MORTGAGE NOTE
Rochester, New York $530,000.00
October 6, 1998
FOR VALUE RECEIVED, the undersigned, POWDER MILL LAND COMPANY, with offices at
00 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000, ( the "Borrower" or
"Mortgagor"), promises to pay to the order of FIRST NATIONAL BANK OF ROCHESTER
(the "Bank" or "Mortgagee"), a national banking association with its principal
office at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 in lawful money of the
United States and in immediately available funds, the sum of Five Hundred Thirty
Thousand and No/100 Dollars ($530,000.00) (the "Principal Sum") and interest on
the unpaid portion of the Principal Sum as provided below (collectively the
"Loan").
Definitions
As used in this Note, the following capitalized terms shall have the
meanings set forth below:
"Holder" means the Holder of this Note.
"Loan Documents" mean this Note and the Mortgage secured thereby.
"Maturity Date" means October 6, 2008.
"Mortgage" means the Mortgage of even date herewith securing this
Note.
"Person" means any individual, partnership, corporation, trust or
unincorporated organization, and any government agency or political subdivision
or branch thereof.
"Premises" means certain real property owned by Mortgagor commonly
known as Powder Mill Office Park, Building No. 1, located at 0000
Xxxxxxxxx-Xxxxxx Xxxx, xx xxx Xxxx xx Xxxxxxxx, Xxxxxx xx Xxxxxx, and State of
New York.
"Taxes" mean all real estate and similar taxes and assessments
(including assessments for local or municipal improvements and payments in lieu
of taxes), personal property taxes and assessments, sales, use and occupancy
taxes, water and sewer rates, rents and charges, water pollution control
charges, charges for public utilities, fees for governmental approvals, and all
other governmental charges and fees, of any kind and nature whatsoever, which
may at any time during the term of the Loan be assessed or levied against or
imposed upon or be payable with respect to or become a lien on the Premises or
any part thereof.
Introduction
This Note is secured by a Mortgage of even date herewith on the
Premises.
Payment Terms
(a) During the first five (5) years of the term of the Loan
beginning on the date hereof, interest shall be fixed at and accrue on the
Principal Sum or so much thereof as is outstanding from time to time at the rate
of 7.90% per annum. On the first day November, 1998, Mortgagor shall make one
(1) payment of interest only to the Bank. Thereafter, on the first day of
December, 1998, and on the first day of each and every month thereafter during
said first five (5) years of the term, Mortgagor shall make a constant monthly
payment of principal and interest to Bank in the sum of Four Thousand Four
Hundred and 20/100 Dollars ($4,400.20).
(b) On the fifth annual anniversary of the date hereof, the
interest rate shall be modified to a rate of 2.25% per annum higher than the
weekly average yield on United States Treasury securities adjusted to a constant
maturity of five (5) years, as made available by the Federal Reserve Board for
the week immediately prior to said fifth anniversary, or if such yield is not so
published, a similar rate based on a comparable index chosen by the Bank in its
sole discretion; the interest rate shall be fixed at and accrue on the Principal
Sum or so much there as is outstanding from time to time at such modified rate
until the Maturity Date.
(c) The principal and interest payment shall be readjusted as of
the first day of the second month following the interest rate adjustment in
subparagraph (b) above in order to fully re-amortize the Loan over the months
remaining in the original amortization period of the Loan.
(d) The entire unpaid Principal Sum of the Loan, together with all
accrued and unpaid interest thereon, shall become due and payable on the
Maturity Date,
(e) Interest shall be calculated on the basis of a year consisting
of 360 days for the actual number of days any portion of the principal amount of
the Loan is outstanding. There shall be no negative amortization.
Prepayment
The Mortgagor shall have the option of paying the Loan to the Holder in
advance in full, or in part, at any time and from time to time upon written
notice received by the Holder at least 30 days prior to making such payment;
provided, however, that upon making any payment in full or in part, the
Mortgagor shall pay to the Holder all interest and all other amounts owing
pursuant to this Note and remaining unpaid, and together with any such payment
in full the Mortgagor shall pay to the Holder (a) a premium equal to 5% of the
amount prepaid if paid on or after the date hereof and before October 6, 1999,
(b) a premium equal to 4% of the amount prepaid if paid on or after October 6,
1999, and before October 6, 2000, (c) a premium equal to 3% of the amount
prepaid if paid on or after October 6, 2000, and before October 6, 2001, (d) a
premium equal to 2% of the amount prepaid if paid on or after October 6, 2001,
and before October 6, 2002, (e) a premium equal to 1% of the amount prepaid if
paid on or after October 6, 2002, and before October 6, 2008. In the event the
Maturity Date of this Note is accelerated following a default by the Mortgagor,
any tender of payment of the amount necessary to satisfy the entire indebtedness
made after such default shall be expressly deemed a voluntary payment. In such a
case, to the extent permitted by law, the Holder shall be entitled to the amount
necessary to satisfy the entire indebtedness plus the appropriate prepayment
premium in accordance with the terms of this Note.
Tax Escrow
In the event of any delinquency by Mortgagor in the payment of any
Taxes or installments thereof due on the Premises, and failure to pay in full
and cure said delinquency upon five (5) days notice thereof from Bank to
Mortgagor, then in order to more fully protect the security of the Mortgage, the
Bank, in addition to and without prejudice to its continuing right to demand
immediate payment of any said delinquencies, may at its option require Mortgagor
to deposit with the Mortgagee concurrently with payments of interest and
principal and in addition thereto on each monthly due date as set forth above
after the date hereof until this Note is fully paid, a sum equal to the Taxes
due on the premises (all as estimated annually by the Mortgagee) less all sums
already deposited therefor divided by the number of months to elapse before one
month prior to the date when such Taxes will become due, such sums to be held by
the Mortgagee to pay said items. All payments calculated as aforesaid in the
preceding portion of this paragraph and all payments of principal and interest
shall be added together and the aggregate amount thereof shall be paid by the
Mortgagor each month in a single payment to be applied by the Mortgagor to the
following items in the order set forth: (a) Taxes, (b) late payment charges, (c)
interest; (d) principal. Any deficiency in the amount of such aggregate monthly
payment shall, unless paid prior to the due date of the next such payment,
constitute a default under this mortgage, whereupon at the option of the
Mortgagee the whole of the principal sum and any other sums of money secured by
this Mortgage shall forthwith or thereafter become due and payable. Any excess
funds accumulated under the provisions of this paragraph after the payment of
the items herein mentioned shall be credited to subsequent monthly payments of
the same nature required hereunder; but if any such item shall exceed the
estimate therefor, the Mortgagor shall without demand forthwith pay the
deficiency.
Place of Payment
All payments of principal and interest required to be made hereunder,
and all other sums due hereunder, shall be payable to Mortgagee at 00 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 or at such other office or place as Mortgagee
may designate in writing.
