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MORTGAGE AND SECURITY AGREEMENT
by
SUPREMA SPECIALTIES, INC.
as Mortgagor
to
FLEET BANK, N.A.,
as agent
Dated: December 16, 1998
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Record and Return to: Windels, Marx, Davies & Ives
000 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
MORTGAGE
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage"), is made this 16th
day of December, 1998,
BY
SUPREMA SPECIALTIES, INC., a corporation duly organized, validly existing and in
good standing under the laws of the State of New York, having its principal
office at 000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000-0000 (the
"Mortgagor"),
TO
FLEET BANK, N.A., a national banking association duly organized and validly
existing under the laws of the United States of America, having its principal
office located at 000 Xxxxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxxxx 00000, as agent under
that certain Loan Agreement hereinafter referred to (the "Mortgagee").
W I T N E S S E T H:
WHEREAS, pursuant to a certain Second Amended and Restated Revolving Loan,
Guaranty and Security Agreement dated as of the date hereof among the Mortgagor,
Suprema Specialties West, Inc., Suprema Specialties Northeast, Inc. (Suprema
Specialties West, Inc. and Suprema Specialties Northeast, Inc. are collectively
referred to herein as the "Guarantors"), the Mortgagee and the banks signatory
thereto (the "Banks") (the Second Amended and Restated Revolving Loan, Guaranty
and Security Agreement as same may hereafter, be modified, amended or restated,
is hereinafter referred to as the "Loan Agreement"), the Banks have severally
agreed to make loans to the Mortgagor in the aggregate principal amount of up to
$35,000,000 (the "Loans"), as evidenced by certain Secured Revolving Notes dated
the date hereof made by the Mortgagor in favor of the Banks (the "Notes"); and
WHEREAS, this Mortgage is given and made by the Mortgagor to the Mortgagee
as security for (i) the Loans evidenced by the Notes, (ii) the performance of
the terms, conditions and covenants of the Mortgagor set forth in the Notes, the
Loan Agreement, this Mortgage and the other loan documents executed in
connection therewith (hereinafter collectively referred to as the "Loan
Documents"), and (iii) the payment of all other indebtedness, monetary
obligations, liabilities and duties of any kind of the Mortgagor, direct or
indirect, absolute or contingent, joint or several, due or not due, liquidated
or not liquidated, arising under the Notes, the Loan Agreement, this Mortgage,
and the other Loan Documents.
NOW, THEREFORE, in order to induce the Mortgagee to make the Loans to the
Mortgagor and to secure the payment of the
indebtedness of the Mortgagor to the Mortgagee evidenced by the Notes made by
the Mortgagor to the order of the Banks and to secure the performance by the
Mortgagor of all of its other obligations and covenants pursuant to the Notes,
the Loan Agreement and the other Loan Documents, and to assure payment of all
other indebtedness, monetary obligations, liabilities and duties of any kind of
the Mortgagor, direct or indirect, absolute or contingent, joint or several, due
or not due, liquidated or not liquidated, arising under the Notes, the Loan
Agreement, this Mortgage, and the other Loan Documents, the Mortgagor has
mortgaged, given, granted, released, assigned, transferred and set over unto the
Mortgagee, and by these presents does hereby mortgage, give, grant, release,
assign, transfer and set over unto the Mortgagee, its successors and assigns
forever, the following described property and rights:
ALL those certain lots, pieces or parcels of land and premises situate,
lying and being in the City of Paterson, County of Passaic, and State of New
Jersey, as more particularly described on SCHEDULE "A" attached hereto and made
a part hereof (the "Premises"); and
TOGETHER with all buildings, structures, and improvements of every nature
whatsoever now or hereafter situated on the Premises (the "Improvements"); and
TOGETHER with all and singular the tenements, hereditaments, rights-of-way,
privileges, liberties, easements, riparian rights, woods, waters, watercourses,
mineral, oil and lights and appurtenances thereunto belonging, or in any wise
appertaining, and the reversion and reversions and remainders, rents, income,
issues and profits thereof; and
TOGETHER with all right, title and interest of the Mortgagor, now owned or
hereafter acquired, in and to any streets, the land lying in the bed of any
streets, roads or avenues, opened or proposed, in front of, adjoining or
abutting the Premises to the center line thereof, and all strips and gores
within or adjoining the Premises, easements and rights-of-way, public or
private, all sidewalks and alleys, now or hereafter used in connection with the
Premises or abutting the Premises; and
TOGETHER with all furniture, fixtures, equipment and other articles of
personal property owned by the Mortgagor and now or hereafter attached to or
used in connection with, or with the operation of, any improvements located on
the Premises, as to which this Mortgage constitutes a security agreement under
the New Jersey Uniform Commercial Code (in addition to and not in lieu of any
other security agreement between the parties), including, without limitation,
all building supplies and materials, furniture, fixtures and equipment; all
furnaces, motors, dynamos, incinerators, machinery, generators, partitions,
elevators, steam
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and hot water boilers, heating, air conditioning equipment, wall cabinets,
lighting and power plants, coal and oil burning apparatus, pipes, plumbing,
radiators, sinks, bath tubs, water closets, refrigerators, gas and electrical
fixtures, stoves, ranges, shades, screens, blinds, washing machines, clothes
dryers, dishwashers, freezers, awnings, vacuum cleaning systems, sprinkler
systems or other fire prevention or extinguishing apparatus and materials,
including all accessories, additions, substitutions and replacements thereof,
and all cash and non-cash proceeds thereof, all of which shall be deemed to be
and remain and form a part of the Premises and are covered by the lien of this
Mortgage. If the lien of this Mortgage shall be subject to a conditional xxxx of
sale, chattel mortgage, or other security interest covering any such property,
then all the right, title and interest of the Mortgagor in and to such property,
together with the benefits of any deposits or payments now or hereafter made
thereon, are and shall be covered by the lien of this Mortgage; and
TOGETHER with any and all awards, damages, payments and other compensation,
and any and all claims therefor and rights thereto, which may result from taking
or injury by virtue of the exercise of the power of eminent domain, or any
damage, improvements, injury or destruction in any manner caused to the Premises
or thereon, or any part thereof; and
TOGETHER with all the estate, right, title, interest, property, possession,
claim and demand whatsoever of the Mortgagor, as well in law as in equity, of,
in and to the same and every part and parcel thereof with the appurtenances
(hereinafter the Premises and all the Improvements, rights, interests and
benefits that go with it as described above shall be collectively referred to as
the "Mortgaged Premises").
TO HAVE AND TO HOLD the above-granted Mortgaged Premises unto the
Mortgagee, its successors and assigns, to its and their own proper use, benefit
and behoof forever.
PROVIDED THAT if the Mortgagor shall well and truly pay, or there shall
otherwise be paid to the Mortgagee, the indebtedness evidenced by the Notes
secured hereby at the time and in the manner provided in the Notes and/or this
Mortgage, and the Mortgagor shall well and truly abide by and comply with each
and every covenant and condition set forth in this Mortgage, the Notes and the
other Loan Documents, then these presents and the lien and interest hereby
transferred and assigned shall cease, terminate and be void. The Mortgagee shall
release the Mortgaged Premises and renounce any other rights granted to it
herein, and shall execute at the request of the Mortgagor a release of this
Mortgage and any other instrument to that effect deemed necessary or desirable,
upon payment and performance being made on the indebtedness and covenants
secured hereby.
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This is a Second Mortgage subject and subordinate to that certain Mortgage
dated March 29, 1996 which was recorded in the Office of the Register of Passaic
County on April 17, 1996, in Volume 159, Page 053, et seq., as amended and
modified.
ARTICLE I. THE MORTGAGOR REPRESENTS, WARRANTS, COVENANTS AND AGREES WITH
THE MORTGAGEE AS FOLLOWS:
Section 1. Definitions. In this Mortgage, all words and terms not defined
herein shall have the respective meanings and be construed herein as provided in
the Notes. Any reference to a provision of the Notes shall be deemed to
incorporate that provision as a part hereof in the same manner and with the same
effect as if the same were fully set forth herein.
Section 2. Interpretation and Construction. The provisions of the Notes and
the Loan Agreement shall be applied to this Mortgage in the same manner as
applied therein.
Section 3. Beneficiaries. Nothing herein expressed or implied is intended
or shall be construed to confer upon, or to give to, any person other than the
Mortgagor and the Mortgagee any right, remedy or claim under or by reason
hereof. All covenants, stipulations and agreements herein contained by and on
behalf of the Mortgagor shall be for the sole and exclusive benefit of the
Mortgagee.
Section 4. Indebtedness. The Mortgagor shall pay the indebtedness evidenced
by the Notes and the Loan Agreement and secured by this Mortgage at the time and
in the manner provided for the payment of the same in the Notes and the Loan
Agreement.
Section 5. No Credit for Taxes Paid. The Mortgagor shall not be entitled to
any credit against payments due hereunder by reason of the payment of any taxes,
assessments, water or sewer rent or other governmental charges levied inst the
Mortgaged Premises.
