MORTGAGE NOTE
Rochester, New York $375,000.00
June 30, 1997
FOR VALUE RECEIVED, the undersigned, V & K ASSOCIATES, 000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (the "Borrower" or "Mortgagor"),
promises to pay to the order of FIRST NATIONAL BANK OF ROCHESTER (the "Bank" or
"Mortgagee"), a national banking association with its principal office at 00
Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 in lawful money of the United States and
in immediately available funds, the sum of Three Hundred Seventy Five Thousand
Dollars ($375,000.00) (the "Principal Sum") and interest on the unpaid portion
of the Principal Sum as provided below (collectively the "Loan").
DEFINITIONS
As used in this Note, the following capitalized terms shall have the
meanings set forth below:
"Holder" means the Holder of this Note.
"Loan Documents" mean this Note and the Mortgage secured thereby, and
all documentation collateral thereto.
"Maturity Date" means June 30, 2007.
"Mortgage" means the Mortgage of even date herewith securing
this Note.
"Person" means any individual, partnership, corporation, trust or
unincorporated organization, and any government agency or political
subdivision or branch thereof.
"Premises" means certain real property owned by Xxxxxxxxx located at
0-00 Xxxx Xxxx Xxxxxx, Xxxx xxx Xxxxxxx xx Xxxxxx, Xxxxxxx Xxxxxx, Xxx
Xxxx.
"Taxes" mean all real estate and similar taxes and assessments
(including assessments for local or municipal improvements and payments
in lieu of taxes), personal property taxes and assessments, sales, use
and occupancy taxes, water and sewer rates, rents and charges, water
pollution control charges, charges for public utilities, fees for
governmental approvals, and all other governmental charges and fees, of
any kind and nature whatsoever, which may at any time during the term
of the Loan be assessed or levied against or imposed upon or be payable
with respect to or become a lien on the Premises or any part thereof.
PAYMENT TERMS
(a) During the first five (5) years of the term of the Loan, interest
shall accrue on the Principal Sum or so much thereof as is outstanding from time
to time at the rate of 9.00% per annum. On the 1st day of August, 1997 and on
the 1st day of each and every month thereafter to and including July 1, 2002,
Xxxxxxxxx shall make a constant monthly payment of principal and interest in the
amount of Three Thousand Eight Hundred Three and 50/100 Dollars ($3,803.50), an
amount which would result in the Principal Sum and interest being amortized in a
fifteen (15) year period commencing on the date hereof.
(b) On the fifth anniversary of the date hereof the interest rate shall
be modified to a rate two and three-quarters percent (2.75%) per annum higher
than the weekly average yield on United States Treasury Securities adjusted to a
constant maturity of five years (5), as made available by the Federal Reserve
Board for the week immediately prior to said fifth anniversary, or if such yield
is not so published, a similar rate based on a comparable index chosen by the
Bank in its sole discretion; the interest rate shall be so fixed at and accrue
on the Principal Sum or so much thereof as is outstanding from time to time at
such modified rate until the Maturity Date.
(c) During the final five (5) year period of the term of the Loan
described in paragraph (b) preceding, the Borrower shall pay the Principal Sum
and interest owing pursuant to this Note in monthly installments of principal
and interest, due on the first day of each month, through and including June 1,
2007. Each of such installments shall be in the amount that would result in the
outstanding Principal Sum and interest at the then applicable rate being
amortized in the fifteen (15) year period commencing on the date hereof, with
the principal and interest payment being readjusted as of the first day of the
second month following the above interest rate adjustment in order to fully
amortize the loan over the months remaining in the term.
(d) There shall be no negative amortization. Interest shall be computed
for the actual number of days elapsed on the basis of a year consisting of 360
days.
(e) Notwithstanding anything else herein, if not sooner paid, the
entire unpaid Principal Sum and accrued and unpaid interest shall be all due and
payable on the Maturity Date.
PREPAYMENT
The Mortgagor shall have the option of paying the Loan to the Holder in
advance in full or in part at any time and from time to time with any regular
payment upon written notice received by the Holder at least 30 days prior to
making such payment; provided, however, that upon making any such payment in
full, the Mortgagor shall pay to the Holder all interest and all other amounts
owing pursuant to this Note and remaining unpaid, and together with any such
payment in full the Mortgagor shall pay to the Holder (a) a premium equal to 5%
of the amount prepaid if paid on or after the date hereof and before June 30,
1998, (b) a premium equal to 4% of the amount prepaid if paid on or after June
30, 1998, and before June 30, 1999, (c) a premium equal to 3% of the amount
prepaid if paid on or after June 30, 1999, and before June 30, 2000, (d) a
premium equal to 2% of the amount prepaid if paid on or after June 30, 2000, and
before June 30, 2001, and (e) a premium equal to 1% of the amount prepaid if
paid on or after June 30, 2001, and before the Maturity Date. In the event the
Maturity Date of this Note is accelerated following a default by the Mortgagor,
any tender of payment of the amount necessary to satisfy the entire indebtedness
made after such default shall be expressly deemed a voluntary payment. In such a
case, to the extent permitted by law, the Holder shall be entitled to the amount
necessary to satisfy the entire indebtedness plus the appropriate prepayment
premium in accordance with the terms of this Note. Regardless of when paid, any
such payment in part shall be applied to principal included in the installments
provided for herein in the inverse order of such installments becoming due.
TAX ESCROW
In order to more fully protect the security of this Mortgage, the
Mortgagor shall deposit with the Mortgagee concurrently with payments of
interest and principal and in addition thereto on each monthly due date as set
forth above after the date hereof until this Note is fully paid, a sum equal to
the Taxes due on the premises (all as estimated annually by the Mortgagee) less
all sums already deposited therefor divided by the number of months to elapse
before one month prior to the date when such Taxes will become due, such sums to
be held by the Mortgagee to pay said items, without payment of interest to
Mortgagor on such sums held by Bank. All payments calculated as aforesaid in the
preceding portion of this paragraph and all payments of principal and interest
shall be added together and the aggregate amount thereof shall be paid by the
Mortgagor each month in a single payment to be applied by the Mortgagor to the
following items in the order set forth: (a) Taxes, (b) late payment charges, (c)
interest; (d) principal. Any deficiency in the amount of such aggregate monthly
payment shall, unless paid prior to the due date of the next such payment,
constitute a default under this mortgage, whereupon at the option of the
Mortgagee the whole of the principal sum and any other sums of money secured by
this Mortgage shall forthwith or thereafter become due and payable.
PLACE OF PAYMENT
All payments of principal and interest required to be made hereunder,
and all other sums due hereunder, shall be payable to Mortgagee at 00 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 or at such other office or place as Mortgagee
may designate in writing.
LATE PAYMENT CHARGE
If the Borrower defaults in the making of any payment owing pursuant to
this Note for more than ten (10) days after due, the Borrower shall immediately
pay to the Holder of this Note a late charge equal to Fifty Dollars ($50.00), or
6% of the total of such payment due, whichever is greater.
