Exhibit 10.3
COMMERCIAL MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND
RENTS
This COMMERCIAL MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND
RENTS (this "Mortgage") entered into as of April 20, 2009, between The
Xxxxx Electronics Corporation, a New York corporation, with an address of
00 Xxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the "Mortgagor") and TD Bank,
N.A., a National banking association, with an address of 0000 Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Bank").
The real property which is the subject matter of this Mortgage has the
following address(es): 00 Xxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the
"Address(es)").
The Real Property is designated on the current official tax map for the
Borough of Oakland, County of Bergen and the State of New Jersey as Xxx
Xx. 0, Xxxxx Xx. 000, and is more fully described in Deed Book No. 6546
and Page No. 507.
1. MORTGAGE, OBLIGATIONS AND FUTURE ADVANCES
1.1 Mortgage. For valuable consideration paid and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Mortgagor hereby irrevocably and unconditionally
mortgages, grants, bargains, transfers, sells, conveys, sets over and
assigns to the Bank and its successors and assigns forever, all of
Mortgagor's right, title and interest in and to the "Property" described
below, to secure the prompt payment and performance of the Obligations
(as hereinafter defined), including without limitation, all amounts due
and owing to the Bank and all obligations respecting that certain
Revolving Term Note, dated April 20, 2009, by The Xxxxx Electronics
Corporation in favor of the Bank in the original principal amount of
$500,000.00 (the "Note"; and collectively, along with all other
agreements, documents, certificates and instruments delivered in
connection therewith, the "Loan Documents"), and any substitutions,
modifications, extensions or amendments to any of the Loan Documents.
The amount of principal obligations outstanding and evidenced by the Loan
Documents and secured by this Mortgage total $500,000.00 as of the date
of this Mortgage but this Mortgage shall nevertheless secure payment and
performance of all Obligations.
1.2 Security Interest in Property. As continuing security for the
Obligations the Mortgagor hereby pledges, assigns and grants to the Bank,
and its successors and assigns, a security interest in any of the
Property (as hereinafter defined) constituting personal property or
fixtures. This Mortgage is and shall be deemed to be a security
agreement and financing statement pursuant to the terms of the Uniform
Commercial Code of New Jersey (the "Uniform Commercial Code") as to any
and all personal property and fixtures and as to all such property the
Bank shall have the rights and remedies of a secured party under the
Uniform Commercial Code in addition to its rights hereunder. This
Mortgage constitutes a financing statement filed as a fixture filing
under Section 9-502(c) of the Uniform Commercial Code covering any
Property which now is or later may become a fixture.
1 .3 Collateral Assignment of Leases and Rents. The Mortgagor hereby
irrevocably and unconditionally assigns to the Bank, and its successors
and assigns, as collateral security for the Obligations all of the
Mortgagor's rights and benefits under any and all Leases (as hereinafter
defined) and any and all rents and other amounts now or hereafter owing
with respect to the Leases or the use or occupancy of the Property. This
collateral assignment shall be absolute and effective immediately, but
the Mortgagor shall have a license, revocable by the Bank, to continue to
collect rents owing under the Leases until an Event of Default (as
hereinafter defined) occurs and the Bank exercises its rights and
remedies to collect such rents as set forth herein.
1 .4 Conditions to Grant. The Bank shall have and hold the above
granted Property unto and to the use and benefit of the Bank, and its
successors and assigns, forever; provided, however, the conveyances,
grants and assignments contained in this Mortgage are upon the express
condition that, if Mortgagor shall irrevocably pay and perform the
Obligations in full, including, without limitation, all principal,
interest and premium thereon and other charges, if applicable, in
accordance with the terms and conditions in the Loan Documents and this
Mortgage, shall pay and perform all other Obligations as set forth in
this Mortgage and shall abide by and comply with each and every covenant
and condition set forth herein and in the Loan Documents, the
conveyances, grants and assignments contained in this Mortgage shall be
appropriately released and discharged.
1.5 Property. The term "Property," as used in this Mortgage, shall mean
that certain parcel of land and the fixtures, structures and improvements
and all personal property constituting fixtures, as that term is defined
in the Uniform Commercial Code, now or hereafter thereon located at the
Address(es), as more particularly described herein, together with: (i)
all rights now or hereafter existing, belonging, pertaining or
appurtenant thereto; (ii) all judgments, awards of damages and
settlements hereafter made as a result or in lieu of any Taking, as
hereinafter defined; (iii) all of the rights and benefits of the
Mortgagor under any present or future leases and agreements relating to
the Property, including, without limitation, rents, issues and profits,
or the use or occupancy thereof together with any extensions and renewals
thereof, specifically excluding all duties or obligations of the
Mortgagor of any kind arising thereunder (the "Leases"); and (iv) all
contracts, permits and licenses respecting the use, operation or
maintenance of the Property.