Late Payment Charge
If the Borrower defaults in the making of any payment owing pursuant to
this Note for more than ten (10) days after due, the Borrower shall immediately
pay to the Holder of this Note a late charge equal to Fifty Dollars ($50.00), or
6% of the total of such payment due, whichever is greater.
Events of Default
The payment of this Note is secured by the Mortgage. Upon or at any
time or from time to time after the occurrence or existence of any event or
condition specified in this Note or the Mortgage as an Event of Default and the
passage of any applicable grace period in connection therewith, all amounts
owing pursuant to this Note shall, at the sole option of the Holder and without
any notice, demand, presentment or protest of any kind (each of which is waived
by the Borrower), become immediately due. Without limitation thereto by the
specification thereof, either of the following shall be deemed events of
default:
(i) any transfer of any legal or equitable interest in the Premises or
any portion thereof without the Bank's prior written consent, which may
be withheld in its sole and absolute discretion, except upon written
notice to Mortgagee, transfers between and among the partners of the
Mortgagor and between and among immediate family members of the
Mortgagors, shall be permitted. However, all obligations of Xxxxx X.
Xxxx, Xxxxxx X. X'Xxxxx and Xxxxxx X. X'Xxxxx under the Guarantees and
all other documents, as applicable, will remain in full force and
effect.
(ii) the placement of any other mortgage, security interest, or other
lien or encumbrance on the Premises or any portion thereof without the
Bank's prior written consent, which may be withheld in its sole and
absolute discretion.
Acceptance of payments by the Mortgagee subsequent to any such
conveyance, transfer, or encumbering shall not be deemed a waiver of any of the
Mortgagee's rights.
Post-Maturity Date and Default Rate
On each day subsequent to the Maturity Date or an event of default,
whether by acceleration or otherwise, the Borrower shall pay interest on the
outstanding Principal Sum at a rate per year equal to 3% above the rate
otherwise applicable during the term of the Loan immediately prior to said
Maturity Date or event of default; provided, however, that (i) in no event shall
such interest be payable at a rate in excess of the maximum rate permitted by
applicable law and (ii) solely to the extent necessary to result in such
interest not being payable at a rate in excess of such maximum rate, any amount
that would be treated as part of such interest under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically canceled, and, if received by the Bank, shall be refunded to the
Borrower, it being the intention of the Bank and of the Borrower that such
interest not be payable at a rate in excess of such maximum rate.
Mortgagor To Pay Expenses
The Borrower shall pay to the Holder on demand each cost and expense
(including, but not limited to, the reasonable fees and disbursements of counsel
to the Holder, whether retained for advice, for litigation or for any other
purpose) incurred by the Holder, in endeavoring to (1) collect any amount owing
pursuant to this Note, (2) enforce, or realize upon, any guaranty, endorsement
or other assurance, any collateral or other security or any subordination,
directly or indirectly securing, or otherwise directly or indirectly applicable
to, any such amount or (3) preserve or exercise any right or remedy of the
Holder pursuant to this Note.
Waivers and Consents
To the extent permitted by law, Mortgagor (a) waives and renounces any
and all exemption rights and the benefit of all valuation and appraisal
privileges as against the indebtedness secured by the Mortgage or any renewal or
extension thereof, (b) waives presentment or payment, demand, protest, notice of
protest and notice of dishonor and any and all lack of diligence or delays in
the collection or enforcement of said indebtedness, (c) waives the right to
assert in any foreclosure action any defense based upon or relating to the
failure by Mortgagee to produce and/or introduce into evidence in such action
any of the notes, bonds or other obligations which are secured by the Mortgage
other than this Note and (d) consents to any extension of time, release of any
collateral securing this Note, acceptance of other collateral therefor, or any
other indulgence or forbearance whatsoever. Any such extension, release,
acceptance, indulgence or forbearance may be made, to the extent permitted by
law, without notice to Mortgagor.
Compliance with Usury Requirements
This Note is subject to the express condition that at no time shall
Mortgagor be obligated or required to pay interest on the principal amount of
the Loan at a rate which could subject Mortgagee to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Mortgagor is permitted by law to contract or agree to pay. If by the terms of
this Note Mortgagor would at any time be required or obligated to pay interest
at a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and the interest
payable thereafter shall be computed at a rate not to exceed such maximum rate
and all previous payments in excess of such maximum rate shall be deemed to have
been payments in reduction of the principal balance of the Loan instead of
payments of interest thereon.
Modifications and Amendments
No change, amendment, modification, cancellation or discharge of this
Note, or of any part hereof, shall be valid unless Mortgagee shall have
consented thereto in writing.
Successors and Assigns
The covenants and obligations of this Note shall be binding upon
Mortgagor, its successors and assigns and shall inure to the benefit of
Mortgagee, its successors and assigns and all subsequent holders of the
Mortgage.
Financial Statements
The Borrower shall provide to the Bank a signed federal income tax
return with all schedules attached, satisfactory to the Bank, within 120 days
after the end of each fiscal year of Borrower.
Governing Law
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
Waiver of Trial By Jury
TO THE EXTENT PERMITTED BY LAW, XXXXXXXXX XXXXXX THE RIGHT TO TRIAL BY
JURY IN ANY FORECLOSURE ACTION.
IN WITNESS WHEREOF, Xxxxxxxxx has caused this Note to be duly executed
as of the day and year first above written.
POWDER MILL LAND COMPANY
By: S/ Xxxxx X. Xxxx
_________________
XXXXX X. XXXX
Its General Partner
Locol Properties
By: S/ Xxxxx X. X'Xxxxx
___________________
XXXXX X. X'XXXXX
Its General Partner
MORTGAGE
THIS MORTGAGE, made the 6th day of October, 1998, between POWDER MILL
LAND COMPANY, a New York Limited Liability Company, with its principal office at
00 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000, (herein called the
"Mortgagor"), and FIRST NATIONAL BANK OF ROCHESTER, a national banking
association with its principal office at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000, (herein called the "Mortgagee").
WITNESSETH, to secure the payment of an indebtedness in the sum of Five
Hundred Thirty Thousand and No/100 ($530,000.00) lawful money of the United
States (or so much as may be advanced) to be paid with interest thereon to be
computed from the date hereof, to be paid according to a certain Mortgage Note,
bearing even date herewith ("Note"), together with all refinancings,
modifications, extensions or renewals thereof, the Mortgagor hereby mortgages to
the Mortgagee the premises described in Schedule "A" attached hereto and made a
part hereof (herein called the "Mortgaged Premises" or "Premises").