EVENT OF DEFAULT
The payment of this Note is secured by the Mortgage. Upon or at any
time or from time to time after the occurrence or existence of any event or
condition specified in this Note or the Mortgage as an Event of Default and the
passage of any applicable grace period in connection therewith, all amounts
owing pursuant to this Note shall, at the sole option of the Holder and without
any notice, demand, presentment or protest of any kind (each of which is waived
by the Borrower), become immediately due. Without limitation thereto by the
specification thereof, either of the following shall be deemed events of
default:(i) any transfer of any legal or equitable interest in the Borrower or
the Premises or any portion thereof without the Bank's prior written consent,
which may be withheld in its sole and absolute discretion; or (ii) the placement
of any other mortgage, security interest, or other lien or encumbrance on the
Premises or any portion thereof without the Bank's prior written consent, which
may be withheld in its sole and absolute discretion. Acceptance of payments by
the Mortgagee subsequent to any such conveyance, transfer, or encumbering shall
not be deemed a waiver of any of the Mortgagee's rights.
DEBT SERVICE COVERAGE RATIO
At all times, the net operating income from all leases of the Premises
must be sufficient so that the Debt Service Coverage Ratio (net operating income
defined below, divided by annual principal and interest payments on the Loan)
shall be at least 1.2:1. If the Debt Service Coverage Ration falls below 1.2 at
any time, the Bank shall have the option to demand payment of the entire
Principal Sum and all accrued interest in full, or at the Bank's option, to
allow Borrower to pay down principal (without penalty) to a level acceptable to
Bank. Net Operating Income is defined as annual rental income available after
payment of annual real estate taxes, utilities, management fees, repairs,
maintenance, property insurance, reasonable salaries, reasonable administrative
expenses, and other normal operating expenses, exclusive of depreciation,
amortization, and interest expense.
POST-MATURITY DATE AND DEFAULT RATE
On each day subsequent to the Maturity Date or an event of default,
whether by acceleration or otherwise, the Borrower shall pay interest on the
outstanding Principal Sum at a rate per year equal to 3% above the rate
otherwise applicable during the term of the loan immediately prior to said
Maturity Date or event of default, provided, however, that (i) in no event shall
such interest be payable at a rate in excess of the maximum rate permitted by
applicable law and (ii) solely to the extent necessary to result in such
interest not being payable at a rate in excess of such maximum rate, any amount
that would be treated as part of such interest under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically cancelled, and, if received by the Bank, shall be refunded to the
Borrower, it being the intention of the Bank and of the Borrower that such
interest not be payable at a rate in excess of such maximum rate.
MORTGAGOR TO PAY EXPENSES
The Borrower shall pay to the Holder on demand each cost and expense
(including, but not limited to, the reasonable fees and disbursements of counsel
to the Holder, whether retained for advice, for litigation or for any other
purpose) incurred by the Holder, in endeavoring to (1) collect any amount owing
pursuant to this Note, (2) enforce, or realize upon, any guaranty, endorsement
or other assurance, any collateral or other security or any subordination,
directly or indirectly securing, or otherwise directly or indirectly applicable
to, any such amount or (3) preserve or exercise any right or remedy of the
Holder pursuant to this Note.
WAIVERS AND CONSENTS
To the extent permitted by law, Mortgagor (a) waives and renounces any
and all exemption rights and the benefit of all valuation and appraisal
privileges as against the indebtedness secured by the Mortgage or any renewal or
extension thereof, (b) waives presentment or payment, demand, protest, notice of
protest and notice of dishonor and any and all lack of diligence or delays in
the collection or enforcement of said indebtedness, (c) waives the right to
assert in any Foreclosure Action any defense based upon or relating to the
failure by Mortgagee to produce and/or introduce into evidence in such action
any of the notes, bonds or other obligations which are secured by the Mortgage
other than this Note and (d) consents to any extension of time, release of any
collateral securing this Note, acceptance of other collateral therefor, or any
other indulgence or forbearance whatsoever. Any such extension, release,
acceptance, indulgence or forbearance may be made, to the extent permitted by
law, without notice to Mortgagor.
COMPLIANCE WITH USURY REQUIREMENTS
This Note is subject to the express condition that at no time shall
Mortgagor be obligated or required to pay interest on the principal amount of
the Loan at a rate which could subject Mortgagee to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Mortgagor is permitted by law to contract or agree to pay. If by the terms of
this Note Mortgagor would at any time be required or obligated to pay interest
at a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and the interest
payable thereafter shall be computed at a rate not to exceed such maximum rate
and all previous payments in excess of such maximum rate shall be deemed to have
been payments in reduction of the principal balance of the Loan instead of
payments of interest thereon.
MODIFICATIONS AND AMENDMENTS
No change, amendment, modification, cancellation or discharge of this
Note, or of any part hereof, shall be valid unless Mortgagee shall have
consented thereto in writing.
SUCCESSORS AND ASSIGNS
The covenants and obligations of this Note shall be binding upon
Mortgagor, its successors and assigns and shall inure to the benefit of
Mortgagee, its successors and assigns and all subsequent holders of the
Mortgage.
FINANCIAL STATEMENTS
Mortgagor shall provide the Bank with annual financial statements
satisfactory to the Bank of "Review" quality and prepared by an independent
Certified Public Accountant, to be submitted annually to the Bank within 120
days after the end of each fiscal year of Mortgagor.
GOVERNING LAW
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
WAIVER OF TRIAL BY JURY
TO THE EXTENT PERMITTED BY LAW, XXXXXXXXX XXXXXX THE RIGHT TO TRIAL BY
JURY IN ANY FORECLOSURE ACTION.
IN WITNESS WHEREOF, Xxxxxxxxx has caused this Note to be duly executed
as of the day and year first above written.
V & K ASSOCIATES
BY: S/ Xxxxxxx X. Xxxxxx
-----------------------------------
XXXXXXX X. XXXXXX, General Partner
CONTINUING UNLIMITED GUARANTY
In consideration of any extension of credit by FIRST NATIONAL
BANK OF ROCHESTER, (hereinafter called "Bank") to V & K Associates (hereinafter
called "Customer"), either alone or with one or more persons or any extension or
renewal of any or all of the indebtedness hereinafter mentioned, or forbearance
of demand or suit or agreement for such forbearance or cancellation of any
existing guaranty or other valuable consideration, the undersigned (referred to
hereinafter as such or as "Guarantors") do hereby guarantee, jointly and
severally, the full and prompt payment to Bank, when due, whether accelerated or
not, of any and all indebtedness, liabilities and obligations of every nature
and kind, whether heretofore or hereafter arising of Customer to Bank,
including, but not limited to, the indebtedness represented by the Note of
Customer to Bank in the amount of Three Hundred Seventy Five Thousand Dollars
($375,000.00) dated June 30, 1997, all of which is referred to herein as the
"Indebtedness".
1. The undersigned further agree to pay all costs, expenses
and attorney's fees at any time paid or incurred by the Bank in endeavoring to
collect the Indebtedness or any part thereof and in and about the enforcement of
this instrument;
2. This instrument is and is intended to be a continuing
guaranty for the Indebtedness (irrespective of the aggregate amount thereof, or
changes in the same from time to time, and whether or not the same exceeds the
amount of this guaranty), independent of and in addition to any other guaranty,
endorsement or security held by Bank therefor, and without right of subrogation
on the part of the undersigned until the Indebtedness is paid in full. The
undersigned acknowledge that this guaranty does not modify or terminate any
previous guaranties executed and delivered to Bank by the undersigned or any of
them, which guaranties, if any, remain in full force and effect. This guaranty
shall remain in full force and effect until (i) the Bank or its successors or
assigns shall actually receive signed, written notice of its discontinuance or
notice of the death of the undersigned, and (ii) all of the Indebtedness
contracted for or created before the receiving of such notice, and any
extensions or renewals thereof whether made before or after the receipt of such
notice, together with interest accrued thereon, shall be paid in full. In the
event of the discontinuance of this guaranty as to any of the undersigned
because of receipt by the Bank of notice of death or notice of discontinuance,
this guaranty shall, notwithstanding, still continue and remain in full force
against the other signatories until discontinued as to them in the same manner.