1 .6 Obligations. The term "Obligation(s)," as used in this Mortgage,
shall mean without limitation all loans, advances, indebtedness, notes,
liabilities, rate swap transactions, basis swaps, forward rate
transactions, commodity swaps, commodity options, equity or equity index
swaps, equity or equity index options, bond options, interest rate
options, foreign exchange transactions, cap transactions, floor
transactions, collar transactions, forward transactions, currency swap
transactions, cross-currency rate swap transactions, currency options and
amounts, liquidated or unliquidated, now or hereafter owing by the
Mortgagor to the Bank or any Bank Affiliate at any time, of each and
every kind, nature and description, whether arising under this Mortgage
or otherwise, and whether secured or unsecured, direct or indirect (that
is, whether the same are due directly by the Mortgagor to the Bank or any
Bank Affiliate; or are due indirectly by the Mortgagor to the Bank or any
Bank Affiliate as endorser, guarantor or other surety, or as obligor of
obligations due third persons which have been endorsed or assigned to the
Bank or any Bank Affiliate, or otherwise), absolute or contingent, due or
to become due, now existing or hereafter contracted, including, without
limitation, payment of all amounts outstanding when due pursuant to the
terms of any of the Loan Documents. Said term shall also include all
interest and other charges chargeable to the Mortgagor or due from the
Mortgagor to the Bank or any Bank Affiliate from time to time and all
advances, costs and expenses referred to in this Mortgage, including
without limitation the costs and expenses (including reasonable
attorney's fees) of enforcement of the Bank's rights hereunder or
pursuant to any document or instrument executed in connection herewith.
1 .7 Swap Agreement. The parties hereto agree that all sums that may or
shall become due and payable by the Mortgagor to the Mortgagee in
accordance with any swap agreement, whether or not such swap agreement is
directly between the Mortgagor and the Mortgagee or between the Mortgagor
and Mortgagee's affiliates, assignors or assignees shall be evidenced by
the Note, shall be secured by this Mortgage and shall constitute part of
the Obligations. The lien of this Mortgage insofar as it secured payment
of sums that may or shall become due and payable by the Mortgagor to the
Mortgagee in accordance with the swap agreement is and shall continue to
be equal in priority to the lien of this Mortgage insofar as it secures
payment of the balance of the Obligations. The parties hereto agree that,
if the Note shall be declared to be immediately due and payable as the
result of an occurrence of an Event of Default or if the Note is not paid
in full at maturity, then all sums that become available to the Mortgagee
as a result of the foreclosure of this Mortgage shall not be applied to
sums due under the swap agreement until such time as the balance of the
Obligations have been paid in full.
1.8 Cross-Collateral and Future Advances. It is the express intention
of the Mortgagor that this Mortgage secure payment and performance of all
of the Obligations, whether now existing or hereinafter incurred by
reason of future advances by the Bank or otherwise, and regardless of
whether such Obligations are or were contemplated by the parties at the
time of the granting of this Mortgage. Notice of the continuing grant of
this Mortgage shall not be required to be stated on the face of any
document evidencing any of the Obligations, nor shall such documents be
required to otherwise specify that they are secured hereby.
2. REPRESENTATIONS, WARRANTIES, COVENANTS
2.1 Representations and Warranties. The Mortgagor represents and
warrants that:
(a) This Mortgage has been duly executed and delivered by the Mortgagor
and is the legal, valid and binding obligation of the Mortgagor
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally;
(b) The Mortgagor is the sole legal owner of the Property, holding good
and marketable fee simple title to the Property, subject to no liens,
encumbrances, leases, security interests or rights of others, except as
previously agreed to by the Bank (the "Permitted Encumbrances");
(c) The Mortgagor is the sole legal owner of the entire lessor's interest
in Leases, if any, with full power and authority to encumber the Property
in the manner set forth herein, and the Mortgagor has not executed any
other assignment of Leases or any of the rights or rents arising
thereunder;
(d) As of the date hereof, there are no Hazardous Substances (as
hereinafter defined) in, on or under the Property, except as disclosed in
writing to and acknowledged by the Bank; and
(e) Each Obligation is a commercial obligation and does not represent a
loan used for personal, family or household purposes and is not a
consumer transaction.
2.2 Recording; Further Assurances. The Mortgagor covenants that it
shall, at its sole cost and expense and upon the request of the Bank,
cause this Mortgage, and each amendment, modification or supplement
hereto, to be recorded and filed in such manner and in such places, and
shall at all times comply with all such statutes and regulations as may
be required by law in order to establish, preserve and protect the
interest of the Bank in the Property and the rights of the Bank under
this Mortgage. Mortgagor will from time to time execute and deliver to
the Bank such documents, and take or cause to be taken, all such other or
further action, as the Bank may request in order to effect and confirm or
vest more securely in the Bank all rights contemplated by this Mortgage
(including, without limitation, to correct clerical errors) or to vest
more fully in, or assure to the Bank the security interest in, the
Property or to comply with applicable statute or law. To the extent
permitted by applicable law, Mortgagor authorizes the Bank to file
financing statements, continuation statements or amendments, and any such
financing statements, continuation statements or amendments may be filed
at any time in any jurisdiction. The Bank may at any time and from time
to time file financing statements, continuation statements and amendments
thereto that describe the Property as defined in this Mortgage and which
contain any other information required by Article 9 of the Uniform
Commercial Code for the sufficiency or filing office acceptance of any
financing statement, continuation statement or amendment, including
whether Mortgagor is an organization, the type of organization and any
organization identification number issued to Mortgagor; Mortgagor also
authorizes the Bank to file financing statements describing any
agricultural liens or other statutory liens held by the Bank. Mortgagor
agrees to furnish any such information to the Bank promptly upon request.
In addition, Mortgagor shall at any time and from time to time, take such
steps as the Bank may reasonably request for the Bank (i) to obtain an
acknowledgment, in form and substance satisfactory to the Bank, of any
bailee having possession of any of the Property that the bailee holds
such Property for the Bank, and (ii) otherwise to insure the continued
perfection and priority of the Bank's security interest in any of the
Property and the preservation of its rights therein. Mortgagor hereby
constitutes the Bank its attorney-in-fact to execute and file all filings
required or so requested for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; and such power, being
coupled with an interest, shall be irrevocable until this Mortgage
terminates in accordance with its terms, all Obligations are paid in full
and the Property is released.