TOGETHER with all the right, title and interest of the Mortgagor in and
to any and all unearned premiums accrued, accruing or to accrue under any and
all insurance policies now or hereafter obtained by the Mortgagor on the
Mortgaged Premises,
TOGETHER with the appurtenances and all the estate and rights of the
Mortgagor in and to said Xxxxxxxx,
TOGETHER with all and singular the tenements, hereditaments, and
appurtenances belonging or in anyway appertaining to said Premises, and the
reversions, remainder and remainders, rents, issues and profits thereof,
TOGETHER with and including any and all strips and gores of land
adjoining or abutting said Premises,
TOGETHER with all right, title, and interest of the Mortgagor in and to
the land lying in the bed of any street, road, avenue or alley open or proposed,
in front of, running through or adjoining said Premises,
TOGETHER with all buildings, structures, and improvements now or at any
time hereafter erected, constructed or situated upon the Premises, and
apparatus, fixtures, chattels, and articles of personal property now or
hereafter attached to or used in connection with said Premises, including but
not limited to furnaces, boilers, oil boilers, radiators and piping, coal
stokers, plumbing and bathroom fixtures, refrigeration, air conditioning and
sprinkler systems, wash-tubs, sinks, gas and electric fixtures, stoves, ranges,
awnings, screens, window shades, elevators, motors, dynamos, refrigerators,
kitchen cabinets, incinerators, plants and shrubbery and all other equipment and
machinery, appliances, fittings and fixtures of every kind in or used in the
operation of the buildings standing on said Premises, together with any and all
replacements thereof and additions thereto.
TOGETHER with all awards heretofore and hereafter made to the Mortgagor
for taking by eminent domain the whole or any part of said Premises or any
easement therein, including any awards for changes of grade of streets, which
said awards are hereby assigned to the Mortgagee, who is hereby authorized to
collect and receive the proceeds of such awards and to give proper receipts and
acquittances therefor, and to apply the same toward the payment of the mortgage
debt, notwithstanding the fact that the amount owing thereof may not then be due
and payable; and the said Xxxxxxxxx hereby agrees, upon request, to make,
execute and deliver any and all assignments and other instruments sufficient for
the purpose of assigning said awards to the Mortgagee, free, clear, and
discharged of any encumbrances of any kind or nature whatsoever,
The Mortgagor covenants with the Mortgagee that:
PAY INDEBTEDNESS. The Mortgagor will pay the indebtedness secured
hereby with interest thereon as herein provided and according to the Note, and
if default shall be made in the payment of part thereof, the Mortgagee shall
have power to sell the Mortgaged Premises according to law.
INSURANCE. The Mortgagor will keep the buildings on the Premises and
the fixtures and articles of personal property covered by the Mortgage insured
against loss by fire and other hazards, casualties and contingencies, including
flood insurance if required by law, regulation or Mortgagee, for the benefit of
the Mortgagee in an amount not less than the unpaid principal balance due
hereunder. The fire insurance policy as required hereby shall contain the usual
extended coverage endorsement and shall provide for twenty (20) days written
notice to Mortgagee prior to cancellation. In addition thereto the Mortgagor
within thirty (30) days after notice and demand will keep the Premises insured
against war risk and any other hazard that may reasonably be required by law,
regulation or Mortgagee. The Mortgagor will assign and deliver said policies to
the Mortgagee and the Mortgagor will reimburse the Mortgagee for any premiums
paid for the insurance made by the Mortgagee on the Mortgagor's default in so
insuring the buildings or in so assigning and delivering the policies. All the
provisions of this paragraph or of any other provisions of the Mortgage
pertaining to fire insurance or any other additional insurance which may be
required hereunder shall be construed in accordance with Section 254 Subdivision
4 of the New York Real Property Law, but, said section to the contrary
notwithstanding, the Mortgagor consents that the Mortgagee may without
qualification or limitation by virtue of said section, retain and apply the
proceeds of any such insurance in satisfaction or reduction of the Mortgage, or
it may at its election pay the same, either in whole or in part, to the
Mortgagor or his heirs or assigns for the repair or replacement of the buildings
or of the insured articles of personal property or for any other purpose or
object satisfactory to the holder of the Mortgage, and if the Mortgagee shall
receive and retain such insurance money, the lien of the Mortgage shall be
affected only by a reduction of the amount of such lien by the amount of such
insurance money received and retained by the Mortgagee.
ALTERATIONS, DEMOLITION OR REMOVAL. No building, fixtures or personal
property covered by the Mortgage shall be removed, demolished, or substantially
altered without the prior written consent of the Mortgagee except in accordance
with a Building Loan Agreement dated even date herewith.
WASTE, MAINTENANCE AND REPAIRS. The Mortgagor will not commit any waste on
the Premises or make any change in the use of the Premises which will in any way
increase any ordinary fire or other hazard arising out of the construction or
operation. The Mortgagor will keep and maintain or cause to be kept and
maintained all buildings and other improvements now or at any time hereafter
erected upon or constituting any portion of the Mortgaged Premises, and the
sidewalks and curbs abutting the same, in good order and condition and in a
rentable and tenantable state or repair, and will make or cause to be made, as
and when the same shall become necessary, all structural and non-structural
exterior and interior, ordinary and extraordinary, foreseen and unforeseen
repairs, renewals, and replacements necessary to that end. In the event that the
Mortgaged Premises shall be damaged or destroyed in whole or in part, by fire or
any other casualty, or in the event of a taking of a portion of the Mortgaged
Premises as a result of any exercise of the power of eminent domain, the
Mortgagor shall promptly restore, replace, rebuild or alter the same as nearly
as possible to the condition they were in immediately prior to such fire, other
casualty or taking, provided that proceeds of insurance are made available to
Mortgagor, to the extent received by Mortgagee and necessary to such
restoration, replacement, rebuilding or alteration. Although damage to or
destruction of the Mortgaged Premises, or any portion thereof, shall not of
itself constitute a default hereunder, the failure of the Mortgagor to restore,
replace, rebuild, or alter the same, as hereinabove provided, shall constitute a
default hereunder. The Mortgagor covenants that it will give to the Mortgagee
prompt written notice of any damage or injury to the Mortgaged Premises and will
give like notice to the Mortgagee of the commencement of any condemnation
proceeding affecting the whole or any portion of Mortgaged Premises. The
Mortgagor shall have the right, at any time and from time to time, to remove and
dispose of building service equipment which may have become obsolete or unfit
for use or which is no longer useful in the operation of the building now or
hereafter constituting a portion of the Mortgaged Premises. The Mortgagor agrees
promptly to replace with other building service equipment, free or superior
title, liens or claims, not necessarily of the same character but of at least
equal usefulness and quality, any such building service equipment so removed or
disposed of, except that, if by reason of technological or other developments in
the operation and maintenance of buildings of the general character of the
building constituting a portion of the Mortgaged Premises, no replacement of the
building service equipment so removed or disposed of is necessary or desirable
in the proper operation or maintenance of said building, the Mortgagor shall not
be required to replace the same.
