North Greenbush Industrial Development Agency Special
Obligations; Recording. (a) This Mortgage is executed by the Mortgagor solely
for the purpose of subjecting its fee ownership interest in the Premises to the
lien of this Mortgage and for no other purpose. All representations, covenants
and warranties of the Mortgagor herein are hereby deemed to have been made by
Borrower, and not by the Mortgagor. The parties hereby expressly agree that the
terms "Borrower" and "Mortgagor", as such are used in this Mortgage, shall not
be defined to include the Mortgagor.
(b) The obligations and agreements of the Mortgagor contained herein
and other instrument or documents executed in connection herewith or
therewith, and any other instrument or document supplemental thereto or
hereto, shall be deemed the obligations and agreements of the Mortgagor,
and not of any member, officer, agent (other than the Borrower) or employee
of the Mortgagor in his individual capacity, and the members, officers,
agents (other than the Borrower) and employees of the Mortgagor, shall not
be liable personally hereon or thereon or be subject to any personal
liability or accountability based upon or in respect hereof or thereof or
any transaction contemplated hereby or thereby.
(c) The obligations and agreements of the Mortgagor contained herein
and therein shall not constitute or give rise to an obligation of the State
of New York or the Town of North Greenbush, New York, and neither the State
of New York nor the Town of North Greenbush, New York, shall be liable
hereon or thereon, and, further, such obligations and agreements shall not
constitute or give rise to a general obligation of the Mortgagor, but
rather shall constitute limited obligations of the Mortgagor payable solely
from the revenues of the Mortgagor derived and to be derived from the
lease, sale or other disposition of the Mortgaged Property.
(d) No order or decree of specific performance with respect to any of
the obligations of the Mortgagor hereunder shall be sought or enforced
against the Mortgagor unless (i) the party seeking such order or decree
shall first have requested the Mortgagor in writing to take the action
sought in such order or decree of specific performance, and ten (10) days
shall have elapsed from the date of receipt of such request, and the
Mortgagor shall have refused to comply with such request (or, if compliance
therewith would reasonably be expected to take longer than ten days, shall
have failed to institute and diligently pursue action to cause compliance
with such request within such ten day period) or failed to respond within
such notice period, (ii) if the Mortgagor refuses to comply with such
request and the Mortgagor's refusal to comply is based on its reasonable
expectation that it will incur fees and expenses, the party seeking such
order or decree shall have placed in an account with the Mortgagor in
amount of undertaking sufficient to cover such reasonable fees and expenses
and (iii) if the Mortgagor refuses to comply with such request and the
Mortgagor's refusal to comply is based on its reasonable expectation that
it or any of its members, officers, agents (other than the Borrower) or
employees shall be subject to potential liability, the party seeking such
order or decree shall (A) agree to indemnify, defend and hold harmless the
Mortgagor and its members, officers, agents (other than the Borrower) and
employees against any liability incurred as a result of its compliance with
such demand, and (B) if requested by the Mortgagor, furnish to the
Mortgagor satisfactory security to protect the Mortgagor and its members,
officers, agents (other than the Borrower) and employees against all
liability expected to be incurred as a result of compliance with such
request.
(e) The Mortgagee will record or cause this Mortgage to be recorded in
all offices where the recordation hereof is necessary and will pay, or
cause to be paid, all documentary stamp taxes, if any, which may be imposed
by the United States of America or any agency thereof or by the State of
New York or other governmental authority upon this Mortgage.
33. Execution by Ground Lessor.
(a) This Mortgage has been executed by the Ground Lessor for the sole
purpose of having the Ground Lessor consent to this Mortgage.
(b) Notwithstanding any other provisions of this Mortgage, the parties
hereto agree as follows:
(i) the proceeds of any insurance or condemnation award allocable
to the Land and the Improvements shall be applied as required under
the terms of that certain lease agreement dated as of October 2, 1997
by and between the Mortgagor and the Borrower as amended by a first
amendment to lease agreement dated the date hereof as further amended
or supplemented from time to time, (the "Lease Agreement"); provided,
however, that in the event of a conflict between the provisions of the
Lease Agreement and the Ground Lease with respect to the application
of the proceeds of such insurance or condemnation award, the Lease
Agreement with respect thereto shall control; and
(ii) the Ground Lessor and the Borrower shall receive a copy of
all notices given or received by the Mortgagee pursuant to the
provisions of this Mortgage and the Mortgagee shall accept performance
of any covenant in default by the Ground Lessor, it is performed
within the time allotted to the Borrower or the Mortgagor to perform.