2.3 Restrictions on the Mortgagor. The Mortgagor covenants that it will
not, nor will it permit any other person to, directly or indirectly,
without the prior written approval of the Bank in each instance:
(a) Sell, convey, assign, transfer, mortgage, pledge, hypothecate, lease
or dispose of all or any part of any legal or beneficial interest in the
Mortgagor or the Property or any part thereof or permit any of the
foregoing, except as expressly permitted by the terms of this Mortgage;
(b) Permit the use, generation, treatment, storage, release or
disposition of any oil or other material or substance constituting
hazardous waste or hazardous materials or substances under any applicable
Federal or state law, regulation or rule ("Hazardous Substances"); or
(c) Permit to be created or suffer to exist any mortgage, lien, security
interest, attachment or other encumbrance or charge on the Property or
any part thereof or interest therein (except for the Permitted
Encumbrances), including, without limitation, (i) any lien arising under
any Federal, state or local statute, rule, regulation or law pertaining
to the release or cleanup of Hazardous Substances and (ii) any mechanics'
or materialmen's lien. The Mortgagor further agrees to give the Bank
prompt written notice of the imposition, or notice, of any lien referred
to in this Section and to take any action necessary to secure the prompt
discharge or release of the same. The Mortgagor agrees to defend its
title to the Property and the Bank's interest therein against the claims
of all persons and, unless the Bank requests otherwise, to appear in and
diligently contest, at the Mortgagor's sole cost and expense, any action
or proceeding that purports to affect the Mortgagor's title to the
Property or the priority or validity of this Mortgage or the Bank's
interest hereunder.
2.4 Operation of Property. The Mortgagor covenants and agrees as
follows:
(a) The Mortgagor will not permit the Property to be used for any
unlawful or improper purpose, will at all times comply with all Federal,
state and local laws, ordinances and regulations, and the provisions of
any Lease, easement or other agreement affecting all or any part of the
Property, and will obtain and maintain all governmental or other
approvals relating to the Mortgagor, the Property or the use thereof,
including without limitation, any applicable zoning or building codes or
regulations and any laws or regulations relating to the handling,
storage, release or cleanup of Hazardous Substances, and will give prompt
written notice to the Bank of (i) any violation of any such law,
ordinance or regulation by the Mortgagor or relating to the Property,
(ii) receipt of notice from any Federal, state or local authority
alleging any such violation and (iii) the presence or release on the
Property of any Hazardous Substances;
(b) The Mortgagor will at all times keep the Property insured for such
losses or damage, in such amounts and by such companies as may be
required by law and which the Bank may require, provided that, in any
case, the Mortgagor shall maintain: (i) physical hazard insurance on an
"all risks" basis in an amount not less than l00% of the full replacement
cost of the Property; (ii) flood insurance if and as required by
applicable Federal law and as otherwise required by the Bank; (iii)
comprehensive commercial general liability insurance; (iv) rent loss and
business interruption insurance; and (v) such other insurance as the Bank
may require from time to time, including builder's risk insurance in the
case of construction loans. All policies regarding such insurance shall
be issued by companies licensed to do business in the state where the
policy is issued and also in the state where the Property is located, be
otherwise acceptable to the Bank, provide deductible amounts acceptable
to the Bank, name the Bank as mortgagee, loss payee and additional
insured, and provide that no cancellation or material modification of
such policies shall occur without at least Thirty (30) days prior written
notice to the Bank. Such policies shall include (i) a mortgage
endorsement determined by the Bank in good faith to be equivalent to the
"standard" mortgage endorsement so that the insurance, as to the interest
of the Bank, shall not be invalidated by any act or neglect of the
Mortgagor or the owner of the Property, any foreclosure or other
proceedings or notice of sale relating to the Property, any change in the
title to or ownership of the Property, or the occupation or use of the
Property for purposes more hazardous than are permitted at the date of
inception of such insurance policies; (ii) a replacement cost
endorsement; (iii) an agreed amount endorsement; (iv) a contingent
liability from operation endorsement; and (v) such other endorsements as
the Bank may request. The Mortgagor will furnish to the Bank upon request
such original policies, certificates of insurance or other evidence of
the foregoing as are acceptable to the Bank. The terms of all insurance
policies shall be such that no coinsurance provisions apply, or if a
policy does contain a coinsurance provision, the Mortgagor shall insure
the Property in an amount sufficient to prevent the application of the
coinsurance provisions;
(c) Mortgagor will not enter into or modify the Leases in any material
respect without the prior written consent of the Bank, execute any
assignment of the Leases except in favor of the Bank, or accept any
rentals under any Lease for more than one month in advance and will at
all times perform and fulfill every term and condition of the Leases;
(d) Mortgagor will at all times (i) maintain complete and accurate
records and books regarding the Property in accordance with generally
accepted accounting principles and (ii) permit the Bank and the Bank's
agents, employees and representatives, at such reasonable times as the
Bank may request, to enter and inspect the Property and such books and
records; and
(e) Mortgagor will at all times keep the Property in good and first-rate
repair and condition (damage from casualty not excepted) and will not
commit or permit any strip, waste, impairment, deterioration or
alteration of the Property or any part thereof.