TAXES, ASSESSMENTS, ETC. The Mortgagor will pay all taxes, assessments,
insurance premiums, sewer rents, or water rates, and in default thereof, the
Mortgagee may pay the same. Any sums so advanced by the Mortgagee shall bear
interest at the maximum legal rate of interest at the time of such advance or at
the highest rate of interest set forth herein or in the Note, whichever is
greater, and any such sum and the interest thereon shall be a lien on said
Premises, prior to any right, or title to, interest in or claim upon said
Xxxxxxxx, or accruing subsequent to the lien of the Mortgage and shall be deemed
secured hereby. Upon written request from Mortgagee, Xxxxxxxxx shall deliver to
Mortgagee receipted tax bills showing payment of all taxes on the Premises
within the applicable grace period.
ESTOPPEL STATEMENT. The Mortgagor within five (5) days upon request in
person or within ten (10) days upon request by mail will furnish a written
statement duly acknowledged of the amount due on the Mortgage and whether any
offsets or defenses exist against the Note and Mortgage.
MORTGAGEE MAY CURE MORTGAGOR'S DEFAULTS. The Mortgagor covenants and agrees
with the Mortgagee that the holder of the Mortgage may cure any default of
Mortgagor on the Mortgage or any prior or subsequent mortgage, including payment
of any installments of principal and interest or part thereof, and that all
costs and expenses, including reasonable attorneys' fees together with interest
thereon at the highest legal rate of interest at the time of such default or at
the highest rate of interest set forth herein or in the Note secured by the
Mortgage, whichever is the greater, paid by the Mortgagee in so curing said
default, shall be repaid by the Mortgagor to the Mortgagee on demand and the
same shall be deemed to be secured by the Mortgage and to be collectible in like
manner as the principal sum.
WARRANTY OF TITLE. The Mortgagor warrants the title to the Premises and
will execute any further assurance of the title to the Premises as Mortgagee may
require.
LIEN LAW COVENANT. The Mortgagor will, in compliance with Section 13 of the
New York Lien Law, receive the advances secured hereby and will hold the right
to receive such advances as a trust fund to be applied first for the purpose of
paying the cost of improvement and will apply the same first to the payment of
the cost of the improvements before using any part of the total of the same for
any other purpose.
ESCROW FOR TAXES. In the event the Mortgagor is delinquent to any extent on
payments due hereunder to Mortgagee, or in the payment of property taxes and
assessment on the Premises, then the Mortgagee may require that in addition to
the monthly payments of principal and interest, the Mortgagor will pay monthly
to the Mortgagee on or before the first day of each and every calendar month,
until the Note is fully paid, a sum equal to one-twelfth (1/12) of the known or
estimated yearly taxes, assessments, liens and charges levied or to be levied
against the Mortgaged Premises. The Mortgagee may request at such time that the
Mortgagor also escrow for insurance held or required by Mortgagee. The Mortgagee
shall hold such payments in trust without obligation to pay interest thereon,
except such interest as may be made mandatory by law or regulation, to pay such
taxes, assessments, liens, charges and insurance premiums within a reasonable
time after they become due. If the total of payments made by the Mortgagor for
taxes, assessments, liens, charges and insurance premiums shall exceed the
amount of payments actually made by the Mortgagee, such excess shall be credited
by the Mortgagee on subsequent payments to be made by the Mortgagor. If the
total of payments made by the Mortgagor for taxes, assessments, liens, charges
and insurance premiums shall not be sufficient to pay therefor, then the
Mortgagor shall pay to the Mortgagee any amount necessary to make up the
deficiency on or before the date when such amounts shall be due.
LATE CHARGES. If any payment required to be made under the Mortgage or the
Note or the obligations secured by the Mortgage shall be overdue in excess of
ten (10) days, a late charge of Fifty Dollars ($50.00) or $.06 of each $1.00 so
overdue, whichever is larger, will be paid by the Mortgagor for the purpose of
defraying the expenses incident to handling such delinquent payments.
LEASES. Pursuant to the provisions of Section 291-f of the New York Real
Property Law, the Mortgagor shall not accept prepayment of rent or installments
of rent for more than one month in advance, without the written consent of the
Mortgagee and in the event of any default under the terms of this paragraph the
whole of said principal sum shall become due immediately upon the happening
thereof at the option of the Mortgagee.
In addition thereto, the Mortgagor shall furnish to the Mortgagee, within
thirty (30) days after a request by the Mortgagee to do so, a written statement
containing the names of all lessees of the Premises, the terms of their
respective leases, the space occupied and the rentals payable thereunder.
ACCELERATION OF PRINCIPAL ON TRANSFER, ETC. Without the Mortgagee's prior
written consent to such conveyance or transfer, which may be withheld in its
sole and absolute discretion, the principal sum with interest thereon shall
become immediately due and payable in full, upon the legal or equitable,
voluntary or involuntary, conveyance or transfer by operation of law or
otherwise of all or any part of the Mortgaged Premises, or any interest or
estate therein, or any interest in Mortgagor, including testate or intestate
succession and conveyance by land contract, including, without limitation
thereto, any assignment or sublease of any Lease of any portion of the Premises,
each of which must be subordinate to the lien of the Mortgage. Acceptance of
payments by the Mortgagee subsequent to any such conveyance, transfer, or
encumbering shall not be deemed a waiver of any of the Mortgagee's rights.
However, upon written notice to Mortgagee, transfers between and among the
partners of the Mortgagor and between and among immediate family members of the
Mortgagors, shall be permitted. However, all obligations of Xxxxx X. Xxxx,
Xxxxxx X. X'Xxxxx and Xxxxxx X. X'Xxxxx under the Guarantees and all other
documents, as applicable, will remain in full force and effect.
ACCELERATION OF PRINCIPAL ON DEFAULT, ETC. The whole of the principal
sum and interest shall immediately become due and payable in full at the option
of the Mortgagee, after (a) default in the payment of any installment of
principal or of interest for thirty (30) days; or, (b) default in the payment of
any tax, water rate, assessment, insurance premiums, or sewer rent for thirty
(30) days after notice and demand or default after notice and demand either in
assigning and delivering the policies insuring the buildings against any
casualty or in reimbursing the Mortgagee for premiums paid on such insurance, as
herein provided; or (c) default upon request in furnishing a statement of the
amount due and whether any offsets or defenses exist against the mortgage debt,
as herein provided; (d) failure to exhibit to the Mortgagee, within ten (10)
days after demand, receipts showing payment of all taxes, water rates, sewer
rents and assessments; or (e) the actual or threatened alteration, demolition or
removal of any building on the Premises without the written consent of the
Mortgagee; or (f) the assignment of the rents of the Premises or any part
thereof without the written consent of the Mortgagee; or (g) the buildings on
said Premises are not maintained in reasonably good repair; or (h) failure to
comply with any requirement or order or notice of violation of law or ordinance
issued by any governmental department claiming jurisdiction over the Premises
within two (2) months from the issuance thereof; or (i) refusal of two or more
fire insurance companies lawfully doing business in the State of New York to
issue policies insuring the buildings on the Premises; or (j) the removal,
demolition or destruction in whole or in part of any of the fixtures, chattels
or articles of personal property covered hereby, unless the same are promptly
replaced by similar fixtures, chattels and articles of personal property at
least equal in quality and condition to those replaced, free from security
interests or other encumbrances thereon and free from any reservation of title
thereof; or (k) thirty (30) days notice to the Mortgagor, in the event of the
passage of any law deducting from the value of land for the purposes of taxation
any lien thereon, or changing in any way the laws for the taxation of mortgages
or debts secured thereby for state or local purposes; (1) the Mortgagor fails to
keep, observe, and perform any of the other covenants, conditions or agreements
contained in the Mortgage; or (m) use of said Premises for any unlawful purpose
or public or private nuisance; or (n) the Mortgagor commits or permits waste; or
(o) any default under any mortgage or other lien on the Premises or any default
under any other note, loan agreement or other instrument evidencing Mortgagor's
indebtedness to Mortgagee; or (p) the Mortgagor is no longer personally liable
for repayment of the indebtedness secured hereby; or (q) any mortgage, lien or
other encumbrance is placed on the Premises without Mortgagee's prior written
consent.