In the event all of the Indebtedness shall at any time, or from time to time, be
satisfied, this guaranty shall, nevertheless, continue in full force and effect
as to any such Indebtedness contracted for or incurred thereafter, from time to
time, before receipt by Bank of written notice of discontinuance or written
notice of death of the undersigned.
3. If any default shall be made in the payment of any or all
of the Indebtedness, the undersigned hereby agree to pay the same without
requiring protest or notice of non-payment or notice of default to the
undersigned, to the Customer, or to any other person, without proof of demand
and without requiring the Bank to resort first to the Customer or to any other
guaranty, security or collateral which it may have or hold. The undersigned
hereby waive demands of protest and notice of non-payment and protest to the
undersigned, to the Customer, or to any other person; notice of acceptance
hereof or assent hereto by Bank; and notice that any Indebtedness has been
incurred by the Customer to Bank; and notice of any change whatsoever in any
terms of any of the Indebtedness, whether of payment or otherwise, including but
not limited to a change in the interest rate or maturity on any or all of the
Indebtedness.
4. Upon default being made in the payment of any of the
Indebtedness, the undersigned authorize and empower the Bank, in addition to its
other remedies, to charge any account of the undersigned, and if the undersigned
be more than one person, any account of any or all of the undersigned, with the
full amount then due on this guaranty and to sell, at any broker's board or at a
public or private sale (with such notice, if any, required under the Uniform
Commercial Code) any property of the undersigned in the possession or custody of
the Bank and to apply the proceeds thereof to any balance due on this guaranty.
Upon any such sale the Bank may itself purchase the whole or any part of any
property sold free from any right of redemption, which is expressly waived and
released.
5. The undersigned also further agree that the Bank shall have
the irrevocable right, in its sole discretion, with or without notice to the
undersigned in its sole discretion, either before or after the institution of
bankruptcy or other legal proceedings by or against the undersigned or any of
them, or before or after receipt of written notice of the death of the
undersigned or any of them, or written notice from any of the undersigned of
discontinuance of liability of any of the undersigned hereunder, to extend the
time given for the payment of the Indebtedness or any part thereof. Bank may
accept one or more renewal notes for the Indebtedness which shall be considered
not as new obligations but as extensions of the obligation renewed, and no such
extensions shall discharge or in any manner affect the liability of the
undersigned, or the liability of the estate or estates of any of the undersigned
under this guaranty.
6. The liability of the undersigned hereunder shall not be
affected or impaired by any acceptance by the Bank of security for payment of
the Indebtedness, or any part thereof, or by any disposition of, or failure,
neglect or omission on the part of the Bank to realize upon any such security or
any security at any time held by or left with the Bank for any or all of the
Indebtedness, or upon which a lien may exist therefor, which security may be
exchanged, withdrawn or surrendered from time to time or otherwise dealt with by
the Bank without notice to or assent from the undersigned, to the same extent as
though this guaranty had not been given. Bank shall have the exclusive right to
determine how, when and what application of payments and credits, if any, shall
be made on the Indebtedness, or any part thereof, and may apply the same upon
principal or interest or fees or expenses as it sees fit. The undersigned hereby
agree and consent that the Bank shall have the right to make any agreement with
the Customer or with any party to or anyone liable for the payment of all or any
of the Indebtedness or interest thereon, for the compounding, compromise,
payment, settlement, refinance, renewal, extension, discharge or release
thereof, in whole or in part, for any modification or alteration of any of the
terms thereof, including but not limited to, a change in interest rate, or of
any contract between the Bank and the Customer or any other party without notice
to or assent from the undersigned. The Bank shall also have the right to
discharge or release without notice one or more of the undersigned from any
obligation hereunder, in whole or in part, without in any way releasing,
impairing or affecting its rights against the other or others of the
undersigned.
7. This guaranty is absolute and unconditional and shall not
be affected by any act or thing whatsoever, except payment in full of the
Indebtedness hereby secured. This is a guaranty of payment and not collection.
The failure of any other person to sign this guaranty shall not release or
affect the liability of any signer hereof. This guaranty has been
unconditionally delivered to Bank by each of the persons who have signed it.
8. If a claim is made upon Bank at any time for repayment or
recovery of any amount of the Indebtedness, or other value received by Bank from
any source, in payment of or on account of any of the Indebtedness, and Bank
repays or otherwise becomes liable for all or any part of such claim by reason
of (a) any judgment, decree, or order of any court or administrative body, or
(b) any settlement or compromise of such claim or claims, the undersigned shall
remain liable to Bank hereunder for the amount so repaid or for which Bank is
otherwise liable, to the same extent as if any such amounts had not been
received by Bank, notwithstanding any return or destruction of the original of
this guaranty, or termination hereof or cancellation of any note, bond or other
obligation which evidences all or a portion of the Indebtedness.
9. The undersigned unconditionally agree that they will not
assert, and do hereby waive any right they may have against Customer for
indemnity, subrogation, reimbursement and contribution, until the Indebtedness
is paid in full.
10. This document is the final expression of this guaranty of
the undersigned in favor of Bank, and is the complete and exclusive statement of
the terms of this guaranty. No course of prior dealings between the undersigned
and Bank, nor any usage of trade, nor any parol or extrinsic evidence of any
nature or kind, shall be used or be relevant to supplement, explain or modify
this guaranty.
11. All payments of principal or interest made on the
Indebtedness by the Customer to the Bank shall be deemed to have been made as
agent for the undersigned for the purpose of tolling or renewing the Statute of
Limitations.
12. This guaranty and every part hereof shall be binding upon
the undersigned and the heirs, legal representatives, successors and assigns of
the undersigned, and shall inure to the benefit of the Bank, its successors and
assigns.
13. The undersigned shall provide Bank with signed annual
personal financial statements for each in form satisfactory to the Bank on or
before April 15th of each year, accompanied by a signed complete copy of a
Federal Income Tax Return for each inclusive of all schedules.
14. This instrument cannot be changed or modified or
discharged in whole or in part, orally, and shall be governed by New York law.
Any litigation involving this guaranty shall, at Bank's option, be tried only in
a court of competent jurisdiction located in Monroe County, New York.
IN WITNESS WHEREOF the undersigned have signed and sealed this
instrument on the respective dates set forth below.
S/ Xxxxxxx X. Xxxxxx
----------------------------
XXXXXXX X. XXXXXX
S/ Xxxxxx Xxxxxx
-----------------------------
XXXXXX XXXXXX
MORTGAGE
THIS MORTGAGE, made the 30th day of June, 1997, between V & K
ASSOCIATES, 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (herein
called the "Mortgagor"), and FIRST NATIONAL BANK OF ROCHESTER, a national
banking association with its principal office at 00 Xxxxx Xxxxxx, Xxxx xx
Xxxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx, (herein called the "Mortgagee").