2.5 Payments. The Mortgagor covenants to pay when due: all Federal,
state, municipal, real property and other taxes, betterment and
improvement assessments and other governmental levies, water rates, sewer
charges, insurance premiums and other charges on the Property, this
Mortgage or any Obligation secured hereby that could, if unpaid, result
in a lien on the Property or on any interest therein. If and when
requested by the Bank, the Mortgagor shall deposit from time to time with
the Bank sums determined by the Bank to be sufficient to pay when due the
amounts referred to in this Section. The Mortgagor shall have the right
to contest any notice, lien, encumbrance, claim, tax, charge, betterment
assessment or premium filed or asserted against or relating to the
Property; provided that it contests the same diligently and in good faith
and by proper proceedings and, at the Bank's request, provides the Bank
with adequate cash security, in the Bank's reasonable judgment, against
the enforcement thereof. The Mortgagor shall furnish to the Bank the
receipted real estate tax bills or other evidence of payment of real
estate taxes for the Property within thirty (30) days prior to the date
from which interest or penalty would accrue for nonpayment thereof. The
Mortgagor shall also furnish to the Bank evidence of all other payments
referred to above within fifteen (15) days after written request therefor
by the Bank. If Mortgagor shall fail to pay such sums, the Bank may, but
shall not be obligated to, advance such sums. Any sums so advanced by the
Bank shall be added to the Obligations, shall bear interest at the
highest rate specified in any note evidencing the Obligations, and shall
be secured by the lien of this Mortgage.
2.6 Notices: Notice of Default. The Mortgagor will deliver to the Bank,
promptly upon receipt of the same, copies of all notices or other
documents it receives that affect the Property or its use, or claim that
the Mortgagor is in default in the performance or observance of any of
the terms hereof or that the Mortgagor or any tenant is in default of any
terms of the Leases. The Mortgagor further agrees to deliver to the Bank
written notice promptly upon the occurrence of any Event of Default
hereunder or event that with the giving of notice or lapse of time, or
both, would constitute an Event of Default hereunder.
2.7 Takings. In case of any condemnation or expropriation for public
use of, or any damage by reason of the action of any public or
governmental entity or authority to, all or any part of the Property (a
"Taking"), or the commencement of any proceedings or negotiations that
might result in a Taking, the Mortgagor shall immediately give written
notice to the Bank, describing the nature and extent thereof. The Bank
may, at its option, appear in any proceeding for a Taking or any
negotiations relating to a Taking and the Mortgagor shall immediately
give to the Bank copies of all notices, pleadings, determinations and
other papers relating thereto. The Mortgagor shall in good faith and with
due diligence and by proper proceedings file and prosecute its claims for
any award or payment on account of any Taking. The Mortgagor shall not
settle any such claim without the Bank's prior written consent. The
Mortgagor shall hold any amounts received with respect to such awards or
claims, by settlement, judicial decree or otherwise, in trust for the
Bank and immediately pay the same to the Bank. The Mortgagor authorizes
any award or settlement due in connection with a Taking to be paid
directly to the Bank in amounts not exceeding the Obligations. The Bank
may apply such amounts to the Obligations in such order as the Bank may
determine.
2.8 Insurance Proceeds. The proceeds of any insurance resulting from
any loss with respect to the Property shall be paid to the Bank and, at
the option of the Bank, be applied to the Obligations in such order as
the Bank may determine; provided, however, that if the Bank shall require
repair of the Property, the Bank may release all or any portion of such
proceeds to the Mortgagor for such purpose. Any insurance proceeds paid
to the Mortgagor shall be held in trust for the Bank and promptly paid to
it.
3. CERTAIN RIGHTS OF THE BANK
3.1 Legal Proceedings. The Bank shall have the right, but not the duty,
to intervene or otherwise participate in any legal or equitable
proceeding that, in the Bank's reasonable judgment, might affect the
Property or any of the rights created or secured by this Mortgage. The
Bank shall have such right whether or not there shall have occurred an
Event of Default hereunder.
3.2 Appraisals/Assessments. The Bank shall have the right, at the
Mortgagor's sole cost and expense, to obtain appraisals, environmental
site assessments or other inspections of the portions of the Property
that are real estate at such times as the Bank deems necessary or as may
be required by applicable law, or its prevailing credit or underwriting
policies.
3.3 Financial Statements. The Bank shall have the right, at the
Mortgagor's sole cost and expense, to require delivery of financial
statements in form and substance acceptable to the Bank from the
Mortgagor or any guarantor of any of the Obligations and the Mortgagor
hereby agrees to deliver such financial statements and/or cause any such
guarantor to so deliver any such financial statement when required by the
Bank.
3.4 Leases and Rent Roll. The Mortgagor shall deliver to the Bank (i)
at such other times as the Bank shall request a rent roll for the
Property, in form acceptable to the Bank, listing all tenants and
occupants and describing all of the Leases; and (ii) at such times as the
Bank shall request executed copies of all the Leases.