NOTICES. Notice and demand to or request upon the Mortgagor may be oral or
in writing and, if in writing, may be served in person or by mail.
APPOINTMENT OF RECEIVER. The Mortgagee, in any action to foreclose the
Mortgage, shall be entitled, without notice or demand and without regard to the
adequacy of any security for the indebtedness hereby 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 Mortgaged Premises.
SALE IN ONE PARCEL. In case of a foreclosure sale, said Premises, or so
much thereof as may be affected by the Mortgage, may be sold in one parcel, any
provision of law to the contrary notwithstanding.
ASSIGNMENT OF RENTS. The Mortgagor hereby assigns to the Mortgagee the
rents, issues, and profits of the Premises as further security for the payment
of said indebtedness, and the 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 part thereof, and to apply the rents,
issues and profits, after payment of all necessary charges and expenses, on
account of said indebtedness. This assignment and grant shall continue in effect
until the Mortgage is paid. The Mortgagee hereby waives the right to enter upon
and to take possession of said Premises for the purpose of collecting said
rents, issues, and profits, and the Mortgagor shall be entitled to collect and
receive said rents, issues and profits until default under any of the covenants,
conditions, or agreements contained in the Mortgage, and together with any
applicable notice thereof and opportunity to cure, and Xxxxxxxxx agrees to use
such rents, issues and profits in payment of principal and interest and in
payment of taxes, assessments, sewer rents, water rates, and carrying charges
against said Xxxxxxxx, but such right of the Mortgagor may be revoked by the
Mortgagee upon any default, on five (5) days written notice. The Mortgagor will
not, without the written consent of the Mortgagee, receive or collect rent from
any tenant of said Premises or any part thereof for a period of more than one
month in advance, and in the event of any default under the Mortgage will pay
monthly in advance to the Mortgagee, or to any receiver appointed to collect
said rents, issues and profits, the fair and reasonable rental value for the use
and occupation of said Premises or of such part thereof as may be in the
possession of the Mortgagor, and upon default in any such payment will vacate
and surrender the possession of said Premises to the Mortgagee or to such
receiver, and in default thereof may be evicted by summary proceedings.
SECURITY AGREEMENT. The Mortgage constitutes a security agreement under the
Uniform Commercial Code and creates a security interest in all that property
(and the proceeds thereof) included in the Premises which might otherwise be
deemed "personal property". Mortgagor shall execute, deliver, file and refile
any financing statement, continuation statements, or other security agreements
Mortgagee may require from time to time to confirm the lien for the Mortgage
with respect to such property. Without limiting the foregoing, Xxxxxxxxx hereby
irrevocably appoints Mortgagee and its successors in interest as
attorney-in-fact for Xxxxxxxxx to execute, deliver and file such instruments,
for and on behalf of Xxxxxxxxx.
ANTI-MARSHALLING. The Mortgagee may resort for the payment of any
indebtedness, liability, or obligation secured hereby to its several securities
therefor, in such order and action to foreclose the Mortgage notwithstanding the
pendency of any action to recover any part of the indebtedness secured hereby,
or the recovery of any judgment in such action, nor shall the Mortgagee be
required during the pendency of any action to foreclose the Mortgage, to obtain
leave of any court in order to commence or maintain any other action to recover
any part of the indebtedness secured hereby.
The Mortgagee shall also have the right in the event of default under the
Mortgage or the obligation secured hereby to proceed against any or all
interests of the Mortgagor and the Mortgagor agrees that the Mortgagee shall
have the right to elect in writing not to cut off any interest that any
Mortgagor might have and in the event that Mortgagee shall so elect, Xxxxxxxxx
agrees that all of its duties and obligations as to such interest shall
continue.
COMPLIANCE WITH LAWS, ETC. The Mortgagor will comply with, or cause
compliance with, all present and future laws, ordinances, rules, regulations,
zoning and other requirements of all governmental authorities whatsoever having
jurisdiction of or with respect to the Mortgaged Premises or any portion thereof
or the use or occupation thereof; provided, however, that the Mortgagor may
postpone such compliance if and so long as the validity or legality of any such
governmental requirement shall be contested by the Mortgagor, with diligence and
in good faith, by appropriate legal proceedings.
COMPLIANCE WITH ZONING, ETC. The Mortgagor covenants: (a) that the
buildings and improvements now on the Mortgaged Premises are in full compliance
with all applicable zoning codes, ordinances and regulations and deed
restrictions, if any; and (b) that such compliance is based solely upon
Mortgagor's ownership of such Premises, and not upon title to or interest in any
other Premises; and (c) buildings or improvements hereafter constructed on such
Premises shall be in compliance as in (a) and (b) above, shall lie wholly within
the boundaries of such Premises, and shall be independent and self-contained
operating units (except for utility lines and conduits coming directly to the
Premises from a public road).
LEGAL EXPENSES. If any action or proceeding be commenced (except an action
to foreclose the Mortgage or to collect the debt secured thereby), to which
action or proceeding the Mortgagee is made a party, or in which it becomes
necessary to defend or uphold the lien of the Mortgage, all sums paid by the
Mortgagee for the expense of any litigation to prosecute or defend the rights
and lien created by the Mortgage (including counsel fees), shall be paid by the
Mortgagor, together with interest thereon at the legal rate of interest at the
time of said payment or at the highest rate of interest set forth herein or in
the Note secured by the Mortgage, whichever is greater, and any such sum and
interest thereon shall be a lien on said Premises, prior to any right, or title
to, interest in or claim upon said Premises attaching or accruing subsequent to
the lien of the Mortgage, and shall be deemed to be secured by the Mortgage.
If the Mortgage is referred to attorneys for collection or foreclosure, the
Mortgagor shall pay all sums, including attorneys' fees, incurred by the
Mortgagee, together with all statutory costs, disbursements, and allowances,
with or without the institution of an action or proceeding. All such sums with
interest thereon at the rate set forth herein shall be deemed to be secured by
Mortgage and collectible out of the Mortgaged Premises.