Section 6. Seisin and Warranty. The Mortgagor is seized of an indefeasible
estate in fee simple in the Mortgaged Premises, and Mortgagor warrants the title
to the Mortgaged Premises, subject to those title exceptions set forth in title
commitment no. 96-LT-0016 issued by Xxxxxxx Title Guaranty Company, as continued
through the date hereof. The Mortgagor hereby covenants that the Mortgagor shall
(i) preserve such title and the validity and priority of the lien of this
Mortgage and shall forever warrant and defend the same to the Mortgagee against
all lawful claims whatsoever and the claims of all persons or entities
(hereinafter collectively referred to as "Persons") whomsoever claiming or
threatening to claim the same or any part thereof, and (ii) make, execute,
acknowledge and deliver all such further or
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other deeds, documents, instruments or assurances, and cause to be done all such
further acts and things as may at any time hereafter be reasonably required by
the Mortgagee to fully protect the lien of this Mortgage.
Section 7. Insurance. (i) The Mortgagor shall obtain, or cause to be
obtained, and shall maintain or cause to be maintained, at all times throughout
the term of this Mortgage, insurance on the Mortgaged Premises in such manner
and against such loss, damage and liability, including liability to third
parties, as is customary with Persons operating properties similar to the
Mortgaged Premises and in the same or similar business and located in the same
or similar areas. Such insurance shall include, without limitation, the
following:
(a) Commercial general liability insurance (including garage liability,
innkeeper's liability, products liability and elevator liability, if applicable)
insuring against any and all liability of the Mortgagor or claims of liability
of Mortgagor arising out of, occasioned by or resulting from any accident or
otherwise resulting in or about the Mortgaged Premises and the adjoining
streets, sidewalks and passageways, including XCU, blanket contractual liability
and completed operations coverage, in such amounts as are usually carried by
Persons operating properties similar to the Mortgaged Premises, but in any event
with a combined single limit of not less than $1,000,000.00 for personal injury
and property damage with respect to any one occurrence, which amount shall be
increased from time to time to reflect what a reasonably prudent Person
operating property similar to the Mortgaged Premises would carry, together with
excess/umbrella liability insurance on a "follow form" basis with minimum limits
of $10,000,000.00;
(b) Loss or damage by perils customarily included under standard "all risk"
policies, including business interruption and rental insurance if applicable,
covering all perils and contingencies as may be required by the Mortgagee,
including a so-called "agreed amount" replacement cost endorsement insuring one
hundred percent (100%) of the replacement cost of the Improvements;
(c) For any period during which construction is being performed on the
Mortgaged Premises, "Builder's All-Risk" coverage policy of fire and hazard
insurance (completed value form) with respect to the Mortgaged Premises,
including vandalism and malicious mischief, which insurance policy shall contain
a replacement cost endorsement;
(d) If the Mortgaged Premises are required to be insured pursuant to the
Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of
1968, and the regulations
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promulgated thereunder, because it is located in an area which has been
identified by the Secretary of Housing and Urban Development as a Flood Hazard
Area, then a flood insurance policy covering the Mortgaged Premises in an amount
not less than the outstanding principal balance of the Notes, or the maximum
limit of coverage available, whichever amount is less;
(e) Boiler and machinery insurance covering pressure vessels, air tanks,
boilers, machinery, pressure piping, heating, air conditioning and elevator
equipment, provided that the Mortgaged Premises contains equipment of such
nature.
(ii) Each insurance policy required under this Section 7 shall be written
by insurance companies authorized or licensed to do business in the State of New
Jersey having an Xxxxxx X. Best Company, Inc. rating of A or higher and a
financial size category of not less than XII, and shall be on such forms and
written by such companies as shall be reasonably approved by the Mortgagee. Such
insurance coverage may be effected under overall blanket or excess coverage
policies of the Mortgagor, except as to public liability insurance which may be
effected under combined single limit.
(iii) Each insurance policy required under this Section 7 providing
insurance against loss or damage to property shall be written or endorsed so as
to (a) contain a standard mortgagee or secured party endorsement, as the case
may be, or its equivalent, (b) make all losses payable directly to the
Mortgagee, without contribution, and (c) provide for deductibles reasonably
satisfactory to the Mortgagee.
(iv) Each insurance policy required under this Section 7 and providing
public liability coverage shall be written and endorsed so as to name the
Mortgagee as an additional insured, as its interest may appear.
(v) Each insurance policy required under this Section 7 shall contain a
provision to the effect that such policy shall not lapse or be terminated,
cancelled, altered or in any way limited in coverage or reduced in amount unless
the Mortgagee is notified in writing at least thirty (30) days prior to such
lapse, termination, cancellation, alteration, limitation or reduction. At least
thirty (30) days prior to the expiration of any such policy, the Mortgagor shall
furnish evidence satisfactory to the Mortgagee that such policy has been renewed
or replaced or is no longer required by this Section 7.
(vi) Each insurance policy required under this Section 7 (except flood
insurance written under the federal flood insurance program) shall contain an
endorsement or agreement by the insurer that any loss shall be payable to the
Mortgagee, as its interest
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may appear, in accordance with the terms of such policy notwithstanding any act
or negligence of the Mortgagor 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 the Mortgagor (so as not
to interfere with the Mortgagee's rights).
(vii) In the event of loss or damage to the collateral, the proceeds of any
insurance provided hereunder shall be applied as set forth in Section 14 of this
Article I; in the event of a public liability claim, the proceeds of any
insurance provided hereunder shall be applied toward extinguishing or satisfying
the liability and expenses incurred in connection therewith.
(viii) The Mortgagor shall not take out any separate or additional
insurance with respect to the Mortgaged Premises which is contributing in the
event of loss unless it is properly compatible with all of the requirements of
this Section 7.
Section 8. Preservation, Maintenance and Repair. All Improvements which are
presently erected and in the future are to be erected upon the Mortgaged
Premises, shall, at the Mortgagor's own cost and expense, be kept in good and
substantial repair, working order and condition, and the Mortgagor shall from
time to time make, or cause to be made, all necessary and proper repairs,
replacements, improvements and betterments thereto. The Mortgagor shall not
remove, demolish, materially alter or discontinue the use of any material part
of the Mortgaged Premises without the prior express written consent of the
Mortgagee, except that the Mortgagor shall from time to time make such
substitutions, additions, modifications and improvements as may be necessary and
as shall not impair the structural integrity, operating efficiency and economic
value of the Mortgaged Premises. All alterations, replacements, renewals or
additions made pursuant to this Section 8 shall automatically become and
constitute a part of the Mortgaged Premises and shall be covered by the lien of
this Mortgage. The Mortgagor shall not do, and shall not permit to be done, any
act which may in any way impair or weaken the security under this Mortgage.
Section 9. Declaration of No Offset. The Mortgagor represents to the
Mortgagee that the Mortgagor has no knowledge of any offsets, counterclaims or
defenses to the principal indebtedness secured hereby, or to any part thereof,
or the interest thereon, either at law or in equity. The Mortgagor shall, within
fifteen (15) business days upon request by mail, furnish a duly acknowledged
written statement in form reasonably satisfactory to the Mortgagee stating
either that the Mortgagor knows of no offsets or defenses existing against such
indebtedness, or if such offsets or defenses are alleged to exist,
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the nature and extent thereof, and in either case, such statement shall set
forth the amount due hereunder.
Section 10. No Removal of Fixtures. The Mortgagor shall not remove or
suffer to be removed from the Mortgaged Premises any fixtures owned by the
Mortgagor as the term "fixtures" (other than trade fixtures) is defined by the
law in New Jersey presently, or in the future to be incorporated into, installed
in, annexed or affixed to the Mortgaged Premises (unless such fixtures have been
replaced with similar fixtures of equal or greater utility and value or which
have become obsolete).
Section 11. Security Agreement. This Mortgage constitutes a security
agreement under the New Jersey Uniform Commercial Code, and the Mortgagor hereby
grants to the Mortgagee a security interest in all furniture, fixtures,
equipment and personal property and all other machinery, appliances,
furnishings, tools and building materials now owned or hereafter acquired by the
Mortgagor, and installed or to be installed in or on the Mortgaged Premises and
used or to be used in the management or operation of the Mortgaged Premises, and
all substitutions, replacements, additions and accessions thereto, together with
all cash and non-cash proceeds thereof. The Mortgagor shall execute, deliver,
file and refile any financing statements, continuation statements, or other
security agreements that the Mortgagee may require from time to time to confirm
the lien of this Mortgage with respect to such property. Without limiting the
foregoing, the Mortgagor hereby irrevocably constitutes and appoints the
Mortgagee with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority (coupled with an
interest) in the place and stead of such Mortgagor and in the name of such
Mortgagor or in the Mortgagee's own name, for the Mortgagee to execute, deliver
and file such instruments for and on behalf of the Mortgagor. Notwithstanding
any release of any or all of that property included in the Mortgaged Premises
which is deemed "real property", and proceedings to foreclose this Mortgage or
its satisfaction of record, the terms hereof shall survive as a security
agreement with respect to the security interest created hereby and referred to
above until the repayment or satisfaction in full of the obligations of the
Mortgagor as are now or hereafter secured hereby.