4. DEFAULTS AND REMEDIES
4.1 Events of Default. Event of Default shall mean the occurrence of any
one or more of the following events:
(a) default of any liability, obligation, covenant or undertaking of the
Mortgagor or any guarantor of the Obligations to the Bank, hereunder or
otherwise, including, without limitation, failure to pay in full and when
due any installment of principal or interest or default of the Mortgagor
or any guarantor of the Obligations under any other Loan Document or any
other agreement with the Bank;
(b) failure by the Mortgagor to perform, observe or comply with any of
the covenants, agreements, terms or conditions set forth in this Mortgage
or the Loan Documents;
(c) the (i) occurrence of any material loss, theft, damage or destruction
of, or (ii) issuance or making of any levy, seizure, attachment,
execution or similar process on a material portion of the Property;
(d) failure of the Mortgagor or any guarantor of the Obligations to
maintain aggregate collateral security value satisfactory to the Bank;
(e) default of any material liability, obligation or undertaking of the
Mortgagor or any guarantor of the Obligations to any other party;
(f) if any statement, representation or warranty heretofore, now or
hereafter made by the Mortgagor or any guarantor of the Obligations in
connection with this Mortgage or in any supporting financial statement of
the Mortgagor or any guarantor of the Obligations shall be determined by
the Bank to have been false or misleading in any material respect when
made;
(g) if the Mortgagor or any guarantor of the Obligations is a
corporation, trust, partnership or limited liability company, the
liquidation, termination or dissolution of any such organization, or the
merger or consolidation of such organization into another entity, or its
ceasing to carry on actively its present business or the appointment of a
receiver for its property;
(h) the death of the Mortgagor or any guarantor of the Obligations and,
if the Mortgagor or any guarantor of the Obligations is a partnership or
limited liability company, the death of any partner or member;
(i) the institution by or against the Mortgagor or any guarantor of the
Obligations of any proceedings under the Bankruptcy Code 11 USC SS101 et
seq. or any other law in which the Mortgagor or any guarantor of the
Obligations is alleged to be insolvent or unable to pay its debts as they
mature, or the making by the Mortgagor or any guarantor of the
Obligations of an assignment for the benefit of creditors or the granting
by the Mortgagor or any guarantor of the Obligations of a trust mortgage
for the benefit of creditors;
(j) the service upon the Bank of a writ in which the Bank is named as
trustee of the Mortgagor or any guarantor of the Obligations;
(k) a judgment or judgments for the payment of money shall be rendered
against the Mortgagor or any guarantor of the Obligations, and any such
judgment shall remain unsatisfied and in effect for any period of thirty
(30) consecutive days without a stay of execution;
(l) any xxxx, xxxx (including mechanics lien), seizure, attachment,
execution or similar process shall be issued or levied on any of the
property of the Mortgagor or any guarantor of the Obligations;
(m) the termination or revocation of any guaranty of the Obligations; or
(n) the occurrence of such a change in the condition or affairs
(financial or otherwise) of the Mortgagor or any guarantor of the
Obligations, or the occurrence of any other event or circumstance, such
that the Bank, in its sole discretion, deems that it is insecure or that
the prospects for timely or full payment or performance of any obligation
of the Mortgagor or any guarantor of the Obligations to the Bank has been
or may be impaired.
4.2 Remedies. On the occurrence of any Event of Default the Bank may,
at any time thereafter, at its option and, to the extent permitted by
applicable law, without notice, exercise any or all of the following
remedies:
(a) Declare the Obligations due and payable, and the Obligations shall
thereupon become immediately due and payable, without presentment,
protest, demand or notice of any kind, all of which are hereby expressly
waived by the Mortgagor except for Obligations due and payable on demand,
which shall be due and payable on demand whether or not an event of
default has occurred hereunder;
(b) Enter, take possession of, manage and operate the Property (including
all personal property and all records and documents pertaining thereto)
and any part thereof and exclude the Mortgagor therefrom, take all
actions it deems necessary or proper to preserve the Property and operate
the Property as a mortgagee in possession with all the powers as could be
exercised by a receiver or as otherwise provided herein or by applicable
law; provided, however, the entry by the Bank upon the Property for any
reason shall not cause the Bank to be a mortgagee in possession, except
upon the express written declaration of the Bank;
(c) With or without taking possession, receive and collect all rents,
income, issues and profits ("Rents') from the Property (including all
real estate and personal property and whether past due or thereafter
accruing), including as may arise under the Leases, and the Mortgagor
appoints the Bank as its true and lawful attorney with the power for the
Bank in its own name and capacity to demand and collect Rents and take
any action that the Mortgagor is authorized to take under the Leases. The
Bank shall (after payment of all costs and expenses incurred) apply any
Rents received by it to the Obligations in such order as the Bank
determines, or in accordance with any applicable statute, and the
Mortgagor agrees that exercise of such rights and disposition of such
funds shall not be deemed to cure any default or constitute a waiver of
any foreclosure once commenced nor preclude the later commencement of
foreclosure for breach thereof. The Bank shall be liable to account only
for such Rents actually received by the Bank. Lessees under the Leases
are hereby authorized and directed, following notice from the Bank, to
pay all amounts due the Mortgagor under the Leases to the Bank, whereupon
such lessees shall be relieved of any and all duty and obligation to the
Mortgagor with respect to such payments so made;
(d) In addition to any other remedies, to sell the Property or any part
thereof or interest therein pursuant to exercise of its power of sale or
otherwise at public auction on terms and conditions as the Bank may
determine, or otherwise foreclose this Mortgage in any manner permitted
by law, and upon such sale the Mortgagor shall execute and deliver such
instruments as the Bank may request in order to convey and transfer all
of the Mortgagor's interest in the Property, and the same shall operate
to divest all rights, title and interest of the Mortgagor in and to the
Property. In the event this Mortgage shall include more than one parcel
of property or subdivision (each hereinafter called a "portion"), the
Bank shall, in its sole and exclusive discretion and to the extent
permitted by applicable law, be empowered to foreclose upon any such
portion without impairing its right to foreclose subsequently upon any
other portion or the entirety of the Property from time to time
thereafter. In addition, the Bank may in its sole and exclusive
discretion subordinate this Mortgage to one or more Leases for the sole
purpose of preserving any such Lease in the event of a foreclosure;
(e) Cause one or more environmental assessments to be taken, arrange for
the cleanup of any Hazardous Substances or otherwise cure the Mortgagor's
failure to comply with any statute, regulation or ordinance relating to
the presence or cleanup of Hazardous Substances, and the Mortgagor shall
provide the Bank or its agents with access to the Property for such
purposes; provided that the exercise of any of such remedies shall not be
deemed to have relieved the Mortgagor from any responsibility therefor or
given the Bank "control" over the Property or cause the Bank to be
considered to be a mortgagee in possession, "owner' or "operator" of the
Property for purposes of any applicable law, rule or regulation
pertaining to Hazardous Substances; and
(f) Take such other actions or proceedings as the Bank deems necessary or
advisable to protect its interest in the Property and ensure payment and
performance of the Obligations, including, without limitation,
appointment of a receiver (and the Mortgagor hereby waives any right to
object to such appointment) and exercise of any of the Bank's remedies
provided herein or in any other document evidencing, securing or relating
to any of the Obligations or available to a secured party under the
Uniform Commercial Code or under other applicable law.