INTEREST ON CONDEMNATION AWARD. In the event of condemnation, or taking by
eminent domain, 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 entire unpaid principal sum at the rate herein provided;
the Mortgagor does hereby assign to the Mortgagee so much of the balance of the
award payable by the condemning authority as is required to pay such total
interest.
INTEREST IN THE EVENT OF DEFAULT. If default be made in the payment of the
said indebtedness when due, pursuant to the terms hereof, the Mortgagee shall be
entitled to receive interest on the entire unpaid principal sum at the legal
rate of interest at the time of such default or at the highest rate of interest
set forth herein or in the Note secured by the Mortgage, whichever is the
greater, to be computed from the due date and until the actual receipt and
collection of the entire indebtedness. This charge shall be added to and shall
be deemed secured by the Mortgage. The within clause, however, shall not be
construed as an agreement or privilege to extend the Mortgage, nor as a waiver
of any other right or remedy accruing to the Mortgagee by reason of any such
default.
NO SECONDARY FINANCING. The Mortgagor will not, without the Mortgagee's
prior written consent, mortgage (including the so-called "wrap-around
mortgage"), pledge, assign, grant a security interest in, cause any lien or
encumbrance to attach to or any levy to be made on the Mortgaged Premises except
for (a) taxes and assessments not yet delinquent and (b) any mortgage, pledge,
security interest, assignment or other encumbrance to the Mortgagee.
BANKRUPTCY. Upon the making of an assignment for the benefit of creditors
by, or upon the filing of a petition in bankruptcy by or against the Mortgagor,
or any person or corporation who is the guarantor hereof or whose indebtedness
is secured hereby, or upon the application for the appointment of a receiver of
the property of the Mortgagor or any such person or corporation, or of the
property of any person or corporation which may become and be owner of the
Mortgaged Premises, or upon any act of insolvency or bankruptcy of the Mortgagor
or any such person or corporation or of any such subsequent owner, or upon the
legal incapacity of the Mortgagor or any such person or corporation or owner, or
any of them, the whole of said indebtedness of every kind or nature held by the
Mortgagee and now or hereafter secured hereby shall immediately become due and
payable with interest thereon, and Mortgagor and any guarantor(s) hereby waive
presentment, demand of payment, protest, notice of non-payment, and/or protest
of any instrument on which the Mortgagor or such guarantors are or may become
liable now or hereafter secured hereby, and the Mortgagor expressly agrees that
the Mortgagee may release or extend the time of any party liable on any such
obligation without notice and without affecting his obligation thereon or under
this instrument.
LIENS. The Premises shall be kept free and clear from any liens and/or
encumbrances of any type and description, except as provided herein. Upon the
recording of any lien or encumbrance, and the same not having been cleared or
bonded of record within thirty (30) days after filing thereof, the entire debt
secured hereby shall immediately become due and payable.
RIGHT TO INSPECT. The Mortgagee and any persons authorized by Mortgagee
shall have the right to enter and inspect the Mortgaged Premises at all
reasonable times during usual business hours.
WAIVER. No waiver by the Mortgagee of the breach of any of the covenants
contained in the Note, the Mortgage, or other loan document, or failure of the
Mortgagee to exercise any option given to it, shall be deemed to be a waiver of
any other breach of the same or any other covenant, or of its rights thereafter
to exercise any such option.
MODIFICATION. No change, amendment, modification, cancellation or discharge
hereof, or any part hereof, shall be valid unless in writing and signed by the
parties hereto or their respective successors and assigns.
COVENANTS SHALL RUN WITH THE LAND, ETC. The covenants contained in the
Mortgage shall run with the land and bind the Mortgagor, the heirs, personal
representatives, successors and assigns of the Mortgagor and all subsequent
owners, encumbrances, tenants and subtenants of the Premises , and shall enure
to the benefit of the Mortgagee, the personal representatives, successors and
assigns of the Mortgagee and all subsequent holders of the Mortgage.
ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
1. Xxxxxxxxx makes the following representations and warranties to the best
of its knowledge, which shall survive the closing of this loan:
A. Mortgagor is in compliance in all respects with all applicable
federal, state and local laws, including, without limitation, those relating to
toxic and hazardous substances and other environmental matters.
B. No portion of the Premises is being used or has been used at any
previous time, for the disposal, storage, treatment, processing or other
handling of any hazardous or toxic substances.
2. Xxxxxxxxx agrees that Mortgagee or its agents or representatives may, at
Xxxxxxxxx's expense, inspect Xxxxxxxxx's books and records and inspect and
conduct any tests on the property including taking soil samples in order to
determine whether Mortgagor is in continuing compliance with all environmental
laws and regulations.
3. If any environmental contamination is found on the property for which
any removal or remedial action is required pursuant to law, ordinance, order,
rule, regulation or governmental action, Xxxxxxxxx agrees that it will at its
sole cost and expense remove or take such remedial action promptly and to
Mortgagee's satisfaction.
4. Xxxxxxxxx agrees to defend, indemnify and hold harmless Mortgagee, its
employees, agents, officers and directors from and against any claims, actions,
demands, penalties, fines, liabilities, settlements, damages, costs or expenses
(including, without limitation, attorney and consultant fees, investigation and
laboratory fees, court costs and litigation expenses) of whatever kind or nature
known or unknown, contingent or otherwise arising out of or in any way related
to:
A. The past or present disposal, release or threatened release of
any hazardous or toxic substances on the Premises;
B. Any personal injury (including wrongful death or property damage,
real or personal) arising out of or related to such hazardous or toxic
substances;
C. Any lawsuit brought or threatened, settlement reached or
governmental order given relating to such hazardous or toxic substances; and/or
D. Any violation of any law, order, regulation, requirement, or
demand of any government authority or any policies or requirements of Mortgagee,
which are based upon or in any way related to such hazardous or toxic
substances.
5. Mortgagor knows of no on-site or off-site locations where hazardous or
toxic substances from the operation of the facility on the Premises have been
stored, treated, recycled or disposed of.
6. Xxxxxxxxx agrees that it will conduct no excavations at the Premises
unless it gives Mortgagee ten (10) days' notice of its intention to do so.
Xxxxxxxxx further agrees that it will not commence such excavation until
Mortgagee has had the opportunity to sample and test at the excavation location
if Mortgagee so desires. Should the testing results disclose the presence of
hazardous or toxic substances which require removal and/or remedy under any
environmental laws or regulations, the suspension of excavation activity at such
location shall continue until the hazardous or toxic substances are removed
and/or remedy conducted pursuant to this paragraph.
7. Unless waived in writing by Mortgagee, the breach of any of the
covenants and warranties contained in this section shall be an event of default
under the Mortgage.
