EXHIBIT 4(a)(xviii)
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT,
dated as of the 23rd day of April, 2002 (the Mortgage"), is executed and
delivered by ONEIDA LTD., a New York corporation ("Oneida"), and THE ONEIDA
COUNTY INDUSTRIAL DEVELOPMENT AGENCY, a public benefit corporation existing
under the laws of the State of New York (the "Agency"), (Oneida and the Agency
hereafter collectively referred to as "Mortgagor"), to JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank), as Collateral Agent under the
Collateral Agent Agreement (as defined below) (the "Mortgagee").
Recitals
A. Pursuant to a 2001 Amended and Restated Note Purchase Agreement,
dated as of May 1, 2001 (such agreement, as has been or hereafter may be
modified, amended, renewed or replaced, the "Note Agreement"), by and among
Oneida, THC Systems, Inc. ("THC") and Allstate Life Insurance Company, Allstate
Insurance Company, and Pacific Life Insurance Company (successor to Pacific
Mutual Life Insurance Company (individually, a "Noteholder" and collectively,
the "Noteholders"), THC has issued and sold to the Noteholders $35,000,000
aggregate principal amount of its Senior Secured Notes due May 31, 2005 (the
"THC Notes"). Payment of the THC Notes were guaranteed by Oneida pursuant to the
Note Agreement.
B. Pursuant to that certain Amended and Restated Credit Agreement,
dated as of April 27, 2001 (as has been or hereafter may be modified, amended,
renewed or replaced, the "Credit Agreement"), by and among Oneida, JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as the Administrative
Agent (in such capacity, the "Administrative Agent"), and the financial
institutions parties thereto (collectively, the "Lenders"), the Lenders have
made available to Oneida certain credit facilities, including, without
limitation, a loan in the aggregate amount of $40,000,000 (the "Bullet Loan")
evidenced by the following promissory notes, each dated January 4, 2002 (as may
be modified, amended, renewed or replaced, collectively referred to as the
"Bullet Notes"):
(i) Promissory Note in the amount of $6,545,454.55 in favor of
JPMorgan Chase Bank;
(ii) Promissory Note in the amount of $5,090,909.09 in favor of
Bank of America, N.A.;
(iii) Promissory Note in the amount of $6,545,454.55 in favor of
Fleet National Bank;
(iv) Promissory Note in the amount of $6,545,454.55 in favor of
HSBC Bank, USA;
(v) Promissory Note in the amount of $5,818,181.82 in favor of
Manufacturers and Traders Trust Company;
(vi) Promissory Note in the amount $5,090,909.09 in favor of Bank
of Nova Scotia;
(vii) Promissory Note in the amount of $2,181,818.18 in favor of
European American Bank; and
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(viii) Promissory Note in the amount of $2,181,818.18 in favor of
Banca Nazionale Del Lavoro.
C. The Noteholders under the Note Agreement and the Lenders under the
Credit Agreement (collectively referred to as the "Secured Parties"), together
with certain other secured creditors of Oneida, have entered into an Amended and
Restated Collateral Agency and Intercreditor Agreement dated as of the date
hereof (as may be modified, amended, supplemented or replaced, the "Collateral
Agent Agreement"), appointing JPMorgan Chase Bank as their Collateral Agent and
establishing their relative rights with respect to certain collateral, including
the property mortgaged hereby.
D. Pursuant to the terms of the Note Agreement and the Credit Agreement
(collectively, together with this Mortgage, referred to as the "Transaction
Documents"), Mortgagor is required to grant to the Collateral Agent a mortgage
on certain real estate owned by Mortgagor in order to secure repayment of the
THC Notes and the Bullet Notes (collectively referred to as the "Notes").