Section 12. Taxes. The Mortgagor shall prepare and timely file all federal,
state and local tax returns required to be filed by the Mortgagor and promptly
pay and discharge or cause to be promptly paid and discharged all taxes,
assessments, municipal or governmental rates, charges, impositions, liens and
water and sewer rents or any part thereof, heretofore or hereafter imposed upon
the Mortgagor or in respect of any of the Mortgagor's property and assets before
the same shall become in default, as
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well as all lawful claims which, if unpaid might become a lien or charge upon
such property and assets or any part thereof, except for those taxes,
assessments and other governmental charges then being contested in good faith by
the Mortgagor by appropriate proceedings (provided that such contest shall not
result in a new lien being placed on any of the Mortgagor's properties or assets
or result in any of the Mortgagor's properties or assets being subject to loss
or forfeiture as a result of the nonpayment of such items during the continuance
of said contest) and for which the Mortgagor has maintained adequate reserves or
accrued the estimated liability on the Mortgagor's balance sheets for payment
thereof. The Mortgagor shall submit to the Mortgagee, upon request, an affidavit
signed by the Mortgagor certifying that, to the best of the Mortgagor's
knowledge, all current federal and state information income tax returns have
been filed to date and all real property taxes, assessments, governmental
charges or levies and other lawful claims with respect to the Mortgagor's
properties and assets have been paid to date. Upon the occurrence of an Event of
Default, the Mortgagor shall, at the request of the Mortgagee, in addition to
the regular payment on the Notes, pay into a non-interest bearing account held
by the Mortgagee, at the times when the monthly installment of principal and
interest is payable, an amount equal to one-twelfth (1/12th) of the annual
estimated real estate taxes levied with respect to the Mortgaged Premises so
that funds are available to pay said real estate taxes and assessments when due,
and such sum shall be held by the Mortgagee for the payment of such real estate
taxes and assessments as they become due. If the amount so estimated shall prove
insufficient, then the Mortgagor shall pay the required deficiency upon demand.
Section 13. Change in Laws. During the term of this Mortgage, in the event
of the passage after the date of this Mortgage of any law of the State of New
Jersey, or any other governmental entity, changing in any way the laws now in
force for the taxation of mortgages, or debts secured thereby, for state or
local purposes, or the manner of the operation of any such taxes, so as to
affect the interest of the Mortgagee, then and in such event, the Mortgagor
shall bear and pay the full amount of such taxes, provided that if for any
reason payment by the Mortgagor of any such new or additional taxes would be
unlawful or if the payment thereof would constitute usury or render the Loans or
indebtedness secured hereby wholly or partially usurious under any of the terms
or provisions of the obligation secured hereunder, or this Mortgage, or
otherwise, the Mortgagee may, at the Mortgagee's option, declare the whole sum
secured by this Mortgage, with interest thereon, to be immediately due and
payable, or the Mortgagee may, at the Mortgagee's option, pay that amount or
portion of such taxes as renders the Loans or indebtedness secured hereby
unlawful or usurious, in which event the Mortgagor shall
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concurrently therewith pay the remaining lawful and nonusurious portion or
balance of said taxes.
Section 14. Damage, Destruction and Condemnation.
(i) If all or any part of the Mortgaged Premises shall be damaged or
destroyed, or if title to or the temporary use of the whole or any part of any
of the Mortgaged Premises shall be taken or condemned by a competent authority
for any public use or purpose, there shall be no abatement or reduction in the
amounts payable by the Mortgagor hereunder or under the Notes, and the Mortgagor
shall continue to be obligated to make such payments.
(ii) If the Mortgaged Premises or any part thereof is partially or totally
damaged or destroyed by fire or any other cause, the Mortgagor shall give prompt
written notice thereof to the Mortgagee. Upon the occurrence of such damage or
destruction to the Mortgaged Premises, where the damage to the Mortgaged
Premises exceeds $25,000.00, the Mortgagor shall have no claim against the
insurance proceeds, or be entitled to any portion thereof, and all rights to the
insurance proceeds are hereby assigned to the Mortgagee to be applied on account
of the indebtedness secured hereby that remains unpaid. If the damage exceeds
$25,000.00, the Mortgagee shall have the option, in its sole discretion, either
(a) to settle and adjust any claim under any insurance policies without the
consent of Mortgagor or (b) to allow Mortgagor to settle and adjust such claim
without the consent of Mortgagee; provided that in either case Mortgagee shall,
and is hereby authorized to, collect and receive any such insurance proceeds;
and the expenses incurred by Mortgagee in the adjustment and collection of
insurance proceeds shall be added to the indebtedness hereby, and shall be
reimbursed to Mortgagee upon demand or, in the event and to the extent
sufficient proceeds are available, shall be deducted and retained by Mortgagee
from said insurance proceeds prior to any other application thereof. Each
insurance company which has issued an insurance policy is hereby authorized and
directed to make payment for all losses covered by an insurance policy to
Mortgagee alone, and not to Mortgagee and Mortgagor jointly.
(iii) Mortgagee shall, in its sole discretion, elect to apply the net
proceeds of insurance policies consequent upon any casualty to either (a) to
reduce the indebtedness secured hereby or (b) to reimburse Mortgagor for the
cost of restoring, repairing, replacing or rebuilding (hereinafter collectively
referred to as "Restoring") the loss or damage to the Mortgaged Premises. In the
event Mortgagee elects to use such net proceeds to reimburse Mortgagor for the
costs of Restoring, then such reimbursement shall be subject to the conditions
and in accordance with the provisions of Section 14(viii) hereof. If Mortgagee
elects to apply the net proceeds of insurance to the indebtedness
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secured hereby and such proceeds do not discharge the indebtedness in full, the
entire indebtedness shall become immediately due and payable with interest
thereon at the Default Rate.
(iv) In the event net insurance proceeds are made available to Mortgagor
for the purpose of Restoring the Mortgaged Premises, Mortgagor hereby covenants
to restore, repair, replace or rebuild the Mortgaged Premises, to be of at least
equal value, and of substantially the same character as prior to such loss or
damage, all to be effected in accordance with plans, specifications and
procedures to be first submitted to Mortgagee and subject to Mortgagee's
approval. In the event the insurance proceeds are insufficient to pay the
aforementioned restoration costs in full, then Mortgagor shall pay all costs of
such Restoring which are in excess of such net insurance proceeds.
(v) Any portion of the insurance proceeds remaining after payment in full
of the obligations secured hereby shall be paid to Mortgagor or as ordered by a
court of competent jurisdiction.
(vi) At the written request of Mortgagor, the insurance proceeds held by or
for the benefit of Mortgagee shall be held in an interest bearing account.
(vii) In the event of foreclosure of the Mortgage or other transfer of
title to the Mortgaged Premises in extinguishment of the obligations secured
hereby, all right, title and interest of Mortgagor in and to any insurance
policies then in force shall pass to the purchaser of the Mortgaged Premises in
foreclosure, or the grantee of a deed in lieu of foreclosure, and Mortgagor
hereby appoints Mortgagee its attorney-in-fact with full irrevocable authority
(coupled with an interest), in Mortgagor's name, to assign and transfer all such
policies and proceeds to such purchaser or grantee.
(viii) If Mortgagee elects to apply the net proceeds of insurance policies
to reimburse the costs of Restoring to Mortgagor in accordance with Section
14(iii)(b) and provided no Event of Default has occurred and is then continuing,
the net insurance proceeds held by Mortgagee for Restoring of the Mortgaged
Premises shall be disbursed from time to time upon Mortgagee being furnished
with (a) evidence reasonably satisfactory to it of the estimated cost of
completion of the Restoring, (b) funds (or assurance satisfactory to Mortgagee
that such funds are available) sufficient in addition to the net proceeds of
insurance, to complete and fully pay for the completion of the Restoring and (c)
such architect's certificates, contractors', mechanics' and materialmen's
waivers of lien, contractor's sworn statements, title insurance endorsements,
plats of survey and such other evidence of cost, payment and performance as
Mortgagee may require and approve; and Mortgagee, in any event,
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may require that all plans and specifications for such Restoring be submitted to
and approved by Mortgagee prior to commencement of any work, which consent shall
not be unreasonably withheld or delayed. No payment made prior to the final
completion of the Restoring shall, when added to all previous payments, exceed
ninety percent (90%) of the value of the work performed from time to time, as
such value shall be determined by Mortgagee in its sole and exclusive judgment;
funds received by Mortgagee pursuant to subparagraph (b) above shall be
disbursed prior to disbursement of net insurance proceeds, except as may
otherwise be provided herein; and at all times the undisbursed balance of such
proceeds remaining in the hands of Mortgagee, together with funds deposited or
irrevocably committed to the satisfaction of completion of the Restoring, free
and clear of all liens on proceeds held by Mortgagee after payment of such costs
of Restoring, shall be paid to Mortgagor. If there is an Event of Default while
Mortgagee is holding funds for Restoring, Mortgagee may, at its sole option,
apply such funds against the indebtedness secured hereby, in such order,
proportion and priority as Mortgagee may elect in its sole and absolute
discretion.