WITNESSETH, to secure the payment of an indebtedness in the sum of
Three Hundred Seventy Five Thousand Dollars ($375,000.00) lawful money of the
United States to be paid with interest thereon to be computed from the date
hereof, to be paid according to a certain Mortgage Note, bearing even date
herewith ("Note"), and all renewals, modifications, replacements, extensions and
refinancings thereof, the Mortgagor hereby mortgages to the Mortgagee the
premises described in Schedule "A" attached hereto and made a part hereof
(herein called the "Mortgaged Premises" or "Premises").
TOGETHER with all the right, title and interest of the Mortgagor in and
to any and all unearned premiums accrued, accruing or to accrue under any and
all insurance policies now or hereafter obtained by the Mortgagor on the
Mortgaged Premises,
TOGETHER with the appurtenances and all the estate and
rights of the Mortgagor in and to said Xxxxxxxx,
TOGETHER with all and singular the tenements, hereditaments, and
appurtenances belonging or in anyway appertaining to said Premises, and the
reversions, remainder and remainders, rents, issues and profits thereof,
TOGETHER with and including any and all strips and gores of
land adjoining or abutting said Premises,
TOGETHER with all right, title, and interest of the Mortgagor in and to
the land lying in the bed of any street, road, avenue or alley open or proposed,
in front of, running through or adjoining said Premises,
TOGETHER with all buildings, structures, and improvements now or at any
time hereafter erected, constructed or situated upon the Premises, and
apparatus, fixtures, chattels, and articles of personal property now or
hereafter attached to or used in connection with said Premises, including but
not limited to furnaces, boilers, oil boilers, radiators and piping, coal
stokers, plumbing and bathroom fixtures, refrigeration, air conditioning and
sprinkler systems, wash-tubs, sinks, gas and electric fixtures, stoves, ranges,
awnings, screens, window shades, elevators, motors, dynamos, refrigerators,
kitchen cabinets, incinerators, plants and shrubbery and all other business
assets, equipment and machinery, appliances, personal property, fittings and
fixtures of every kind in or used in the operation of the buildings standing on
said Premises, together with any and all replacements thereof and additions
thereto,
TOGETHER with all awards heretofore and hereafter made to the Mortgagor
for taking by eminent domain the whole or any part of said Premises or any
easement therein, including any awards for changes of grade of streets, which
said awards are hereby assigned to the Mortgagee, who is hereby authorized to
collect and receive the proceeds of such awards and to give proper receipts and
acquittances therefor, and to apply the same toward the payment of the mortgage
debt, notwithstanding the fact that the amount owing thereof may not then be due
and payable; and the said Xxxxxxxxx hereby agrees, upon request, to make,
execute and deliver any and all assignments and other instruments sufficient for
the purpose of assigning said awards to the Mortgagee, free, clear, and
discharged of any encumbrances of any kind or nature whatsoever.
The Mortgagor covenants with the Mortgagee that:
PAY INDEBTEDNESS. The Mortgagor will pay the indebtedness secured
hereby with interest thereon as herein provided and according to the Note, and
if default shall be made in the payment of part thereof, the Mortgagee shall
have power to sell the Mortgaged Premises according to law.
INSURANCE. The Mortgagor will keep the buildings on the Premises and
the fixtures and articles of personal property covered by the Mortgage insured
against loss by fire and other hazards, casualties and contingencies, including
flood insurance if required by law, regulation or Mortgagee, for the benefit of
the Mortgagee in an amount not less than the unpaid principal balance due
hereunder. The fire insurance policy as required hereby shall contain the usual
extended coverage endorsement and shall provide for twenty (20) days written
notice to Mortgagee prior to cancellation. In addition thereto the Mortgagor
within thirty (30) days after notice and demand will keep the Premises insured
against war risk and any other hazard that may reasonably be required by law,
regulation or Mortgagee. The Mortgagor will assign and deliver said policies to
the Mortgagee and the Mortgagor will reimburse the Mortgagee for any premiums
paid for the insurance procured by the Mortgagee on the Mortgagor's default in
so insuring the buildings or in so assigning and delivering the policies. All
the provisions of this paragraph or of any other provisions of the Mortgage
pertaining to fire insurance or any other additional insurance which may be
required hereunder shall be construed in accordance with Section 254,
Subdivision 4 of the New York Real Property Law, but, said section to the
contrary notwithstanding, the Mortgagor consents that the Mortgagee may without
qualification or limitation by virtue of said section, retain and apply the
proceeds of any such insurance in satisfaction or reduction of the Mortgage, or
it may at its election pay the same, either in whole or in part, to the
Mortgagor or his heirs or assigns for the repair or replacement of the buildings
or of the insured articles of personal property or for any other purpose or
object satisfactory to the holder of the Mortgage, and if the Mortgagee shall
receive and retain such insurance money, the lien of the Mortgage shall be
affected only by a reduction of the amount of such lien by the amount of such
insurance money received and retained by the Mortgagee.
ALTERATIONS, DEMOLITION OR REMOVAL. No building, fixtures or personal
property covered by the Mortgage shall be removed, demolished, or substantially
altered without the prior written consent of the Mortgagee.
WASTE, MAINTENANCE AND REPAIRS. The Mortgagor will not commit any waste
on the Premises or make any change in the use of the Premises which will in any
way increase any ordinary fire or other hazard insurance premiums on the
Premises. The Mortgagor will keep and maintain or cause to be kept and
maintained all buildings and other improvements now or at any time hereafter
erected upon or constituting any portion of the Mortgaged Premises, and the
sidewalks and curbs abutting the same, in good order and condition and in a
rentable and tenantable state or repair, and will make or cause to be made, as
and when the same shall become necessary, all structural and non-structural
exterior and interior, ordinary and extraordinary, foreseen and unforeseen
repairs, renewals, and replacements necessary to that end. In the event that the
Mortgaged Premises shall be damaged or destroyed in whole or in part, by fire or
any other casualty, or in the event of a taking of a portion of the Mortgaged
Premises as a result of any exercise of the power of eminent domain, the
Mortgagor shall promptly restore, replace, rebuild or alter the same as nearly
as possible to the condition they were in immediately prior to such fire, other
casualty or taking. Although damage to or destruction of the Mortgaged Premises,
or any portion thereof, shall not of itself constitute a default hereunder, the
failure of the Mortgagor to restore, replace, rebuild, or alter the same, as
hereinabove provided, shall constitute a default hereunder. The Mortgagor
covenants that it will give to the Mortgagee prompt written notice of any damage
or injury to the Mortgaged Premises and will give like notice to the Mortgagee
of the commencement of any condemnation proceeding affecting the whole or any
portion of Mortgaged Premises. The Mortgagor shall have the right, at any time
and from time to time, to remove and dispose of building service equipment which
may have become obsolete or unfit for use or which is no longer useful in the
operation of the building now or hereafter constituting a portion of the
Mortgaged Premises. The Mortgagor agrees promptly to replace with other building
service equipment, free of superior title, liens or claims, not necessarily of
the same character but of at least equal usefulness and quality, any such
building service equipment so removed or disposed of, except that, if by reason
of technological or other developments in the operation and maintenance of
buildings of the general character of the building constituting a portion of the
Mortgaged Premises, no replacement of the building service equipment so removed
or disposed of is necessary or desirable in the proper operation or maintenance
of said building, the Mortgagor shall not be required to replace the same.