In addition, the Bank shall have all other remedies provided by
applicable law, including, without limitation, the right to pursue a
judicial sale of the Property or any portion thereof by deed, assignment
or otherwise.
The Mortgagor agrees and acknowledges that the acceptance by the Bank of
any payments from either the Mortgagor or any guarantor after the
occurrence of any Event of Default, the exercise by the Bank of any
remedy set forth herein or the commencement, discontinuance or
abandonment of foreclosure proceedings against the Property shall not
waive the Bank's subsequent or concurrent right to foreclose or operate
as a bar or estoppel to the exercise of any other rights or remedies of
the Bank. The Mortgagor agrees and acknowledges that the Bank, by making
payments or incurring costs described herein, shall be subrogated to any
right of the Mortgagor to seek reimbursement from any third parties,
including, without limitation, any predecessor in interest to the
Mortgagor's title or other party who may be responsible under any law,
regulation or ordinance relating to the presence or cleanup of Hazardous
Substances.
4.3 Advances. If the Mortgagor fails to pay or perform any of its
obligations respecting the Property, the Bank may in its sole discretion
do so without waiving or releasing Mortgagor from any such obligation.
Any such payments may include, but are not limited to, payments for
taxes, assessments and other governmental levies, water rates, insurance
premiums, maintenance, repairs or improvements constituting part of the
Property. Any amounts paid by the Bank hereunder shall be, until
reimbursed by the Mortgagor, part of the Obligations and secured by this
Mortgage, and shall be due and payable to the Bank, on demand, together
with interest thereon to the extent permitted by applicable law, at the
highest rate permitted under any of the notes evidencing the Obligations.
4.4 Cumulative Rights and Remedies. All of the foregoing rights,
remedies and options (including without limitation the right to enter and
take possession of the Property, the right to manage and operate the
same, and the right to collect Rents, in each case whether by a receiver
or otherwise) are cumulative and in addition to any rights the Bank might
otherwise have, whether at law or by agreement, and may be exercised
separately or concurrently and none of which shall be exclusive of any
other. The Mortgagor further agrees that the Bank may exercise any or all
of its rights or remedies set forth herein without having to pay the
Mortgagor any sums for use or occupancy of the Property.
4.5 Mortgagor's Waiver of Certain Rights. To the extent permitted by
applicable law, the Mortgagor hereby waives the benefit of all present
and future laws (i) providing for any appraisal before sale of all or any
portion of the Property or (ii) in any way extending the time for the
enforcement of the collection of the Obligations or creating or extending
a period of redemption from any sale made hereunder.
5. MISCELLANEOUS
5.1 Costs and Expenses. To the extent permitted by applicable law, the
Mortgagor shall pay to the Bank, on demand, all reasonable expenses
(including attorneys' fees and expenses and reasonable consulting,
accounting, appraisal, brokerage and similar professional fees and
charges) incurred by the Bank in connection with the Bank's
interpretation, recordation of this Mortgage, exercise, preservation or
enforcement of any of its rights, remedies and options set forth in this
Mortgage and in connection with any litigation, proceeding or dispute
whether arising hereunder or otherwise relating to the Obligations,
together with interest thereon to the extent permitted by applicable law,
until paid in full by the mortgagor at the highest rate set forth in any
of the notes evidencing the Obligations. Any amounts owed by the
Mortgagor hereunder shall be, until paid, part of the Obligations and
secured by this Mortgage, and the Bank shall be entitled, to the extent
permitted by law, to receive and retain such amounts in any action for a
deficiency against or redemption by the Mortgagor, or any accounting for
the proceeds of a foreclosure sale or of insurance proceeds.
5.2 Survival of Claims for Costs and Expenses. It is the parties'
intent that the Bank's claim for legal fees, taxes and expenses,
including without limitation all costs and insurance premiums, shall
survive the entry of a foreclosure judgment. If Bank employs counsel for
advice or representation after an Event of Default (whether or not
formally declared) relating to the collection or enforcement of this
Mortgage, the Note or other Loan Documents or Obligations (whether or not
suit is actually instituted), Bank may collect from Mortgagor all of
Bank's reasonable expenses and fees, including, without limitation: (a)
all reasonable fees and disbursements of counsel to Bank (whether pre-
judgment or post-judgment or both, as applicable); (b) all expenses of or
in anticipation of litigation, including fees and expenses of witnesses,
experts, stenographers, title and lien searchers; and (c) costs incurred
by Bank in performing any duty or obligation on behalf of Mortgagor,
including payment of any tax, government charge or insurance premium,
making repairs to the Property, rendering the Property free of hazardous
substances or liens or performing any lien obligation. The expenses
incurred by Bank in performing any of Mortgagor's duties or obligations
shall be added to the monies owing under the Note with interest at the
rate in effect from time to time under the Note. All such sums shall be
secured by this Mortgage and all collateral given to secure any
Obligation. Any action taken by Bank pursuant to this section shall not
constitute a waiver of any Event of Default or undertaking to perform or
complete any of Mortgagor's duties nor shall it impose any future
responsibility on Bank to perform any of Mortgagor's duties in the
future.