(ix) Notwithstanding anything to the contrary contained in this Mortgage,
if the Improvements shall be damaged or destroyed (in whole or in part) by any
one fire or other casualty, Mortgagee shall, in accordance with the provisions
of Section 14(viii) above, make the net amount of all insurance proceeds
received by Mortgagee as a result of such damage or destruction after deduction
of the reasonable costs and expense, if any, in collecting the insurance
proceeds, available for Restoring, provided that: (a) no Event of Default shall
have occurred and shall be continuing under the Mortgage, the Loan Agreement,
the Notes or the other Loan Documents; (b) Mortgagee shall be reasonably
satisfied that the Restoring can be completed on or before one hundred eighty
(180) days after the occurrence of such damage or casualty; (c) the maturity
date of the Notes is not less than 18 months from the date of such damage or
casualty; and (d) Mortgagor shall execute and deliver to Mortgagee a completion
guaranty in form and substance satisfactory to Mortgagee pursuant to the
provisions of which Mortgagor shall guaranty to Mortgagee the lien-free (other
than the lien presently held by Mortgagee) completion by Mortgagor of the
Restoring in accordance with the provisions of this Mortgage.
(x) Any and all awards (the "Awards") heretofore or hereafter made or to be
made to the present, or any subsequent, owner of the Mortgaged Premises, by any
governmental or other lawful authority for the taking by condemnation or eminent
domain, of all or any part of the Mortgaged Premises (including any award from
the United States government at any time after the allowance of a claim
therefor, the ascertainment of the amount thereto, and the issuance of a warrant
for payment thereof), or the proceeds
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from a sale in lieu of such condemnation or eminent domain are hereby assigned
by Mortgagor to Mortgagee, which Awards Mortgagee is hereby authorized to
collect and receive from the condemnation authorities, and Mortgagee is hereby
authorized to give appropriate receipts and acquittance therefor. Mortgagor
shall give Mortgagee immediate notice of the actual or threatened commencement
of any condemnation or eminent domain proceedings affecting all or any part of
the Mortgaged Premises and shall deliver to Mortgagee copies of any and all
papers served in connection with any such proceedings. Mortgagor further agrees
to make, execute and deliver to Mortgagee, at any time upon request, free, clear
and discharged of any encumbrance of any kind whatsoever (except the rights of
holders of any junior mortgage loans expressly consented to in writing by
Mortgagee, provided such rights are expressly subordinate to the rights of
Mortgagee), any and all further assignments and other instruments deemed
reasonably necessary by Mortgagee for the purpose of validly and sufficiently
assigning to Mortgagee all Awards and other compensation heretofore and
hereafter made to Mortgagor for any taking, either permanent or temporary, under
any such proceeding. If any portion of or interest in the Mortgaged Premises is
taken by condemnation or eminent domain, either temporarily or permanently, and
the remaining portion of the Mortgaged Premises is not, in the judgment of
Mortgagee, an architectural and economic unit of the same character and is not
materially less valuable than the same was prior to the taking, then, at the
option of Mortgagee, the entire indebtedness shall immediately become due and
payable. After deducting from the Award for such taking all of its expenses
incurred in the collection and administration of the Award, including reasonable
attorney's fees and disbursements, Mortgagee shall be entitled to apply the net
proceeds towards repayment of such portion of the indebtedness as it deems
appropriate without affecting the lien of the Mortgage. In the event of any
partial taking of the Mortgaged Premises or any interest in the Mortgaged
Premises which in the judgment of Mortgagee leaves the Mortgaged Premises as an
architectural and economic unit of the same character and not materially less
valuable than the same was prior to the taking, and provided no Event of Default
has occurred and is then continuing, the Mortgagee shall apply the Award to
reimburse Mortgagor for the cost of restoration and rebuilding the Mortgaged
Premises in accordance with plans, specifications and procedures which must be
submitted to and approved by Mortgagee, and such Award shall be disbursed in the
same manner as is provided in Section 14 (viii) hereof for the application of
insurance proceeds, provided that any surplus after payment of such costs shall
be applied on account of the indebtedness. If the Award is not applied for the
reimbursement of such restoration costs, the Award shall be applied against the
indebtedness, in such order or manner as Mortgagee shall elect.
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Section 15. Compliance with Laws. The Mortgagor agrees to comply, and to
cause all tenants of all or any portion of the Mortgaged Premises to comply,
with all laws, rules, regulations and ordinances made or promulgated by lawful
authority which are now or may hereafter be applicable to the Mortgaged Premises
within such time as may be required by law.
Section 16. Indemnification. The Mortgagor hereby agrees to and does hereby
indemnify, protect, defend and save harmless the Mortgagee and its trustees,
officers, employees, agents, attorneys and shareholders (the "Indemnified
Parties") from and against any and all losses, damages, expenses or liabilities
of any kind or nature and from any suits, claims or demands, including
reasonable counsel fees incurred in investigating or defending such claim,
suffered by any of them and caused by, relating to, arising out of, resulting
from, or in any way connected with this Mortgage and the transactions
contemplated herein (unless caused by the negligence or willful misconduct of
the Indemnified Parties), including, without limitation, (i) disputes between
any architect, general contractor, subcontractor, materialman or supplier, or on
account of any act or omission to act by the Indemnified Parties in connection
with this Mortgage, or (ii) losses, damages, expenses or liabilities sustained
by the Indemnified Parties in connection with any environmental sampling or
cleanup of the Mortgaged Premises required or mandated by any federal, state or
local law, ordinance, rule or regulation, including, without limitation, the
Environmental Laws, as hereinafter defined. In case any action shall be brought
against an Indemnified Party based upon any of the above and in respect to which
indemnity may be sought against the Mortgagor, the Indemnified Party shall
promptly notify the Mortgagor in writing, and the Mortgagor shall assume the
defense thereof, including the employment of counsel selected by the Mortgagor
and reasonably satisfactory to the Indemnified Party, the payment of all costs
and expenses and the right to negotiate and consent to settlement. Upon
reasonable determination made by the Indemnified Party, the Indemnified Party
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof; provided, however, that said Indemnified
Party shall pay the costs and expenses incurred in connection with the
employment of separate counsel. The Mortgagor shall not be liable for any
settlement of any such action effected without the Mortgagor's consent, but if
settled with the Mortgagor's consent, or if there be a final judgment for the
claimant in any such action, the Mortgagor agrees to indemnify and save harmless
the Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. The provisions of this Section 16 shall survive the
termination of this Mortgage and the repayment of the Notes.
Section 17. Assignment of Rents. The Mortgagor hereby absolutely and
unconditionally assigns to the Mortgagee the rents,
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issues and profits arising out of or from the Mortgaged Premises, and the
Mortgagor grants to the Mortgagee the right to enter upon and to take possession
of the Mortgaged Premises for the purpose of collecting the same and to let the
Mortgaged Premises or any part thereof, and to apply the rents, issues and
profits, after payment of all necessary charges and expenses, on account of the
indebtedness secured hereby. This assignment and grant shall continue in effect
until this Mortgage is paid in full and discharged of record. The Mortgagee
hereby waives the right to enter upon and to take possession of the Mortgaged
Premises for the purpose of collecting said rents, issues and profits, and the
Mortgagor shall be entitled to collect, receive, retain and use said rents,
issues and profits until the occurrence of an Event of Default under this
Mortgage, but such right of the Mortgagor may be revoked by the Mortgagee upon
the occurrence of an Event of Default on five (5) days written notice. The
Mortgagor shall not, without the written consent of the Mortgagee, receive or
collect rent from any tenant of the Mortgaged Premises or any part thereof for a
period of more than one (1) month in advance, and in the event of the occurrence
of an Event of Default under this Mortgage, the Mortgagor shall 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 the Mortgaged Premises or of such part thereof as may be in the
possession of the Mortgagor, and upon default in any such payment the Mortgagor
shall vacate and surrender the possession of the Mortgaged Premises to the
Mortgagee or to such receiver. If the Mortgagor does not so vacate and surrender
the Mortgaged Premises then the Mortgagor may be evicted by summary proceedings.
Notwithstanding anything above to the contrary, in the event of a conflict or
inconsistency between this Section 17 and the Absolute Assignment of Leases and
Rents granted the date hereof by Mortgagor to Mortgagee, the terms of the
Absolute Assignment of Leases and Rents shall govern.
Section 18. Advances. Upon the occurrence of an Event of Default by the
Mortgagor under this Mortgage, the Loan Agreement and/or the Notes, the
Mortgagee may at its option remedy such Event of Default, and all payments made
by the Mortgagee to remedy an Event of Default by the Mortgagor (including
reasonable attorney's fees) and the total of any payment or payments due from
the Mortgagor to the Mortgagee which are in default, together with interest
thereon at the Default Rate set forth in the Notes and the Loan Agreement (such
interest to be calculated from the date of such advance to the date of payment
thereof by the Mortgagor), shall be added to the debt secured by this Mortgage
until paid, and the Mortgagor covenants to repay the same to the Mortgagee on
the next interest payment date of the Notes. Any such sums and the interest
thereon shall be a lien on the Mortgaged Premises prior to any other lien
attaching to or accruing subsequent to the lien of this Mortgage. All monies
paid, and all expenses paid or
15
incurred, including attorneys' fees and disbursements and other monies advanced
by Mortgagee to protect the Mortgaged Premises and the lien of this Mortgage, or
to complete construction, furnishing and equipping or to rent, operate and
manage the Mortgaged Premises or to pay any such operating costs and expenses
thereof or to keep the Mortgaged Premises operational and useable for their
intended purpose shall be so much additional debt secured by the Mortgage,
whether or not the indebtedness, as a result thereof, shall exceed the original
principal balance set forth herein, and shall become immediately due and payable
on the next interest payment date of the Notes, and with interest thereon at the
Default Rate set forth in the Notes and the Loan Agreement. Inaction of
Mortgagee shall never be considered as a waiver of any right accruing to it on
account of any Event of Default nor shall the provisions of this Section 18 or
any exercise by Mortgagee of its rights hereunder prevent any default from
constituting an Event of Default. Nothing contained herein shall be construed to
require Mortgagee to advance or expend monies for any purpose mentioned herein,
or for any other purpose, and any expenditure of monies or action taken
hereunder shall be at the sole option and discretion of Mortgagee.