TAXES, ASSESSMENTS, ETC. The Mortgagor will pay all taxes, assessments,
insurance premiums, sewer rents, or water rates through the escrow established
hereunder, and in default thereof, the Mortgagee may pay the same. Any sums so
advanced by the Mortgagee shall bear interest at the maximum legal rate of
interest at the time of such advance or at the highest rate of interest set
forth herein or in the Note, whichever is greater, and any such sum and the
interest thereon shall be a lien on said Premises, prior to any right, or title
to, interest in or claim upon said Xxxxxxxx, or accruing subsequent to the lien
of the Mortgage and shall be deemed secured hereby. Upon written request from
Mortgagee, Xxxxxxxxx shall deliver to Mortgagee receipted tax bills showing
payment of all taxes on the Premises within the applicable grace period.
ESTOPPEL STATEMENT. The Mortgagor within five (5) days upon request in
person or within ten (10) days upon request by mail will furnish a written
statement duly acknowledged of the amount due on the Mortgage and whether any
offsets or defenses exist against the Note and Mortgage.
MORTGAGEE MAY CURE MORTGAGOR'S DEFAULTS. The Mortgagor covenants and
agrees with the Mortgagee that the holder of the Mortgage may cure any default
of Mortgagor on the Mortgage or any prior or subsequent mortgage, including
payment of any installments of principal and interest or part thereof, and that
all costs and expenses, including reasonable attorneys' fees together with
interest thereon at the highest legal rate of interest at the time of such
default or at the highest rate of interest set forth herein or in the Note
secured by the Mortgage, whichever is the greater, paid by the Mortgagee in so
curing said default, shall be repaid by the Mortgagor to the Mortgagee on demand
and the same shall be deemed to be secured by the Mortgage and to be collectible
in like manner as the principal sum.
WARRANTY OF TITLE. The Mortgagor warrants the title to the
Premises and will execute any further assurance of the title to
the Premises as Mortgagee may require.
LIEN LAW COVENANT. The Mortgagor will, in compliance with Section 13 of
the New York Lien Law, receive the advances secured hereby and will hold the
right to receive such advances as a trust fund to be applied first for the
purpose of paying the cost of improvement and will apply the same first to the
payment of the cost of the improvements before using any part of the total of
the same for any other purpose.
ESCROW FOR TAXES. In addition to the monthly payments of principal and
interest, the Mortgagor will pay monthly to the Mortgagee on or before the first
day of each and every calendar month, until the Note is fully paid, a sum equal
to one-twelfth (1/12) of the known or estimated yearly taxes, assessments, liens
and charges levied or to be levied against the Mortgaged Premises. The Mortgagee
shall hold such payments in trust without obligation to pay interest thereon,
except such interest as may be made mandatory by law or regulation, to pay such
taxes, assessments, liens, charges and insurance premiums within a reasonable
time after they become due. If the total of payments made by the Mortgagor for
taxes, assessments, liens, charges and insurance premiums shall exceed the
amount of payments actually made by the Mortgagee, such excess shall be credited
by the Mortgagee on subsequent payments to be made by the Mortgagor. If the
total of payments made by the Mortgagor for taxes, assessments, liens, charges
and insurance premiums shall not be sufficient to pay therefor, then the
Mortgagor shall pay to the Mortgagee any amount necessary to make up the
deficiency on or before the date when such amounts shall be due.
LATE CHARGES. If any payment required to be made under the Mortgage or
the Note or the obligations secured by the Mortgage shall be overdue in excess
of ten (10) days, a late charge equal to $.06 of each $1.00 so overdue, or Fifty
Dollars ($50.00), whichever is greater will be paid by the Mortgagor for the
purpose of defraying the expenses incident to handling such delinquent payments.
LEASES. Pursuant to the provisions of Section 291-f of the New York
Real Property Law, the Mortgagor shall not accept prepayment of rent or
installments of rent for more than one month in advance, without the written
consent of the Mortgagee and in the event of any default under the terms of this
paragraph the whole of said principal sum shall become due immediately upon the
happening thereof at the option of the Mortgagee.
In addition thereto, the Mortgagor shall furnish to the Mortgagee,
within thirty (30) days after a request by the Mortgagee to do so, a written
statement containing the names of all lessees of the Premises, the terms of
their respective leases, the space occupied and the rentals payable thereunder.
ACCELERATION OF PRINCIPAL ON TRANSFER, ETC. Without the Mortgagee's
prior written consent, which Mortgagee may withhold in its sole and absolute
discretion, the principal sum with interest thereon shall become immediately due
and payable in full, upon the legal or equitable, voluntary or involuntary
conveyance or transfer by operation of law or otherwise of all or any part of
the Mortgaged Premises, or Mortgagor, or any interest or estate therein,
including testate or intestate succession and conveyance by land contract.
Acceptance of payments by the Mortgagee subsequent to any such conveyance,
transfer, or encumbering shall not be deemed a waiver of any of the Mortgagee's
rights.
ACCELERATION OF PRINCIPAL ON DEFAULT, ETC. The whole of the principal
sum and interest shall immediately become due and payable in full at the option
of the Mortgagee, after (a) default in the payment of any installment of
principal or of interest for thirty (30) days; or, (b) default in the payment of
any tax, water rate, assessment, insurance premiums, or sewer rent for thirty
(30) days after notice and demand or default after notice and demand either in
assigning and delivering the policies insuring the buildings against any
casualty or in reimbursing the Mortgagee for premiums paid on such insurance, as
herein provided; or (c) default upon request in furnishing a statement of the
amount due and whether any offsets or defenses exist against the mortgage debt,
as herein provided; (d) failure to exhibit to the Mortgagee, within ten (10)
days after demand, receipts showing payment of all taxes, water rates, sewer
rents and assessments; or (e) the actual or threatened alteration, demolition or
removal of any building on the Premises without the written consent of the
Mortgagee; or (f) the assignment of the rents of the Premises or any part
thereof without the written consent of the Mortgagee; or (g) the buildings on
said Premises are not maintained in reasonably good repair; or (h) failure to
comply with any requirement or order or notice of violation of law or ordinance
issued by any governmental department claiming jurisdiction over the Premises
within two (2) months from the issuance thereof; or (i) refusal of two or more
fire insurance companies lawfully doing business in the State of New York to
issue policies insuring the buildings on the Premises; or (j) the removal,
demolition or destruction in whole or in part of any of the fixtures, chattels
or articles of personal property covered hereby, unless the same are promptly
replaced by similar fixtures, chattels and articles of personal property at
least equal in quality and condition to those replaced, free from security
interests or other encumbrances thereon and free from any reservation of title
thereof; or (k) thirty (30) days notice to the Mortgagor, in the event of the
passage of any law deducting from the value of land for the purposes of taxation
any lien thereon, or changing in any way the laws for the taxation of mortgages
or debts secured thereby for state or local purposes; (1) the Mortgagor fails to
keep, observe, and perform any of the other covenants, conditions or agreements
contained in the Mortgage; or (m) use of said Premises for any unlawful purpose
or public or private nuisance; or (n) the Mortgagor commits or permits waste; or
(o) any default under any mortgage or other lien on the Premises or any default
under any other note, loan agreement or other instrument evidencing Mortgagor's
indebtedness to Mortgagee; or (p) the Mortgagor is no longer personally liable
for repayment of the indebtedness secured hereby; or (q) any other mortgage,
lien or other encumbrance is placed on the Premises without Mortgagee's prior
written consent, which consent may be withheld by Mortgagee in its sole and
absolute discretion.