5.3 Indemnification Regarding Leases. The Mortgagor hereby agrees to
defend, and does hereby indemnify and hold the Bank and each of its
directors, officers, employees, agents and attorneys (each an
"Indemnitee") harmless from all losses, damages, claims, costs or
expenses (including attorneys' fees and expenses) resulting from the
assignment of the Leases and from all demands that may be asserted
against such indemnitees arising from any undertakings on the part of the
Bank to perform any obligations under the Leases. It is understood that
the assignment of the Leases shall not operate to place responsibility
for the control or management of the Property upon the Bank or any
Indemnitee or make them liable for performance of any of the obligations
of the Mortgagor under Leases, respecting any condition of the Property
or any other agreement or arrangement, written or oral, or applicable
law.
5.4 Indemnification Regarding Hazardous Substances. The Mortgagor
hereby agrees to defend, and does hereby indemnify and hold harmless each
Indemnitee from and against any and all losses, damages, claims, costs or
expenses, including, without limitation, litigation costs and attorneys'
fees and expenses and fees or expenses of any environmental engineering
or cleanup firm incurred by such indemnitee and arising out of or in
connection with the Property or resulting from the application of any
current or future law, regulation or ordinance relating to the presence
or cleanup of Hazardous Substances on or affecting the Property. The
Mortgagor agrees its obligations hereunder shall be continuous and shall
survive termination or discharge of this Mortgage and/or the repayment of
all debts to the Bank including repayment of all Obligations.
5.5 Indemnitee's Expenses. If any indemnitee is made a party defendant
to any litigation or any claim is threatened or brought against such
Indemnitee concerning this Mortgage or the Property or any part thereof
or therein or concerning the construction, maintenance, operation or the
occupancy or use thereof by the Mortgagor or other person or entity, then
the Mortgagor shall indemnify, defend and hold each Indemnitee harmless
from and against all liability by reason of said litigation or claims,
including attorneys' fees and expenses incurred by such Indemnitee in
connection with any such litigation or claim, whether or not any such
litigation or claim is prosecuted to judgment. The within indemnification
shall survive payment of the Obligations, and/or any termination, release
or discharge executed by the Bank in favor of the Mortgagor.
5.6 Waivers. The Mortgagor waives notice of nonpayment, demand,
presentment, protest or notice of protest of the Obligations and all
other notices, consents to any renewals or extensions of time of payment
thereof, and generally waives any and all suretyship defenses and
defenses in the nature thereof. No delay or omission of the Bank in
exercising or enforcing any of its rights, powers, privileges, remedies,
immunities or discretion (all of which are hereinafter collectively
referred to as 'the Bank's rights and remedies') hereunder shall
constitute a waiver thereof; and no waiver by the Bank of any default of
the Mortgagor hereunder or of any demand shall operate as a waiver of any
other default hereunder or of any other demand. No term or provision
hereof shall be waived, altered or modified except with the prior written
consent of the Bank, which consent makes explicit reference to this
Mortgage. Except as provided in the preceding sentence, no other
agreement or transaction, of whatsoever nature, entered into between the
Bank and the Mortgagor at any time (whether before, during or after the
effective date or term of this Mortgage) shall be construed as a waiver,
modification or limitation of any of the Bank's rights and remedies under
this Mortgage (nor shall anything in this Mortgage be construed as a
waiver, modification or limitation of any of the Bank's rights and
remedies under any such other agreement or transaction) but all the
Bank's rights and remedies not only under the provisions of this Mortgage
but also under any such other agreement or transaction shall be
cumulative and not alternative or exclusive, and may be exercised by the
Bank at such time or times and in such order of preference as the Bank in
its sole discretion may determine.
5.7 Waiver of Homestead. To the maximum extent permitted under
applicable law, the Mortgagor hereby waives and terminates any homestead
rights and/or exemptions respecting the Property under the provisions of
any applicable homestead laws, including, without limitation,
N.J.S.A.54:4-8.57.
5.8 Joint and Several. If there is more than one Mortgagor, each of
them shall be jointly and severally liable for payment and/or performance
of all obligations secured by this Mortgage and the term "Mortgagor"
shall include each as well as all of them.
5.9 Severability. If any provision of this Mortgage or portion of such
provision or the application thereof to any person or circumstance shall
to any extent be held invalid or unenforceable, the remainder of this
Mortgage (or the remainder of such provision) and the application thereof
to other persons or circumstances shall not be affected thereby.
5.10 Complete Agreement. This Mortgage and the other Loan Documents
constitute the entire agreement and understanding between and among the
parties hereto relating to the subject matter hereof, and supersedes all
prior proposals, negotiations, agreements and understandings among the
parties hereto with respect to such subject matter.