Section 19. Transfer or Encumbrance of Mortgaged Premises.
(i) No part of the Mortgaged Premises shall in any manner be further
encumbered, sold, transferred or conveyed, or permitted to be further
encumbered, sold, transferred or conveyed, without the consent of Mortgagee,
which consent may be given or withheld in Mortgagee's sole discretion for any
reason or for no reason. The Mortgaged Premises shall not be encumbered by any
secondary or subordinate liens, including mechanics liens. The provisions of
this Section 19 shall apply to each and every such further encumbrance, sale,
transfer or conveyance, regardless of whether or not Mortgagee has consented to,
or waived by its action or inaction, its rights hereunder with respect to any
such previous further encumbrance, sale, transfer or conveyance.
Any consent by the Mortgagee, or any waiver of any Event of Default, under
this Section 19 shall not constitute a consent to, or waiver of any right,
remedy or power of the Mortgagee upon a subsequent Event of Default under this
Section 19.
(ii) Mortgagor recognizes that Mortgagee is entitled to keep its loan
portfolio at current interest rates by either making new loans at such rates or
collecting assumption fees and/or increasing the interest rate on a loan, the
security for which is purchased by a party other than Mortgagor. Mortgagor
further recognizes that any secondary or junior financing placed upon the
Mortgaged Premises (a) may divert funds which would otherwise be used to pay the
indebtedness secured hereby; (b) could result in the acceleration and
foreclosure by such junior encumbrancer which
16
would force Mortgagee to take measures and incur expenses to protect its
security; (c) would detract from the value of the Mortgaged Premises should
Mortgagee come into possession thereof with the intention of selling the same;
and (d) would impair Mortgagee's right to accept a deed in lieu of foreclosure,
as a foreclosure by Mortgagee would be necessary to clear the title to the
Mortgaged Premises. In accordance with the foregoing and for the purposes of (w)
protecting Mortgagee's security, both of repayment and of value of the Mortgaged
Premises; (x) giving Mortgagee the full benefit of its bargain and contract with
Mortgagor; (y) assumption fees; and (z) keeping the Mortgaged Premises free of
subordinate financing liens, Mortgagor agrees that if this Section 19 is deemed
a restraint on alienation, that it is a reasonable one.
Section 20. Environmental Matters. (i) For purposes of this Mortgage, the
following terms shall have following meanings:
"Hazardous Materials" shall mean existing and future asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls or related or similar
materials, petroleum products, explosives, radioactive materials, or any other
hazardous or toxic or harmful materials, wastes and substances or any other
chemical, material, substance or element which is hereinafter defined,
determined, identified, prohibited, limited or regulated by the Environmental
Laws, or any other chemical, material, substance or element which is known to be
harmful to the health or safety of occupants of property or which is hereinafter
defined as a hazardous or toxic substance by any Federal, State, or local law,
ordinance, rule or regulation, including, but not limited to, the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. 1801
et seq.), and/or the regulations promulgated in relation thereto, all as the
same may be amended from time to time (hereinafter collectively referred to as
the "Federal Statutes"), the New Jersey Spill Compensation and Control Act, as
amended, N.J.S.A. 58:10-23.11 et seq., the New Jersey Environmental Cleanup
Responsibility Act, as amended by the Industrial Site Recovery Act, and as may
be further amended, N.J.S.A. 13:1K-6 et seq., the New Jersey Leaking Underground
Storage Tank Act, as amended, N.J.S.A. 58:1OA-21 et seq. (hereinafter
collectively referred to as the "State Statutes"), and the regulations
promulgated in relation thereto, all as the same may be amended from time to
time.
"Environmental Laws" shall mean any applicable federal, state or local
laws, rules, regulations, resolutions, ordinances,
17
directives or orders (whether now existing or hereafter enacted or promulgated)
or any judicial or administrative interpretation of such laws, rules,
regulations, resolutions, ordinances, directives or orders or any other
applicable determination regarding land, water, air, health, safety or
environment including, for example but not limited to, the Federal Statutes and
the State Statutes.
"Governmental Authority" shall mean any federal, state, and local
government, governing body, agency, court, tribunal, authority, subdivision,
bureau or other recognized body having jurisdiction to enact, promulgate,
interpret, enforce, review or repeal any Environmental Law.
"Environmental Complaint" shall mean any judgment, lien, order, complaint,
notice, citation, action, proceeding or investigation pending before any
Governmental Authority, including, without limitation, any environmental
regulatory body, with respect to or threatened against or affecting the
Mortgagor or relating to its business, assets, property or facilities or the
Mortgaged Premises, in connection with any Hazardous Material or any Hazardous
Discharge or any Environmental Law.
"Hazardous Discharge" shall mean any release of a Hazardous Material caused
by the seeping, spilling, leaking, pumping, pouring, emitting, using, emptying,
discharging, injecting, escaping, leaching, dumping or disposing of any
Hazardous Material into the environment, and any liability for the costs of any
cleanup or other remedial action.
(ii) The Mortgagor covenants, represents and warrants that except as
disclosed in the Phase I Environmental Site Assessment by Xxxxxx-Xxxxx and
Associates, Inc. dated July 20, 1994:
(a) to the best of the Mortgagor's knowledge, after due inquiry and
investigation, none of the real property owned or occupied by the Mortgagor and
located in the state in which the Mortgaged Premises is situated, including, but
not limited to the Mortgaged Premises, has ever been used by previous owners,
operators or occupants or the Mortgagor to generate, manufacture, refine,
transport, treat, store, handle or dispose, transfer, produce, process or in any
manner deal with any Hazardous Material,
(b) the Mortgagor has not received a summons, citation, directive, letter
or other communication, written or oral, from any Government Authority
concerning any intentional or unintentional action or omission on the
Mortgagor's part which had resulted in the violation of any Environmental Laws,
as the same may relate to the Mortgaged Premises,
18
(c) to the best of the Mortgagor's knowledge, after due inquiry and
investigation, no lien has been attached to any revenues or any real or personal
property owned by the Mortgagor and located in the state where the Mortgaged
Premises are located, including, but not limited to the Mortgaged Premises, for
"Damages" and/or "Cleanup and Removal Costs", as such terms are hereinafter
defined in any Environmental Law, or arising from an intentional or
unintentional act or omission in violation thereof by the Mortgagor or by any
previous owner and/or operator of such real or personal property, including, but
not limited to the Mortgaged Premises,
(d) the Mortgagor has duly complied, and shall continue to comply, with the
provisions of the Environmental Laws governing it, its business, assets,
property, facilities and the Mortgaged Premises, and shall keep the Mortgaged
Premises free and clear of any liens imposed pursuant to such laws,
(e) the Mortgagor shall not, and shall not permit any of its officers,
partners, employees, agents, contractors, licensees, tenants, occupants or
others to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce, process or in any manner deal with any Hazardous
Material on the Mortgaged Premises except in accordance with all Environmental
Laws applicable thereto,
(f) there is not now outstanding any Environmental Complaint issued by any
Governmental Authority to the Mortgagor or relating to the Mortgagor's business,
assets, property, and facilities or the Mortgaged Premises under any
Environmental Law, and there is not now existing any condition which, if known
by the proper authorities, could result in any Environmental Complaint, and that
(g) the Mortgagor has, and will continue to have, all necessary licenses,
certificates and permits under the Environmental Laws relating to the Mortgagor
and its facilities, property, assets, and business, and the Mortgaged Premises
and the foregoing are in compliance with all Environmental Laws.
(h) there are no underground storage tanks on or under the Mortgaged
Premises.