(c) The Mortgagee hereby agrees that in no event shall the Ground
Lessor be liable personally under this Mortgage or the Note or the Lease
Agreement and in no event shall any deficiency or personal judgment or
order or decree of specific performance with respect to the Ground Lessor
under the Note or this Mortgage or the Lease Agreement be sought or
enforced against the Ground Lessor, and the Mortgagee hereby specifically
waives and relinquishes any right it might otherwise have had to seek such
deficiency or personal judgment or order or decree of specific performance.
(d) The provisions of this Section 33 shall control over any contrary
or inconsistent provisions contained in this Mortgage or the Lease
Agreement.
(e) The Ground Lessor's execution of this Mortgage shall in no way be
construed as a waiver or modification of the Ground Lessor's rights against
the Borrower as provided in the Ground Lease except as expressly set forth
in this Section 33.
(f) The Mortgagee shall observe and perform all of the terms and
conditions in the Ground Lease on the part of the tenant thereunder to be
observed and performed if and when the Mortgagee shall enter into
possession of the Mortgagor's leasehold estate, or otherwise take steps to
enforce its security having the effect of depriving the said tenant of the
ability to fully perform its covenants and obligations under the Ground
Lease, and upon the exercise of any power of sale or any sale pursuant to
foreclosure or any other legal proceedings, the Mortgagee shall cause the
purchaser of the tenant's leasehold estate under the Ground Lease to
covenant with the Ground Lease landlord to observe and perform all the
terms and conditions of the Ground Lease on the part of the said tenant to
be observed and performed.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
IFS INTERNATIONAL, INC.
By:_____________________________________
Name:___________________________________
Title:____________________________________
TOWN OF NORTH GREENBUSH
INDUSTRIAL DEVELOPMENT AGENCY
By:_____________________________________
Name:___________________________________
Title:____________________________________
NEW YORK BUSINESS DEVELOPMENT CORPORATION
By:_____________________________________
Name:___________________________________
Title:____________________________________
The Ground Lessor hereby executes this Agreement pursuant to the provisions of
Section 33 hereof.
RENSSELAER POLYTECHNIC INSTITUTE
By:_____________________________________
Name:___________________________________
Title:____________________________________
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On this __ day of April, 1999, before me personally came
__________________, to me known, who being by me duly sworn, did depose and say
that he resides at __________________________, New York, that he is the
_________________ of IFS INTERNATIONAL, INC., the corporation described in and
which executed the foregoing instrument, and he acknowledged that he signed his
name thereto by order of the Board of Directors of said corporation.
---------------------------------------
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On the ____ day of April, 1999, before me personally came
__________________, to me known, who being by me duly sworn, did depose and say
that he resides at _________________________, New York, that he is the
____________ of the TOWN OF NORTH GREENBUSH INDUSTRIAL DEVELOPMENT AGENCY, the
public benefit corporation of the State of New York described in and which
executed the foregoing instrument; and that he signed his name thereto by
authority of said public benefit corporation.
---------------------------------------
Notary Public
STATE OF NEW YORK )
)SS.:
COUNTY OF )
On this ___ day of April, 1999, before me personally came
________________ to me personally known, who, being by me duly sworn, did depose
and say that he resides at ______________________, New York, that he is a
_________________________ of NEW YORK BUSINESS DEVELOPMENT CORPORATION, the
banking corporation described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
such banking corporation.
---------------------------------------
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On this __ day of April, 1999, before me personally came
__________________, to me known, who being by me duly sworn, did depose and say
that he resides at __________________________, New York, that he is the
_________________ of RENSSELAER POLYTECHNIC INSTITUTE the not-for-profit
corporation described in and which executed the foregoing instrument, and he
acknowledged that he executed the foregoing for and on behalf of said
not-for-profit corporation.
---------------------------------------
Notary Public
A-1
SCHEDULE "A"
PROPERTY DESCRIPTION