DEBT SERVICE COVERAGE RATIO. At all times, the net operating income
from all leases of the Premises must be sufficient so that the Debt Service
Coverage Ratio (net operating income defined below, divided by annual principal
and interest payments on the Loan) shall be at least 1.2:1. If the Debt Service
Coverage Ratio falls below 1.2 at any time, the Mortgagee shall have the option
to demand payment of the entire Principal Sum and all accrued interest in full,
or at the Mortgagee's option, to allow Mortgagor to pay down principal (without
penalty) to a level acceptable to Mortgagee. Net Operating Income is defined as
annual rental income available after payment of annual real estate taxes,
utilities, management fees, repairs, maintenance, property insurance, reasonable
salaries, reasonable administrative expenses, and other normal operating
expenses, exclusive of depreciation, amortization and interest expense.
NOTICES. Notice and demand to or request upon the Mortgagor
may be oral or in writing and, if in writing, may be served in
person or by mail.
APPOINTMENT OF RECEIVER. The Mortgagee, in any action to foreclose the
Mortgage, shall be entitled, without notice or demand and without regard to the
adequacy of any security for the indebtedness hereby or the solvency or
insolvency of any person liable for the payment thereof, to the appointment of a
receiver of the rents, issues and profits of the Mortgaged Premises.
SALE IN ONE PARCEL. In case of a foreclosure sale, said Premises, or so
much thereof as may be affected by the Mortgage, may be sold in one parcel, any
provision of law to the contrary notwithstanding.
ASSIGNMENT OF RENTS. The Mortgagor hereby assigns to the Mortgagee the
rents, issues, and profits of the Premises as further security for the payment
of said indebtedness, and the Mortgagor grants to the Mortgagee the right to
enter upon and to take possession of the Premises for the purpose of collecting
the same and to let the Premises or any part thereof, and to apply the rents,
issues and profits, after payment of all necessary charges and expenses, on
account of said indebtedness. This assignment and grant shall continue in effect
until the Mortgage is paid. The Mortgagee hereby waives the right to enter upon
and to take possession of said Premises for the purpose of collecting said
rents, issues, and profits, and the Mortgagor shall be entitled to collect and
receive said rents, issues and profits until default under any of the covenants,
conditions, or agreements contained in the Mortgage, and Xxxxxxxxx agrees to use
such rents, issues and profits in payment of principal and interest and in
payment of taxes, assessments, sewer rents, water rates, and carrying charges
against said Xxxxxxxx, but such right of the Mortgagor may be revoked by the
Mortgagee upon any default, on five (5) days written notice. The Mortgagor will
not, without the written consent of the Mortgagee, receive or collect rent from
any tenant of said Premises or any part thereof for a period of more than one
month in advance, and in the event of any default under the Mortgage will pay
monthly in advance to the Mortgagee, or to any receiver appointed to collect
said rents, issues and profits, the fair and reasonable rental value for the use
and occupation of said Premises or of such part thereof as may be in the
possession of the Mortgagor, and upon default in any such payment will vacate
and surrender the possession of said Premises to the Mortgagee or to such
receiver, and in default thereof may be evicted by summary proceedings.
SECURITY AGREEMENT. The Mortgage constitutes a security agreement under
the Uniform Commercial Code and creates a security interest in all that property
(and the proceeds thereof) included in the Premises which might otherwise be
deemed "personal property". Mortgagor shall execute, deliver, file and refile
any financing statement, continuation statements, or other security agreements
Mortgagee may require from time to time to confirm the lien for the Mortgage
with respect to such property. Without limiting the foregoing, Xxxxxxxxx hereby
irrevocably appoints Mortgagee and its successors in interest as
attorney-in-fact for Xxxxxxxxx to execute, deliver and file such instruments,
for and on behalf of Xxxxxxxxx.
ANTI-MARSHALLING. The Mortgagee may resort for the payment of any
indebtedness, liability, or obligation secured hereby to its several securities
therefor, in such order and action to foreclose the Mortgage notwithstanding the
pendency of any action to recover any part of the indebtedness secured hereby,
or the recovery of any judgment in such action, nor shall the Mortgagee be
required during the pendency of any action to foreclose the Mortgage, to obtain
leave of any court in order to commence or maintain any other action to recover
any part of the indebtedness secured hereby.
The Mortgagee shall also have the right in the event of default under
the Mortgage or the obligation secured hereby to proceed against any or all
interests of the Mortgagor and the Mortgagor agrees that the Mortgagee shall
have the right to elect in writing not to cut off any interest that any
Mortgagor might have and in the event that Mortgagee shall so elect, Xxxxxxxxx
agrees that all of its duties and obligations as to such interest shall
continue.
COMPLIANCE WITH LAWS, ETC. The Mortgagor will comply with, or cause
compliance with, all present and future laws, ordinances, rules, regulations,
zoning and other requirements of all governmental authorities whatsoever having
jurisdiction of or with respect to the Mortgaged Premises or any portion thereof
or the use or occupation thereof; provided, however, that the Mortgagor may
postpone such compliance if and so long as the validity or legality of any such
governmental requirement shall be contested by the Mortgagor, with diligence and
in good faith, by appropriate legal proceedings.
COMPLIANCE WITH ZONING, ETC. The Mortgagor covenants: (a) that the
buildings and improvements now on the Mortgaged Premises are in full compliance
with all applicable zoning codes, ordinances and regulations and deed
restrictions, if any; and (b) that such compliance is based solely upon
Mortgagor's ownership of such Premises, and not upon title to or interest in any
other Premises; and (c) buildings or improvements hereafter constructed on such
Premises shall be in compliance as in (a) and (b) above, shall lie wholly within
the boundaries of such Premises, and shall be independent and self-contained
operating units.
LEGAL EXPENSES. If any action or proceeding be commenced (except an
action to foreclose the Mortgage or to collect the debt secured thereby), to
which action or proceeding the Mortgagee is made a party, or in which it becomes
necessary to defend or uphold the lien of the Mortgage, all sums paid by the
Mortgagee for the expense of any litigation to prosecute or defend the rights
and lien created by the Mortgage (including counsel fees), shall be paid by the
Mortgagor, together with interest thereon at the legal rate of interest at the
time of said payment or at the highest rate of interest set forth herein or in
the Note secured by the Mortgage, whichever is greater, and any such sum and
interest thereon shall be a lien on said Premises, prior to any right, or title
to, interest in or claim upon said Premises attaching or accruing subsequent to
the lien of the Mortgage, and shall be deemed to be secured by the Mortgage.
If the Mortgage is referred to attorneys for collection or foreclosure,
the Mortgagor shall pay all sums, including attorneys' fees, incurred by the
Mortgagee, together with all statutory costs, disbursements, and allowances,
with or without the institution of an action or proceeding. All such sums with
interest thereon at the rate set forth herein shall be deemed to be secured by
Mortgage and collectible out of the Mortgaged Premises.