(iii) If the Mortgagor receives any notice of (a) the presence of Hazardous
Materials on the Mortgaged Premises, (b) any violation of or noncompliance with
any Environmental Law, (c) the occurrence of a Hazardous Discharge on or about
any asset, business, facility or property of the Mortgagor or caused by the
Mortgagor, or (d) any Environmental Complaint affecting the Mortgagor or the
Mortgaged Premises or the Mortgagor's operations, assets, business, facilities
or properties, then the Mortgagor
19
will give written notice of the foregoing to the Mortgagee within ten (10) days
of receipt thereof and shall (1) promptly comply with the Environmental Laws and
all other laws, regulations, resolutions and ordinances to correct, contain,
cleanup, remove, resolve or minimize the impact of such Hazardous Materials,
Environmental Discharge or Environmental Complaint and (2) shall (A) post a bond
from a surety or (B) cause a lending institution to issue a letter of credit for
the benefit of the Mortgagee, and to any Governmental Authority requiring the
same; the surety or the lending institution, and the form, the substance and the
amount of the bond or letter of credit to be satisfactory to the Mortgagee and
satisfactory to the applicable Governmental Authority, or shall give to the
Mortgagee and the applicable Governmental Authority such other security
satisfactory in form, substance and amount to both the Mortgagee and the
applicable Governmental Authority to assure that the Mortgagor does correct,
contain, cleanup, remove, resolve or minimize the impact of such Hazardous
Materials, Environmental Discharge or Environmental Complaint.
(iv) Without limitation of the Mortgagee's rights under this Mortgage or
applicable law, the Mortgagee shall have the right, but not the obligation, to
exercise any of its rights to cure as provided in this Mortgage or to enter onto
the Mortgaged Premises or to take such other actions as it deems necessary or
advisable to correct, contain, cleanup, remove, resolve or minimize the impact
of, or otherwise deal with, any such Hazardous Material, Hazardous Discharge or
Environmental Complaint upon its receipt of any notice from any person or entity
or Governmental Authority, informing the Mortgagee of such Hazardous Material,
Hazardous Discharge or Environmental Complaint, which if true, could adversely
affect the Mortgagor or any part of the Mortgaged Premises or which, in the sole
opinion of the Mortgagee, could adversely affect its collateral security under
this Mortgage. All reasonable costs and expenses incurred and paid by the
Mortgagee in the exercise of any such rights shall be paid by the Mortgagor to
the Mortgagee upon demand, together with interest from the date that such sum is
advanced, payment made or expense incurred, to and including the date of
reimbursement, computed at the Default Rate. Any such sum paid by the Mortgagee
and the interest thereon shall be a lien on the Mortgaged Premises prior to any
claim, lien, right, title or interest in, to or on the Mortgaged Premises
attaching or accruing subsequent to the lien of this Mortgage, and shall be
deemed to be secured by this Mortgage and evidenced by the Notes.
(v) Upon written request, the Mortgagor shall provide to the Mortgagee the
following information pertaining to all operations conducted in or on the
Mortgaged Premises:
20
(a) copies of all licenses, certificates and permits under the
Environmental Laws;
(b) material safety data sheets and maps, diagrams and site plans showing
the location of all storage areas and storage tanks for all Hazardous Materials
or other chemicals in, used at, manufactured at, brought to or stored at the
Mortgaged Premises;
(c) copies of all materials filed with any Governmental Authority;
(d) a description of the operations and processes of the Mortgagor; and
(e) any other information which the Mortgagee may reasonably require.
(vi) Upon reasonable notice to the Mortgagor, the Mortgagee, its officers,
employees, agents and contractors, may enter the Mortgaged Premises to inspect
it and to conduct, complete and take such tests, samples, analyses and other
processes (an "Environmental Survey") as the Mortgagee shall require to
determine the Mortgagor's compliance with this Paragraph and the Environmental
Laws (but not more than once during the term unless Mortgagee reasonably
believes there has been a Hazardous Discharge or an Event of Default has
occurred). The costs, expenses and fees of the Mortgagee of such entry,
inspection, tests, samples, analyses and processes shall be paid and reimbursed
by the Mortgagor upon demand by the Mortgagee. Any such sum paid by the
Mortgagee, with the interest thereon at the rate provided to be paid on the
indebtedness secured by this Mortgage, shall be a lien on the Mortgaged Premises
prior to any claim, lien, right, title or interest in, to or on the Mortgaged
Premises attaching or accruing subsequent to the lien of this Mortgage, and
shall be deemed to be secured by this Mortgage and evidenced by the Notes.
(vii) In addition to those Events of Default specified in this Mortgage,
the occurrence of any of the following events shall constitute a default under
this Mortgage, entitling the Mortgagee to all rights and remedies provided
therefor:
(a) if any Governmental Authority asserts or creates a lien upon any or all
of the Mortgaged Premises by reason of the presence of Hazardous Materials or
the occurrence of a Hazardous Discharge or Environmental Complaint or otherwise,
and the Mortgagor does not, within the earlier of sixty (60) days after the
recording thereof or prior to the institution by such Governmental Authority of
any steps to foreclose such lien, cause such lien to be discharged of record; or
21
(b) if any Governmental Authority asserts a claim against the Mortgagor,
the Mortgaged Premises or the Mortgagee for damages or cleanup or remedial costs
related to any Hazardous Materials or any Hazardous Discharge or any
Environmental Complaint; provided, however, such claim shall not constitute a
default if, within fifteen (15) business days of the Mortgagor's receipt of
notice of the foregoing:
(1) the Mortgagor can prove to the Mortgagee's reasonable satisfaction that
the Mortgagor has commenced and is diligently pursuing either: (A) a cure,
remedy or correction of the event which constitutes the basis for the claim, and
is continuing diligently to pursue such cure or correction to completion, in
strict compliance with the Environmental Laws or Environmental Complaint, as
applicable, or (B) proceedings for injunction, a restraining order or other
appropriate emergency relief to prevent such Governmental Authority from
asserting such claim, which relief is granted within thirty (30) days of the
occurrence giving rise to the claim and the injunction, order or emergency
relief is not thereafter dissolved or reversed on appeal; and
(2) in either of the foregoing events, the Mortgagor shall (A) give such
surety or other security, which may be required by and satisfactory to both the
Governmental Authority asserting the claim and to the Title Company, to secure
the proper and complete cure or correction of the event which constitutes the
basis for the claim or, (B) at the Mortgagee's request if no such bond or
security has been given, the Mortgagor shall post a bond from a surety or a
letter of credit issued by a lending institution, with the Mortgagee, the surety
or the lending institution, and the form, substance and amount of the bond or
letter of credit to be reasonably satisfactory to the Mortgagee and to the Title
Company, or shall give to the Mortgagee and the Title Company such other
security satisfactory in form, substance and amount to the Mortgagee and to the
Title Company, to secure the payment for all of the work, labor and services
required to effect a proper and complete cure or correction of the condition
which constitutes the basis for the claim.
(viii) The Mortgagor covenants and agrees, at its sole cost and expense, to
indemnify, protect, and save the Mortgagee harmless against and from any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, proceedings, costs, disbursements or
expenses of any kind or of any nature whatsoever (including, without limitation,
reasonable attorneys' and experts' fees and disbursements) which may at any time
be imposed upon, incurred by or asserted or awarded against the Mortgagee and
arising from or out of:
22
(a) the Mortgagor's failure to perform and comply with this Subsection, or
(b) any Hazardous Material, any Hazardous Discharge, any Environmental
Complaint, or any Environmental Law applicable to the Mortgagor, its operations,
business, assets, property or facilities, or the Mortgaged Premises, or
(c) any action against the Mortgagor under this indemnity.
Section 21. Mortgage Secures a Line of Credit. This Mortgage secures the
Loans to the extent of the stated principal amount of this Mortgage plus
interest and other amounts secured hereby. In addition to the other rights
granted to the Mortgagee hereunder and under applicable law and without any
limitation on said rights, this Mortgage secures the indebtedness of the
Mortgagor under the Loan Agreement, which reflects the fact that the parties
thereto reasonably contemplate entering into a series of advances, payments and
re-advances, and that the aggregate amount at any time outstanding by reason of
such series of advance, or advances, payments and re-advances shall not exceed
the maximum amount available pursuant to the Loan Agreement, the stated
principal amount of which plus interest and other amounts which may be advanced
to the Mortgagor thereunder is secured by this Mortgage. This Mortgage shall
secure not only the original indebtedness but also the indebtedness that may be
created by future advances to the Mortgagor by the Mortgagee hereunder made
hereafter, whether such advances are obligatory or are to be made at the option
of the Mortgagee or otherwise, to the same extent and with the same priority
lien as if such future advances had been made at the time this Mortgage is
recorded, although there may be no advances made at the time of the execution
and acknowledgment of this Mortgage, and although there may be no indebtedness
outstanding at the time any advance is made. The total amount of the Loans
secured hereunder may increase or decrease from time to time in accordance
advances, repayments and re-advances made, if any, pursuant to the Loan
Agreement.
ARTICLE II. THE MORTGAGOR SHALL BE IN DEFAULT OF THIS MORTGAGE UPON THE
OCCURRENCE OF ANY OF THE FOLLOWING EVENTS (ANY OF WHICH MAY BE REFERRED TO AS AN
"EVENT OF DEFAULT"):
Section 1. Nonpayment. The Mortgagor shall fail to make when due any
payment of principal, interest or other monies as provided in the Loan Agreement
and/or the Notes or this Mortgage within five (5) days after same is due and
payable.
Section 2. Breach of Covenants. The Mortgagor or any Guarantor shall have
failed to perform any of the terms,
23
covenants, conditions or undertakings contained in this Mortgage, the Loan
Agreement or the Notes, other than the nonpayment of money, and such default
shall have remained uncured for the applicable grace periods, if any, provided
for herein or therein.