8. For purposes of this section, "hazardous and toxic substances" includes,
without limit, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances or related materials
defined in the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, the Hazardous Materials Transportation Act, as amended,
the New York State Environmental Conservation Law, the Resource Conservation and
Recovery Act, as amended, and in the regulations adopted and publications
promulgated pursuant thereto. The provisions of this section shall be in
addition to any other obligations and liabilities Mortgagor may have to
Mortgagee at common law, and shall survive the transactions contemplated herein.
Mortgagee may, at its option, require Mortgagor to carry adequate insurance to
fulfill Mortgagor's obligations under this paragraph. Xxxxxxxxx's failure to
obtain insurance within thirty (30) days after being requested to do so by
Mortgagee, shall constitute an event or default hereunder.
9. When the terms and provisions contained in the foregoing Paragraphs 1-8
in any way conflict with the terms and provisions contained in a certain
Environmental Compliance and Indemnification Agreement of even date herewith
("Indemnification Agreement"), the terms and provisions of Indemnification
Agreement contained shall prevail, and, in the event of any overlapping terms,
covenants and conditions, insofar as possible, the terms, covenants and
conditions contained herein and in the Indemnification Agreement shall both be
applicable.
TAX ON NOTE. In the event that hereafter it is claimed by any governmental
agency that any tax or other governmental charge or imposition is due, unpaid
and payable by the Mortgagor or the Mortgagee upon the Note (other than a tax on
the interest receivable by the Mortgagee thereunder), the Mortgagor will upon
sixty (60) days prior written notice either (a) pay such tax and within a
reasonable time thereafter deliver to the Mortgagee satisfactory proof of
payment thereof or (b) deposit with the Mortgagee the amount of such claimed
tax, together with interest and penalties thereon, pending an application for a
review of the claim for such tax, and with a reasonable time, deliver to the
Mortgagee either (i) evidence satisfactory to the Mortgagee that such claim of
taxability has been withdrawn or defeated in which event any such deposit shall
be returned to the Mortgagor or (ii) a direction from the Mortgagor to the
Mortgagee to pay the same out of the deposit above mentioned, any excess due
over the amount of said deposit to be paid by the Mortgagor directly to the
taxing authority and any excess of such deposit over such payment by the
Mortgagee to be returned to the Mortgagor. Upon the failure of the Mortgagor to
comply with the provisions of this Article, the whole of said principal sum and
interest secured by the Mortgage shall at the option of the Mortgagee become due
and payable. If liability for such tax is asserted against the Mortgagee, the
Mortgagee will give to the Mortgagor prompt notice of such claim, and the
Mortgagor, upon complying with the provisions of this Article, shall have full
right and authority to consent such claim of taxability.
CONSTRUCTION. The word "Mortgagor" shall be construed as if it read
"Mortgagors" and the word "Mortgagee" shall be construed as if it read
"Mortgagees" whenever the sense of the Mortgage so requires. This Mortgage shall
be governed by and construed in accordance with the laws of the State of New
York.
BUILDING LOAN. The Mortgagor will cause the improvements to be constructed
in accordance with the terms of the Building Loan Agreement of even date
herewith, will proceed with such construction with due diligence and will comply
with the covenants made by it in the Building Loan Agreement, all of which are
incorporated herein by reference.
CONFLICT WITH OTHER LOAN AGREEMENTS. Xxxxxxxxx represents and warrants to
Mortgagee that the execution and delivery of this Mortgage and all related
documents and the performance of any term, covenant, or condition herein
provided in any agreement or instrument executed in connection therewith, are
not in conflict with, or result in any reach of, or constitute a default under
or violate:
A. Any of the terms, conditions, or provisions of any agreement, lease
or other instrument to which Mortgagor is a party or subject to; or,
B. Any Law, regulation, order, writ, injunction or decree of which
Mortgagor is subject or any rules of regulations of any administrative agency
having jurisdiction over Mortgagor or over any property of Mortgagor that would
have a material adverse affect on Mortgagor's business or financial condition.
SEVERABILITY. In the event any one or more of the provisions of the
Mortgage or the Note shall for any reason be invalid, illegal or unenforceable
in whole or in part, then only such provision or provisions shall be deemed to
be null and void and of no force or effect, but shall not affect any other
provision of the Mortgage or the Note.
MARGINAL NOTES OR CAPTIONS. The marginal notes or captions herein are
inserted only as a matter of convenience and for reference and are not and shall
not be deemed to be any part of the Mortgage.
IN WITNESS WHEREOF, the Mortgage has been duly executed by the Mortgagor,
the day and year first above written.
POWDER MILL LAND COMPANY
By: S/ Xxxxx X. Xxxx
________________
XXXXX X. XXXX
Its General Partner
Locol Properties
By: S/ Xxxxx X. X'Xxxxx
___________________
XXXXX X. X'XXXXX
Its General Partner
CONTINUING UNLIMITED GUARANTY
In consideration of any extension of credit by FIRST NATIONAL BANK OF
ROCHESTER, (hereinafter called "Bank") to POWDER MILL LAND COMPANY (hereinafter
called "Customer"), either alone or with one or more persons or any extension or
renewal of any or all of the indebtedness hereinafter mentioned, or forbearance
of demand or suit or agreement for such forbearance or cancellation of any
existing guaranty or other valuable consideration, the undersigned (referred to
hereinafter as such or as "Guarantors") do hereby guarantee, jointly and
severally, the full and prompt payment to Bank, when due, whether accelerated or
not, of any and all indebtedness, liabilities and obligations of every nature
and kind, whether heretofore or hereafter arising of Customer to Bank,
including, but not limited to, the indebtedness represented by the Mortgage Note
of Customer to Bank in the amount of Five Hundred Thirty Thousand and No/100
Dollars ($530,000.00) of even date herewith, all of which is referred to herein
as the "Indebtedness".
1. The undersigned further agree to pay all costs, expenses and
attorney's fees at any time paid or incurred by the Bank in endeavoring to
collect the Indebtedness or any part thereof and in and about the enforcement of
this instrument.
2. This instrument is and is intended to be a continuing guaranty for
the Indebtedness (irrespective of the aggregate amount thereof, or changes in
the same from time to time, and whether or not the same exceeds the amount of
this guaranty), independent of and in addition to any other guaranty,
endorsement or security held by Bank therefor, and without right of subrogation
on the part of the undersigned until the Indebtedness is paid in full. The
undersigned acknowledge that this guaranty does not modify or terminate any
previous guaranties executed and delivered to Bank by the undersigned or any of
them, which guaranties, if any, remain in full force and effect. This guaranty
shall remain in full force and effect until (i) the Bank or its successors or
assigns shall actually receive signed, written notice of its discontinuance or
notice of the death of the undersigned, and (ii) all of the Indebtedness
contracted for or created before the receiving of such notice, and any
extensions or renewals thereof whether made before or after the receipt of such
notice, together with interest accrued thereon, shall be paid in full. In the
event of the discontinuance of this guaranty as to any of the undersigned
because of receipt by the Bank of notice of death or notice of discontinuance,
this guaranty shall, notwithstanding, still continue and remain in full force
against the other signatories until discontinued as to them in the same manner.