5.11 Binding Effect of Agreement. This Mortgage shall run with the land
and be binding upon and inure to the benefit of the respective heirs,
executors, administrators, legal representatives, successors and assigns
of the parties hereto, and shall remain in full force and effect (and the
Bank shall be entitled to rely thereon) until all Obligations are fully
and indefeasibly paid. The Bank may transfer and assign this Mortgage and
deliver any collateral to the assignee, who shall thereupon have all of
the rights of the Bank; and the Bank shall then be relieved and
discharged of any responsibility or liability with respect to this
Mortgage and such collateral. Except as expressly provided herein or in
the other Loan Documents, nothing, expressed or implied, is intended to
confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this Mortgage
or the other Loan Documents.
5.12 Notices. Any notices under or pursuant to this Mortgage shall be
deemed duly received and effective if delivered in hand to any officer of
agent of the Mortgagor or Bank, or if mailed by registered or certified
mail, return receipt requested, addressed to the Mortgagor or Bank at the
address set forth in this Mortgage or as any party may from time to time
designate by written notice to the other party; notwithstanding the
foregoing notices to the Bank with respect to accounting and collateral
release and notices to the Trustee pursuant to a Deed of Trust shall be
sent to the Bank as follows: Attention: VP Loan Servicing, Loan Services,
0000 Xxxxxx Xxx, Xx. Xxxxxx XX 00000.
5.13 Governing Law. This Mortgage shall be governed by New Jersey law
without giving effect to the conflicts of laws principles thereof.
5.14 Reproductions. This Mortgage and all documents which have been or
may be hereinafter furnished by the Mortgagor to the Bank may be
reproduced by the Bank by any photographic, photostatic, microfilm,
xerographic or similar process, and any such reproduction shall be
admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence
and whether or not such reproduction was made in the regular course of
business).
5.15 Bank Affiliates. The term "Bank Affiliate" as used in this
Mortgage shall mean any "Affiliate" of the Bank. The term "Affiliate"
shall mean with respect to any person, (a) any person which, directly or
indirectly through one or more intermediaries controls, or is controlled
by, or is under common control with, such person, or (b) any person who
is a director or officer (i) of such person, (ii) of any subsidiary of
such person, or (iii) any person described in clause (a) above. For
purposes of this definition, control of a person shall mean the power,
direct or indirect, (x) to vote 5% or more of the Capital Stock having
ordinary voting power for the election of directors (or comparable
equivalent) of such person, or (y) to direct or cause the direction of
the management and policies of such person whether by contract or
otherwise. Control may be by ownership, contract, or otherwise.
5.16 Jurisdiction and Venue. The Mortgagor irrevocably submits to the
nonexclusive jurisdiction of any Federal or state court sitting in New
Jersey, over any suit, action or proceeding arising out of or relating to
this Mortgage. The Mortgagor irrevocably waives, to the fullest extent it
may effectively do so under applicable law, any objection it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that the same has been
brought in an inconvenient forum. The Mortgagor hereby consents to
process being served in any such suit, action or proceeding (i) by the
mailing of a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to the Mortgagor's address set forth
herein or such other address as has been provided in writing to the Bank
and (ii) in any other manner permitted by law, and agrees that such
service shall in every respect be deemed effective service upon the
Mortgagor.
5.17 JURY WAIVER. THE MORTGAGOR AND THE BANK EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH
LEGAL COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING IN CONNECTION WITH THIS MORTGAGE, THE OBLIGATIONS,
ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION
HEREWITH AND (B) AGREE NOT TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS NOT BEEN WAIVED. THE
MORTGAGOR CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES,
AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK
WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO TRIAL BY JURY.
5.18 COPY OF MORTGAGE. MORTGAGOR ACKNOWLEDGES THAT MORTGAGOR HAS
RECEIVED A COPY OF THIS MORTGAGE AT NO ADDITIONAL COST.
EXECUTED under seal as of the date first above written.
Witness: Mortgagor:
Xxxxxx Xxxxxxx By: /s/ Xxxx Xxxxx, President and CEO
Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxx, Treasurer
STATE OF NEW JERSEY
COUNTY OF PASSAIC
On this, 24th day of April, 2009, before me, a Notary Public, personally
appeared Xxxx Xxxxx, known to me (or satisfactorily proven) to be the
person described in the foregoing instrument, who acknowledged
himself/herself to be the President and CEO of The Xxxxx Electronics
Corporation, a New York Corporation, and that he/she as such President
and CEO, being authorized to do so, executed the foregoing instrument on
behalf of The Xxxxx Electronics Corporation as the act of The Xxxxx
Electronics Corporation.
IN WITNESS WHEREOF, I HEREUNTO SET MY HAND AND OFFICIAL SEAL.
/s/Xxxxx X. Xxxxxxx
NOTARY PUBLIC
MY COMMISSION EXPIRES: March 23, 0000
XXXXX XX XXX XXXXXX
XXXXXX XX XXXXXXX
Xx this, the 24th day of April 2009 before me, a Notary Public,
personally appeared Xxxxxxx X. Xxxxx, known to me (or satisfactorily
proven) to be the person described in the foregoing instrument, who
acknowledged himself/herself to be the Treasurer of The Xxxxx Electronics
Corporation, a New York Corporation, and that he/she as such Treasurer,
being authorized to do so, executed the foregoing instrument on behalf of
The Xxxxx Electronics Corporation as the act of The Xxxxx Electronics
Corporation.
IN WITNESS WHEREOF, I HEREUNTO SET MY HAND AND OFFICIAL SEAL.
/s/ Xxxxx X. Xxxxxxx
NOTARY PUBLIC
MY COMMISSION EXPIRES: March 23, 2012