Section 3. Representations and Warranties. In the event that any
representation or warranty made by the Mortgagor or any Guarantor in this
Mortgage, the Loan Agreement, the Notes or in any other Loan Document used in
connection herewith shall prove to be false or misleading in any substantial and
material respect on the date as of which made.
Section 4. Bankruptcy. The Mortgagor or any Guarantor shall have applied
for or consented to the appointment of a receiver, custodian, trustee or
liquidator of all or a substantial part of the Mortgagor's or any Guarantor's
assets; or shall generally not be paying the Mortgagor's or any Guarantor's
debts as they become due; or shall have admitted in writing the inability to pay
the Mortgagor's or any Guarantor's debts as they mature; or shall have made a
general assignment for the benefit of creditors; or shall have filed a petition
or an answer seeking an arrangement with creditors; or shall have taken
advantage of any insolvency law; or shall have submitted an answer admitting the
material allegations of a petition in any bankruptcy or insolvency proceeding;
or an order, judgment or decree shall have been entered, without the
application, the approval or consent of the Mortgagor or any Guarantor by any
Court of competent jurisdiction appointing a receiver, custodian, trustee or
liquidator of the Mortgagor or any Guarantor, or a substantial part of the
Mortgagor's or any Guarantor's assets; or a petition in bankruptcy shall have
been filed by or against Mortgagor or any Guarantor; or if any Order for Relief
shall have been entered under the Federal Bankruptcy Code.
Section 5. Other Foreclosures. In the event that proceedings shall have
been instituted for foreclosure or collection of any mortgage, judgment, or lien
prior, equal to or subordinate to the lien of this Mortgage, affecting the
Mortgaged Premises, and same is not discharged within thirty (30) days thereof.
Section 6. Judgments. In the event one or more final judgments, decrees, or
orders for the payment of money in excess of Fifty Thousand Dollars ($50,000.00)
in the aggregate shall be rendered against the Mortgagor or any Guarantor and
such judgments, decrees or orders shall continue unsatisfied and in effect for a
period of thirty (30) consecutive days without being vacated, discharged,
satisfied, or stayed or bonded pending appeal.
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Section 7. Other Debt. In the event of an Event of Default by the Mortgagor
or any Guarantor in any of the terms or conditions of an Event of Default any
agreement covering the payment of borrowed money (other than trade payables)
from any Person including, but not limited to, the Loan Agreement, or any Loan
Documents executed in connection therewith, if such a default would permit the
holder of the debt instrument to accelerate the payment of the debt,
irrespective of whether the default is waived or not waived by the holder of the
debt instrument.
Section 8. Default Under Other Loan Documents. In the event of a default or
Event of Default under any other Loan Document.
Section 9. Effectiveness of Guaranties. In the event the guaranties given
by the Guarantors shall cease to be in full force and effect or shall be
declared null and void, or the validity or enforceability thereof shall be
contested by any Guarantor, or any Guarantor shall deny it has any further
liability or obligation under or shall fail to perform its obligations under
such Guarantor's guaranty.
ARTICLE III. IF ANY EVENT OF DEFAULT SHALL HAVE OCCURRED AND IS CONTINUING
ON THE PART OF THE MORTGAGOR, THE MORTGAGEE MAY TAKE ANY OR ALL OF THE FOLLOWING
ACTIONS, AT THE SAME OR AT DIFFERENT TIMES:
Section 1. Acceleration. The Mortgagee may declare the entire amount of
unpaid principal, together with all accrued and unpaid interest and other moneys
due under this Mortgage, the Loan Agreement, the Notes and the other Loan
Documents immediately due and payable, and accordingly accelerate payment
thereof notwithstanding contrary terms of payment stated therein, without
presentment, demand or notice of any kind, all of which are expressly waived,
notwithstanding anything to the contrary contained in the Mortgage, the Loan
Agreement and/or the Notes.
Section 2. Possession. The Mortgagee may enter upon and take possession of
the Mortgaged Premises; lease and let the said Mortgaged Premises; receive all
the rents, income, issues and profits thereof which are overdue, due or to
become due; and apply the same, after payment of all necessary charges and
expenses, on account of the amounts hereby secured. The Mortgagee is given and
granted full power and authority to do any act or thing which the Mortgagor or
the successors or assigns of the Mortgagor who may then own the Mortgaged
Premises might or could do in connection with the management and operation of
the Mortgaged Premises. This covenant becomes effective either with or without
any action brought to foreclose this Mortgage and without applying at any time
for a receiver of such rents. Should said rents or any part thereof be assigned
without the consent of the holder of this
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Mortgage, then this Mortgage shall at the option of the holder hereof become due
and payable immediately, anything herein contained to the contrary
notwithstanding.
Section 3. Foreclosure. The Mortgagee may institute an action of mortgage
foreclosure or take other action as the law may allow, at law or in equity, for
the enforcement of this Mortgage, and proceed thereon to final judgment and
execution of the entire unpaid balance of the Notes including costs of suit,
interest and reasonable attorney's fees. In case of any sale of the Mortgaged
Premises by virtue of judicial proceedings, the Mortgaged Premises may be sold
in one parcel and as an entirety or in such parcels, manner or order as the
Mortgagee in its sole discretion may elect. The failure to make any tenants
parties defendant to a foreclosure proceeding and to foreclose their rights will
not be asserted by the Mortgagor as a defense in any proceeding instituted by
the Mortgagee to collect the obligations secured hereby or any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged Premises.
Section 4. Appointment of Receiver. The Mortgagee may have a receiver of
the rents, income, issues and profits of the Mortgaged Premises appointed
without the necessity of proving either the depreciation or the inadequacy of
the value of the Security or the insolvency of the Mortgagor or any Person who
may be legally or equitably liable to pay moneys secured hereby, and the
Mortgagor and each such Person waives such proof and consents to the appointment
of a receiver.
Section 5. Fair Rental Payments. If the Mortgagor or any subsequent owner
is occupying the Mortgaged Premises or any part thereof, it is hereby agreed
that the said occupants shall pay such reasonable rental monthly (to be applied
on account of the unpaid indebtedness) in advance as the Mortgagee shall demand
for the Mortgaged Premises or the part so occupied, and for the use of personal
property covered by this Mortgage or any chattel mortgage.
Section 6. Excess Monies. The Mortgagee may apply on account of the unpaid
indebtedness evidenced by the Notes (including any unpaid accrued interest) owed
to the Mortgagee after a foreclosure sale of the Mortgaged Premises, whether or
not a deficiency action shall have been instituted, any unexpended monies still
retained by the Mortgagee that were paid by Mortgagor to the Mortgagee (i) for
the payment of, or as security for the payment of taxes, assessments, municipal
or governmental rates, charges, impositions, liens, water or sewer rents, or
insurance premiums, if any, or (ii) in order to secure the performance of some
act by the Mortgagor.
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Section 7. Remedies at Law or Equity. The Mortgagee may take any of the
remedies otherwise available to it as a matter of law or equity.
ARTICLE IV. MISCELLANEOUS:
Section 1. Cumulative Rights. The rights and remedies herein expressed to
be vested in or conferred upon the Mortgagee shall be cumulative and shall be in
addition to and not in substitution for or in derogation of the rights and
remedies conferred by any applicable law. The acceptance by the Mortgagee of any
payments hereunder after the occurrence of an Event of Default or the failure,
at any one or more times, of the Mortgagee to assert the right to declare the
principal indebtedness due or the granting of any extension or extensions of
time of payment of the Notes either to the maker or to any other Person, or
taking of other or additional security for the payment thereof, or releasing any
security, or changing any of the terms of this Mortgage, the Loan Agreement, the
Notes, the other Loan Documents, or any other obligation accompanying this
Mortgage, or waiver of or failure to exercise any right under any covenant or
stipulation herein contained shall not in any way affect this Mortgage nor the
rights of the Mortgagee hereunder nor operate as a release from any personal
liability upon the Notes or other obligation accompanying this Mortgage, nor
under any covenant or stipulation therein contained, nor under any agreement
assuming the payment of said Notes or obligation.
Section 2. Notices. Unless otherwise indicated differently, all notices,
payments, requests, reports, information or demands which any party hereto may
desire or may be required to give to any other party hereunder, shall be in
writing and shall be personally delivered or sent by facsimile, Federal Express
or other nationally recognized overnight delivery service providing a receipt
for delivery, or first-class certified or registered United States mail, postage
prepaid, return receipt requested, and sent to the party at its address
appearing below or such other address as any party shall hereafter inform the
other party hereto by written notice given as aforesaid:
If to the Mortgagor:
Suprema Specialties, Inc.
000 Xxxx 00xx Xxxxxx
X.X. Xxx 000 Xxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxx Xxxxxxxxx, President
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With a copy to:
Xxxxxx, Xxxxxxxxxx & Zunz, P.A.
c/x Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
If to the Mortgagee:
Fleet Bank, N.A.