INTEREST ON CONDEMNATION AWARD. In the event of condemnation, or taking
by eminent domain, the Mortgagee shall not be limited to the interest paid on
the award by the condemning authority but shall be entitled to receive out of
the award interest on the entire unpaid principal sum at the rate herein
provided; the Mortgagor does hereby assign to the Mortgagee so much of the
balance of the award payable by the condemning authority as is required to pay
such total interest.
INTEREST IN THE EVENT OF DEFAULT. If default be made in the payment of
the said indebtedness when due, pursuant to the terms hereof, the Mortgagee
shall be entitled to receive interest on the entire unpaid principal sum at the
legal rate of interest at the time of such default or at the highest rate of
interest set forth herein or in the Note secured by the Mortgage, whichever is
the greater, to be computed from the due date and until the actual receipt and
collection of the entire indebtedness. This charge shall be added to and shall
be deemed secured by the Mortgage. The within clause, however, shall not be
construed as an agreement or privilege to extend the Mortgage, nor as a waiver
of any other right or remedy accruing to the Mortgagee by reason of any such
default.
NO SECONDARY FINANCING. The Mortgagor will not, without the Mortgagee's
prior written consent, which consent may be withheld by Mortgagee in its sole
and absolute discretion, mortgage (including the so-called "wrap-around
mortgage"), pledge, assign, grant a security interest in, cause any lien or
encumbrance to attach to or any levy to be made on the Mortgaged Premises except
for (a) taxes and assessments not yet delinquent and (b) any mortgage, pledge,
security interest, assignment or other encumbrance to the Mortgagee.
BANKRUPTCY. Upon the making of an assignment for the benefit of
creditors by, or upon the filing of a petition in bankruptcy by or against the
Mortgagor, or any person or corporation who is the guarantor hereof or whose
indebtedness is secured hereby, or upon the application for the appointment of a
receiver of the property of the Mortgagor or any such person or corporation, or
of the property of any person or corporation which may become and be owner of
the Mortgaged Premises, or upon any act of insolvency or bankruptcy of the
Mortgagor or any such person or corporation or of any such subsequent owner, or
upon the legal incapacity of the Mortgagor or any such person or corporation or
owner, or any of them, the whole of said indebtedness of every kind or nature
held by the Mortgagee and now or hereafter secured hereby shall immediately
become due and payable with interest thereon, and Mortgagor and any guarantor(s)
hereby waiver presentment, demand of payment, protest, notice of non-payment,
and/or protest of any instrument on which the Mortgagor or such guarantors are
or may become liable now or hereafter secured hereby, and the Mortgagor
expressly agrees that the Mortgagee may release or extend the time of any party
liable on any such obligation without notice and without affecting his
obligation thereon or under this instrument. Notwithstanding the foregoing
provisions of this paragraph, no such event as pertains to any person or
corporation who is the guarantor hereof shall result in or constitute any
default with respect to the indebtedness or acceleration thereof, provided that
the Mortgagor continues to comply with and maintain on a current basis all
payment and other obligations to Mortgagee.
LIENS. The Premises shall be kept free and clear from any liens and/or
encumbrances of any type and description, except as provided herein. Upon the
recording of any lien or encumbrance, and the same not having been cleared or
bonded of record within thirty (30) days after filing thereof, the entire debt
secured hereby shall immediately become due and payable.
RIGHT TO INSPECT. The Mortgagee and any persons authorized by Mortgagee
shall have the right to enter and inspect the Mortgaged Premises at all
reasonable times during usual business hours.
WAIVER. No waiver by the Mortgagee of the breach of any of the
covenants contained in the Note, the Mortgage, or other loan document, or
failure of the Mortgagee to exercise any option given to it, shall be deemed to
be a waiver of any other breach of the same or any other covenant, or of its
rights thereafter to exercise any such option.
MODIFICATION. No change, amendment, modification, cancellation or
discharge hereof, or any part hereof, shall be valid unless in writing and
signed by the parties hereto or their respective successors and assigns.
COVENANTS SHALL RUN WITH THE LAND, ETC. The covenants contained in the
Mortgage shall run with the land and bind the Mortgagor, the heirs, personal
representatives, successors and assigns of the Mortgagor and all subsequent
owners, encumbrances, tenants and subtenants of the Premises , and shall enure
to the benefit of the Mortgagee, the personal representatives, successors and
assigns of the Mortgagee and all subsequent holders of the Mortgage.
ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
1. Xxxxxxxxx makes the following representations and warranties, which
shall survive the closing of this loan:
A. Mortgagor is in compliance in all respects with all applicable
federal, state and local laws, including, without limitation, those relating to
toxic and hazardous substances and other environmental matters.
B. No portion of the Premises is being used or has been used at any
previous time, for the disposal, storage, treatment, processing or other
handling of any hazardous or toxic substances.
2. Xxxxxxxxx agrees that Mortgagee or its agents or representatives
may, at any reasonable time and at Xxxxxxxxx's expense inspect Xxxxxxxxx's books
and records and inspect and conduct any tests on the property including taking
soil samples in order to determine whether Mortgagor is in continuing compliance
with all environmental laws and regulations.
3. If any environmental contamination is found on the property for
which any removal or remedial action is required pursuant to law, ordinance,
order, rule, regulation or governmental action, Xxxxxxxxx agrees that it will at
its sole cost and expense remove or take such remedial action promptly and to
Mortgagee's satisfaction.
4. Xxxxxxxxx agrees to defend, indemnify and hold harmless Mortgagee,
its employees, agents, officers and directors from and against any claims,
actions, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses (including, without limitation, attorney and consultant fees,
investigation and laboratory fees, court costs and litigation expenses) of
whatever kind or nature known or unknown, contingent or otherwise arising out of
or in any way related to:
A. The past or present disposal, release or threatened
release of any hazardous or toxic substances on the Premises;
B. Any personal injury (including wrongful death or
property damage, real or personal) arising out of or related to
such hazardous or toxic substances;
C. Any lawsuit brought or threatened, settlement reached or
governmental order given relating to such hazardous or toxic
substances; and/or
D. Any violation of any law, order, regulation, requirement, or demand
of any government authority or any policies or requirements of Mortgagee, which
are based upon or in any way related to such hazardous or toxic substances.
5. Mortgagor knows of no on-site or off-site locations where hazardous
or toxic substances from the operation of the facility on the Premises have been
stored, treated, recycled or disposed of.
6. Xxxxxxxxx agrees that it will conduct no excavations at the Premises
unless it gives Mortgagee ten (10) days' notice of its intention to do so.
Xxxxxxxxx further agrees that it will not commence such excavation until
Mortgagee has had the opportunity to sample and test at the excavation location
if Mortgagee so desires. Should the testing results disclose the presence of
hazardous or toxic substances which require removal and/or remedy under any
environmental laws or regulations, the suspension of excavation activity at such
location shall continue until the hazardous or toxic substances are removed
and/or remedy conducted pursuant to this paragraph.
7. Unless waived in writing by Mortgagee, the breach of any of the
covenants and warranties contained in this section shall be an event of default
under the Mortgage.
8. For purposes of this section, "hazardous and toxic substances"
includes, without limit, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances or related
materials defined in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, the Hazardous Materials Transportation Act,
as amended, the New York State Environmental Conservation Law, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant thereto. The provisions of this section shall
be in addition to any other obligations and liabilities Mortgagor may have to
Mortgagee at common law, and shall survive the transactions contemplated herein.