In the event all of the Indebtedness shall at any time, or from time to time, be
satisfied, this guaranty shall, nevertheless, continue in full force and effect
as to any such Indebtedness contracted for or incurred thereafter, from time to
time, before receipt by Bank of written notice of discontinuance or written
notice of death of the undersigned.
3. If any default shall be made in the payment of any or all of the
Indebtedness, the undersigned hereby agree to pay the same without requiring
protest or notice of non-payment or notice of default to the undersigned, to the
Customer, or to any other person, without proof of demand and without requiring
the Bank to resort first to the Customer or to any other guaranty, security or
collateral which it may have or hold. The undersigned hereby waive demands of
protest and notice of non-payment and protest to the undersigned, to the
Customer, or to any other person; notice of acceptance hereof or assent hereto
by Bank; and notice that any Indebtedness has been incurred by the Customer to
Bank; and notice of any change whatsoever in any terms of any of the
Indebtedness, whether of payment or otherwise, including but not limited to a
change in the interest rate or maturity on any or all of the Indebtedness.
4. Upon default being made in the payment of any of the Indebtedness,
the undersigned authorize and empower the Bank, in addition to its other
remedies, to charge any account of the undersigned, and if the undersigned be
more than one person, any account of any or all of the undersigned, with the
full amount then due on this guaranty and to sell, at any broker's board or at a
public or private sale (with such notice, if any, required under the Uniform
Commercial Code) any property of the undersigned in the possession or custody of
the Bank and to apply the proceeds thereof to any balance due on this guaranty.
Upon any such sale the Bank may itself purchase the whole or any part of any
property sold free from any right of redemption, which is expressly waived and
released.
5. The undersigned also further agree that the Bank shall have the
irrevocable right, in its sole discretion, with or without notice to the
undersigned in its sole discretion, either before or after the institution of
bankruptcy or other legal proceedings by or against the undersigned or any of
them, or before or after receipt of written notice of the death of the
undersigned or any of them, or written notice from any of the undersigned of
discontinuance of liability of any of the undersigned hereunder, to extend the
time given for the payment of the Indebtedness or any part thereof. Bank may
accept one or more renewal notes for the Indebtedness which shall be considered
not as new obligations but as extensions of the obligation renewed, and no such
extensions shall discharge or in any manner affect the liability of the
undersigned, or the liability of the estate or estates of any of the undersigned
under this guaranty.
6. The liability of the undersigned hereunder shall not be affected or
impaired by any acceptance by the Bank of security for payment of the
Indebtedness, or any part thereof, or by any disposition of, or failure, neglect
or omission on the part of the Bank to realize upon any such security or any
security at any time held by or left with the Bank for any or all of the
Indebtedness, or upon which a lien may exist therefor, which security may be
exchanged, withdrawn or surrendered from time to time or otherwise dealt with by
the Bank without notice to or assent from the undersigned, to the same extent as
though this guaranty had not been given. Bank shall have the exclusive right to
determine how, when and what application of payments and credits, if any, shall
be made on the Indebtedness, or any part thereof, and may apply the same upon
principal or interest or fees or expenses as it sees fit. The undersigned hereby
agree and consent that the Bank shall have the right to make any agreement with
the Customer or with any party to or anyone liable for the payment of all or any
of the Indebtedness or interest thereon, for the compounding, compromise,
payment, settlement, refinance, renewal, extension, discharge or release
thereof, in whole or in part, for any modification or alteration of any of the
terms thereof, including but not limited to, a change in interest rate, or of
any contract between the Bank and the Customer or any other party without notice
to or assent from the undersigned. The Bank shall also have the right to
discharge or release without notice one or more of the undersigned from any
obligation hereunder, in whole or in part, without in any way releasing,
impairing or affecting its rights against the other or others of the
undersigned.
7. This guaranty is absolute and unconditional and shall not be
affected by any act or thing whatsoever, except payment in full of the
Indebtedness hereby secured, except as further set forth in Paragraph "14"
hereinbelow. This is a guaranty of payment and not collection. The failure of
any other person to sign this guaranty shall not release or affect the liability
of any signer hereof. This guaranty has been unconditionally delivered to Bank
by each of the persons who have signed it.
8. If a claim is made upon Bank at any time for repayment or recovery
of any amount of the Indebtedness, or other value received by Bank from any
source, in payment of or on account of any of the Indebtedness, and Bank repays
or otherwise becomes liable for all or any part of such claim by reason of (a)
any judgment, decree, or order of any court or administrative body, or (b) any
settlement or compromise of such claim or claims, the undersigned shall remain
liable to Bank hereunder for the amount so repaid or for which Bank is otherwise
liable, to the same extent as if any such amounts had not been received by Bank,
notwithstanding any return or destruction of the original of this guaranty, or
termination hereof or cancellation of any note, bond or other obligation which
evidences all or a portion of the Indebtedness.
9. The undersigned unconditionally agree that they will not assert,
and do hereby waive any right they may have against Customer for indemnity,
subrogation, reimbursement and contribution, until the Indebtedness is paid in
full.
10. This document is the final expression of this guaranty of the
undersigned in favor of Bank, and is the complete and exclusive statement of the
terms of this guaranty. No course of prior dealings between the undersigned and
Bank, nor any usage of trade, nor any parol or extrinsic evidence of any nature
or kind, shall be used or be relevant to supplement, explain or modify this
guaranty.
11. All payments of principal or interest made on the Indebtedness by
the Customer to the Bank shall be deemed to have been made as agent for the
undersigned for the purpose of tolling or renewing the Statute of Limitations.
12. This guaranty and every part hereof shall be binding upon the
undersigned and the heirs, legal representatives, successors and assigns of the
undersigned, and shall inure to the benefit of the Bank, its successors and
assigns.
13. The undersigned shall provide Bank with a signed current personal
financial statement on a Bank form, together with a signed complete copy of the
guarantor's federal income tax return (with all schedules attached) on or before
April 15th of each year. A financial statement prepared by an accountant is
acceptable if attached to Bank's form, with all questions answered on the Bank
form and the Bank form signed.
14. This guaranty shall be limited in amount to Two Hundred Thirty
Five Thousand and No/100 Dollars ($235,000.00) of the principal amount of the
Indebtedness, plus and together with all accrued and unpaid interest, premiums
and expenses incurred with respect to the Indebtedness and all costs and
expenses and fees, including reasonable attorney fees, incurred by the Bank with
respect to this guaranty.
15. This instrument cannot be changed or modified or discharged in
whole or in part, orally, and shall be governed by New York law. Any litigation
involving this guaranty shall, at Bank's option, be tried only in a court of
competent jurisdiction located in Monroe County, New York.
IN WITNESS WHEREOF the undersigned have signed and sealed this
instrument at Rochester, New York this 6th day of October, 1998.
S/Xxxxx X. Xxxx
_________________
XXXXX X. XXXX