000 Xxxxxxxx Xxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
With a copy to:
Windels, Marx, Davies & Ives
000 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
All notices, payments, requests, reports, information or demands so given shall
be deemed effective upon receipt or, if mailed, upon receipt or the expiration
of the third day following the date of mailing, which ever occurs first, except
that any notice of change in address shall be effective only upon receipt by the
party to whom said notice is addressed. A failure to send the requisite copies
does not invalidate an otherwise properly sent notice to the Mortgagor and/or
the Mortgagee.
Section 3. Successors and Assigns. All of the terms, covenants, provisions
and conditions herein contained shall be for the benefit of, apply to, and bind
the successors and assigns of the Mortgagor and the Mortgagee, and are intended
and shall be held to be real covenants running with the land, and the term
"Mortgagor" shall also include any and all subsequent owners and successors in
title of the Mortgaged Premises.
Section 4. Gender. When such interpretation is appropriate, any word
denoting gender used herein shall include all persons, natural or artificial,
and words used in the singular shall include the plural.
Section 5. Waiver of Right of Redemption. The Mortgagor waives the right of
redemption on any property levied upon under a judgment obtained in proceedings
to collect the indebtedness hereby secured or in proceedings on this Mortgage,
and further waives and releases any and all benefits that may accrue to the
Mortgagor by virtue of any law relating to appraisement, stay of execution or
exemption of the Mortgaged Premises from levy or sale
28
under execution, now or hereafter in force. A foreclosure sale shall constitute
a foreclosure sale of all interest whatsoever of the Mortgagor in the Mortgaged
Premises and the Mortgagee shall, if it is the purchaser at the sale, hold the
Mortgaged Premises and any part thereof so purchased free of any equity of
redemption by reason of any circumstances whatsoever and not as collateral for
any obligation.
Section 6. Severability. The provisions of this Mortgage are severable. In
the event of the unenforceability or invalidity of any one or more of the terms,
covenants, conditions, or provisions of this Mortgage under federal, state, or
other applicable law, such unenforceability or invalidity shall not render any
other of the terms, covenants, conditions, or provisions hereof unenforceable or
invalid. In the event any waiver by Mortgagor hereunder is prohibited by law,
including but not limited to the waiver of exemption from execution, such waiver
shall be and deemed to be deleted herefrom.
Section 7. [intentionally omitted]
Section 8. WAIVER OF JURY TRIAL. THE MORTGAGOR HEREBY WAIVES ANY AND ALL
RIGHTS THAT IT MAY NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATE OF
AMERICA OR ANY STATE TO A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING EITHER
DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING BETWEEN THE MORTGAGEE OR ITS
SUCCESSORS AND ASSIGNS, OUT OF OR IN ANY WAY CONNECTED WITH THIS MORTGAGE, THE
NOTES AND THE OTHER LOAN DOCUMENTS. IT IS INTENDED THAT SAID WAIVER SHALL APPLY
TO ANY AND ALL DEFENSES, RIGHTS, AND/OR COUNTERCLAIMS IN ANY ACTION OR
PROCEEDING.
Section 9. SERVICE OF PROCESS. THE MORTGAGOR AGREES THAT SERVICE OF PROCESS
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING
OUT OF OR RELATED TO THIS MORTGAGE OR THE RELATIONSHIP ESTABLISHED HEREUNDER MAY
BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE MORTGAGOR AT THE ADDRESS SET FORTH HEREIN.
Section 10. Payment of Attorneys' Fees and Costs. If upon an Event of
Default: (i) this Mortgage or any Loan Document is placed in the hands of an
attorney for collection or enforcement or is collected or enforced through any
legal proceeding; (ii) an attorney is retained to represent Mortgagee in any
bankruptcy, reorganization, receivership, or other proceeding affecting
creditor's rights and involving a claim under this Mortgage or any of the Loan
Documents; (iii) an attorney is retained to protect or enforce the lien of the
Mortgage or any of the Loan Documents; or (iv) an attorney is retained to
represent Mortgagee in any other proceeding whatsoever in connection with this
Mortgage, any of the Loan Documents or any property subject thereto, then
Mortgagor shall pay to Mortgagee all reasonable attorneys' fees, costs,
29
expenses and disbursements incurred in connection therewith, in addition to all
other amounts due hereunder.
Section 11. Right of Set-Off. Upon the occurrence and during the
continuance of any Event of Default, the Mortgagee is hereby authorized at any
time and from time to time, without notice to the Mortgagor (any such notice
being expressly waived by the Mortgagor), to set-off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Mortgagee to or for the
credit or the account of the Mortgagor and relating to the Loans, the Mortgaged
Premises or the Loan Documents against any and all of the obligations of the
Mortgagor now or hereafter existing under this Mortgage, the Loan Agreement, the
Notes or any other Loan Document, irrespective of whether or not the Mortgagee
shall have made any demand under this Mortgage, the Loan Agreement, the Notes or
such other Loan Document and although such obligations may be unmatured. The
Mortgagee agrees promptly to notify the Mortgagor after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Mortgagee under this
Section 11 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Mortgagee may have.
Section 12. Counterparts. This Mortgage may be executed in any number of
counterparts, each of which shall be deemed an original but such counterparts
shall together constitute but one and the same instrument.
Section 13. Performance. The Mortgagor shall perform and abide by the terms
and covenants herein and the terms and covenants in the Loan Agreement and the
Notes, all of which are made a part hereof as though set forth herein at length.
Section 14. Law Governing. All the terms, conditions and covenants
contained in this Mortgage shall be governed by and construed and interpreted in
accordance with the laws of the State of New Jersey.
Section 15. No Assignment. This Mortgage shall not be assigned by the
Mortgagor without the prior express written consent of the Mortgagee.
Section 16. Modifications in Writing. No provision of this Mortgage may be
waived, changed, amended, modified or discharged orally and no executory
agreement shall be effective to modify or discharge it in whole or in part,
unless it is in writing and signed by the party against whom enforcement of the
waiver, change, amendment, modification or discharge is sought. Any waiver by
the Mortgagee or modification of the terms hereof shall
30
be effective only in the specific instance and for the specific purpose for
which given and, notwithstanding anything to the contrary herein, all such
waivers and modifications may be given or withheld in the sole judgment of the
Mortgagee.
Section 17. Consent by Mortgagee. If the Mortgagor shall request the
Mortgagee's consent or approval pursuant to any of the provisions of this
Mortgage or otherwise, and the Mortgagee shall fail or refuse to give, or shall
delay in giving, such consent or approval, the Mortgagor shall in no event
(other than upon the willful misconduct or bad faith of Mortgagee) make, or be
entitled to make, any claim for damages (nor shall the Mortgagor assert, or be
entitled to assert, any such claim by way of defense, set-off, or counterclaim)
based upon any claim or assertion by the Mortgagor that the Mortgagee
unreasonably withheld or delayed its consent or approval, and the Mortgagor
hereby waives any and all rights that it may have, from whatever source derived,
to make or assert any such claim. The Mortgagor's sole remedy for any such
failure, refusal, or delay shall be an action for a declaratory judgment,
specific performance, or injunction, and such remedies shall be available only
in those instances where the Mortgagee has expressly agreed in writing not to
unreasonably withhold or delay its consent or approval or where, as a matter of
law, the Mortgagee may not unreasonably withhold or delay the same.
Section 18. Joint and Several Liability. If the Mortgagor consists of more
than one Person, the obligations and liabilities of each such Person hereunder
shall be joint and several.
THE MORTGAGOR HEREBY DECLARES THAT THE MORTGAGOR HAS READ THIS MORTGAGE,
HAS RECEIVED A COMPLETELY FILLED IN COPY OF IT WITHOUT CHARGE THEREFOR AND HAS
SIGNED THIS MORTGAGE AS OF THE DATE AT THE TOP OF THE FIRST PAGE.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be duly
executed and delivered by its appropriate authorized corporate officers and its
corporate seal to be hereunto affixed and attested, pursuant to the resolution
of its Board of Directors, all on the day and year first above written.
ATTEST: SUPREMA SPECIALTIES, INC.
By:
------------------------ --------------------------
Xxxxxx Xxxxxxxxxx, Xxxx Xxxxxxxxx,
Secretary President
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SCHEDULE "A"
ATTACHED TO AND MADE A PART OF THAT
CERTAIN MORTGAGE BY AND BETWEEN
SUPREMA SPECIALTIES, INC.
AS MORTGAGOR, AND
NATWEST BANK N.A.
AS MORTGAGEE, DATED
DECEMBER 16, 1998
DESCRIPTION OF MORTGAGED PREMISES
STATE OF NEW JERSEY :
:ss:
COUNTY OF MIDDLESEX :
BE IT REMEMBERED, that on this 16th day of December, 1998, before me, the
subscriber, an officer duly authorized pursuant to N.J.S.A. 46:14-6 to take
acknowledgements for use in the State of New Jersey, personally appeared Xxxx
Xxxxxxxxx, who I am satisfied is the person who executed the within Mortgage as
the President of Suprema Specialties, Inc., the corporation named therein, and
he did thereupon acknowledge that the said Mortgage made by the said corporation
and delivered by him as such officer, is the voluntary act and deed of said
corporation, made by virtue of authority from its Board of Directors, for the
uses and purposes therein expressed.
------------------------------
Notary Public