Mortgagee may, at its option, require Mortgagor to carry adequate insurance to
fulfill Mortgagor's obligations under this paragraph. Xxxxxxxxx's failure to
obtain insurance within thirty (30) days after being requested to do so by
Mortgagee, shall constitute an event or default hereunder.
9. When the terms and provisions contained in the foregoing Paragraphs
1-8 in any way conflict with the terms and provisions contained in a certain
Environmental Compliance and Indemnification Agreement of even date herewith
("Indemnification Agreement"), the terms and provisions of Indemnification
Agreement contained shall prevail, and, in the event of any overlapping terms,
covenants and conditions, insofar as possible, the terms, covenants and
conditions contained herein and in the Indemnification Agreement shall both be
applicable.
TAX ON NOTE. In the event that hereafter it is claimed by any
governmental agency that any tax or other governmental charge or imposition is
due, unpaid and payable by the Mortgagor or the Mortgagee upon the Note (other
than a tax on the interest receivable by the Mortgagee thereunder), the
Mortgagor will upon sixty (60) days prior written notice either(a) pay such tax
and within a reasonable time thereafter deliver to the Mortgagee satisfactory
proof of payment thereof or (b) deposit with the Mortgagee the amount of such
claimed tax, together with interest and penalties thereon, pending an
application for a review of the claim for such tax, and with a reasonable time,
deliver to the Mortgagee either (i) evidence satisfactory to the Mortgagee that
such claim of taxability has been withdrawn or defeated in which event any such
deposit shall be returned to the Mortgagor or (ii) a direction from the
Mortgagor to the Mortgagee to pay the same out of the deposit above mentioned,
any excess due over the amount of said deposit to be paid by the Mortgagor
directly to the taxing authority and any excess of such deposit over such
payment by the Mortgagee to be returned to the Mortgagor. Upon the failure of
the Mortgagor to comply with the provisions of this Article, the whole of said
principal sum and interest secured by the Mortgage shall at the option of the
Mortgagee become due and payable. If liability for such tax is asserted against
the Mortgagee, the Mortgagee will give to the Mortgagor prompt notice of such
claim, and the Mortgagor, upon complying with the provisions of this Article,
shall have full right and authority to consent such claim of taxability.
COMPLIANCE WITH ARTICLE 31-B OF NEW YORK STATE TAX LAW. The Mortgagor
will keep true and complete records pertaining to its acquisition of title to
the Premises, all subsequent transfers of any interests in the Premises or any
part thereof and all changes in the controlling interest (by way of changes in
stock ownership, capital, profits, beneficial interest or otherwise) in the
Mortgagor or any related entity which may hereafter own the Premises, including,
but not limited to, a copy of the contract of sale, title report, deed, closing
statement, transferor's affidavit, questionnaire or return, statement of
tentative assessment and any other notices or determinations of tax received
from the New York State Department of Taxation and all "capital improvements"
made to the Premises or any part thereof and evidence of the payment of any real
property transfer gains tax imposed by reason of Article 31-B of the New York
State Tax Law and the filing of all reports and any other information or
documentation required by the New York State Department of Taxation and Finance
by reason of said Article or any regulations promulgated thereunder. All such
records shall be made available to Mortgagee for inspection from time to time
upon its request.
If any real property transfer gains tax shall be due and payable upon
the conveyance of the Premises pursuant to a judicial sale in any action suit or
proceeding brought to foreclose the Mortgage or by deed in lieu of foreclosure,
the Mortgagor will, at Mortgagee's request, (a) provide Mortgagee with a copy of
all such records and will prepare, execute, deliver and file any affidavits,
records, questionnaires, returns or supplemental returns required of the
Mortgagor, as transferor, including, but not limited to, a statement in
affidavit form as to the "original purchase price" of the Premises and the cost
of all "capital improvements" made to the Premises or any part thereof by the
Mortgagor or any related entity and the date or dates on which such improvements
were made and (b) pay or cause to be paid any real property transfer gains tax,
together with interest and penalties thereon, which may be due and payable by
reason of such conveyance. The Mortgagor hereby irrevocably appoints Mortgagee
its agent and attorney-in-fact (which appointment shall be deemed to be an
agency coupled with an interest), with full power of substitution in the
Premises, to prepare, execute, deliver and file on its behalf any and all
affidavits, questionnaires, returns and supplemental returns which the
Mortgagor, as transferor, has failed or refused to execute and deliver to
Mortgagee within ten (10) days after notice and request therefor by Mortgagee.
In the event that the Mortgagor fails to pay any such tax, interest and
penalties within twenty (20) days after notice and demand for payment is given
by Mortgagee, Mortgagee is hereby authorized to pay the same, and the amount
thereof so paid by Mortgagee, together with all costs and expenses incurred by
Mortgagee in connection with such payment, including, but not limited to,
reasonable attorneys' fees and disbursements and interest on all such amounts,
costs and expenses at the rate of one percent (1%) in excess of the rate
specified in the Note, but in no event in excess of the maximum interest rate
permitted by law, shall be paid by the Mortgagor to Mortgagee on demand. Until
paid by the Mortgagor, all such amounts, costs and expenses, together with
interest thereon, shall be secured by the Mortgage and may be added to the
judgment in any suit brought by Mortgagee against the Mortgagor hereon.
CONSTRUCTION. The word "Mortgagor" shall be construed as if it read
"Mortgagors" and the word "Mortgagee" shall be construed as if it read
"Mortgagees" whenever the sense of the Mortgage so requires. This Mortgage shall
be governed by and construed in accordance with the laws of the State of New
York.
CONFLICT WITH OTHER LOAN AGREEMENTS. Xxxxxxxxx represents and warrants
to Mortgagee that the execution and delivery of this Mortgage and all related
documents and the performance of any term, covenant, or condition herein
provided in any agreement or instrument executed in connection therewith, are
not in conflict with, or result in any reach of, or constitute a default under
or violate:
A. Any of the terms, conditions, or provisions of any
agreement, lease or other instrument to which Mortgagor is a
party or subject to; or,
B. Any Law, regulation, order, writ, injunction or decree of which
Mortgagor is subject or any rules of regulations of any administrative agency
having jurisdiction over Mortgagor or over any property of Mortgagor that would
have a material adverse affect on Mortgagor's business or financial condition.
SEVERABILITY. In the event any one or more of the provisions of the
Mortgage or the Note shall for any reason be invalid, illegal or unenforceable
in whole or in part, then only such provision or provisions shall be deemed to
be null and void and of no force or effect, but shall not affect any other
provision of the Mortgage or the Note.
MARGINAL NOTES OR CAPTIONS. The marginal notes or captions herein are
inserted only as a matter of convenience and for reference and are not and shall
not be deemed to be any part of the Mortgage.
IN WITNESS WHEREOF, the Mortgage has been duly executed by the
Mortgagor, the day and year first above written.
V & K ASSOCIATES
BY: S/ Xxxxxxx X. Xxxxxx
----------------------------
XXXXXXX X. XXXXXX
General Partner
---------------------------------------------------------------------------
Schedule A
The description of the mortgaged premises is omitted from this
Exhibit