WITNESSETH, that to secure (a) payment of the Notes, with interest
thereon, (b) performance of Oneida's obligations under the Transaction Documents
insofar as they relate to the Notes or guarantee repayment of the Notes, (c)
payment by Oneida to Mortgagee of all sums expended or advanced by Mortgagee
pursuant to any covenant, term, or provision of this Mortgage, and (d)
performance of each covenant, term and provision by Oneida to be performed
pursuant to this Mortgage (clauses (a)-(d) hereafter collectively referred to as
the "Indebtedness"), and provided that the maximum principal Indebtedness
secured hereby shall never exceed $47,105,000.00, Mortgagor hereby mortgages,
grants, conveys, warrants, pledges, assigns, and hypothecates unto Mortgagee,
its successors and assigns, the real property described in Exhibit A attached
hereto including, but not limited to, Mortgagor's leasehold interests in the
Premises, (the "Premises"), and all of the buildings, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements, and
improvements now or hereafter located thereon (the "Improvements");
TOGETHER WITH all right, title, interest, and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements, and such property,
rights, interests, and estates hereinafter described are collectively referred
to as the "Mortgaged Property"):
GRANTING CLAUSE ONE
All easements, rights-of-way, strips and gores of land, streets, ways,
alleys, passages, sewer rights, water, water courses, water rights and powers,
air rights and development rights, all rights to oil, gas, minerals, coal and
other substances of any kind or character, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road, highway, alley or
avenue, opened, vacated or proposed, in front of or adjoining the Premises, to
the center line thereof and all the estates, rights, titles, interests, dower
and rights of dower, curtsey and rights of curtsey, property, possession, claim
and demand whatsoever, both at law and in equity, of Mortgagor of, in and to the
Premises and the Improvements and every part and parcel thereof, with the
appurtenances thereto;
GRANTING CLAUSE TWO
All machinery, furniture, furnishings, equipment, computer software and
hardware, fixtures (including, without limitation, all heating, air
conditioning, plumbing, lighting, communications and elevator fixtures) and
other property of every kind and nature, whether tangible or intangible,
whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Premises and the Improvements and all building
equipment, materials and supplies of any nature
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whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, or usable in connection with the present or future
operation, enjoyment and occupancy of the Premises and the Improvements
(hereinafter collectively referred to as the "Equipment"), including any leases
of any of the foregoing, any deposits existing at any time in connection with
any of the foregoing, and the proceeds of any sale or transfer of the foregoing,
and the right, title and interest of Mortgagor in and to any of the Equipment
that may be subject to any "security interests" as defined in New York's Uniform
Commercial Code (the "Uniform Commercial Code"), superior in lien to the lien of
this Mortgage;
GRANTING CLAUSE THREE
Awards or payments, including interest thereon, that may heretofore and
hereafter be made with respect to the Premises and the Improvements, whether
from the exercise of the right of eminent domain or condemnation (including,
without limitation, any transfer made in lieu of or in anticipation of the
exercise of said rights), or for a change of grade, or for any other injury to
or decrease in the value of the Premises and Improvements;
GRANTING CLAUSE FOUR
All leases and other agreements or arrangements heretofore or hereafter
entered into affecting the use, enjoyment or occupancy of, or the conduct of any
activity upon or in, the Premises and the Improvements, including any
extensions, renewals, modifications, or amendments thereof, but excluding the
exercise by the Agency of its Reserved Rights, as that term is hereafter
defined, under the Lease Agreement, dated as of February 29, 2000, between the
Agency and Oneida (the "Agency Lease Agreement") (the "Leases") and all rents,
rent equivalents, moneys payable as damages or in lieu of rent or rent
equivalents, royalties (including, without limitation, all oil and gas or other
mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts, cash, issues, profits, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Mortgagor or its agents or employees from any and all
sources arising from or attributable to the Premises and the Improvements
excluding, however, any monies payable to the Agency pursuant to the Agency's
Reserved Rights (the "Rents"), together with all proceeds from the sale or other
disposition of the Leases and the right to receive and apply the Rents to the
payment of the Debt;
GRANTING CLAUSE FIVE
All proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Mortgaged Property;
GRANTING CLAUSE SIX
The right, in the name and on behalf of Mortgagor, to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to commence any action or proceeding to protect the interest of Mortgagee in
the Mortgaged Property;
GRANTING CLAUSE SEVEN
All proceeds, products, offspring, rents and profits from any of the
foregoing, including, without limitation, those from sale, exchange, transfer,
collection, loss, damage, disposition, substitution or replacement of any of the
foregoing.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, forever;
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PROVIDED, HOWEVER, these presents are upon the express condition that,
if Oneida shall well and truly pay to Mortgagee the Indebtedness at the time and
in the manner provided in the Notes and this Mortgage and shall well and truly
abide by and comply with each and every covenant and condition set forth herein,
in the Notes and in the other Transaction Documents in a timely manner, these
presents and the estate hereby granted shall cease, terminate and be void upon
the full payment of the Indebtedness.
This Mortgage secures the payment of the Indebtedness in a principal
amount not to exceed $47,105,000.00, plus amounts that Mortgagee expends under
this Mortgage in connection with (i) any taxes, charges or assessments that may
be imposed by law upon the Mortgaged Property, (ii) premiums on insurance
policies covering the Mortgaged Property, (iii) expenses incurred in upholding
the lien of this Mortgage, including the expenses of any litigation to prosecute
or defend the rights and lien created by this Mortgage, and (iv) any other
amounts, costs or charged expended by Mortgagee under this Mortgage which are
not reimbursed by Mortgagor. The lien of this Mortgage is subordinate to the
lien of that certain mortgage, dated as of the date hereof, in the amount of
$20,115,000.00 given by Mortgagor to Mortgagee.
Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
PART I
GENERAL PROVISIONS
1. Payment of Indebtedness and Incorporation of Covenants, Conditions
and Agreements. Oneida shall pay the Indebtedness at the time and in the manner
provided in the Notes and in the other Transaction Documents. All the covenants,
conditions and agreements contained in the Notes and any of the Transaction
Documents are hereby made a part of this Mortgage to the same extent and with
the same force as if fully set forth herein.
2. Warranty of Title. Oneida warrants that Mortgagor has good,
marketable and insurable title to the Mortgaged Property and has the full power,
authority and right to execute, deliver and perform its obligations under this
Mortgage and to deed, encumber, mortgage, give, grant, bargain, sell, alienate,
convey, confirm, pledge, assign and hypothecate the same and that Mortgagor
possesses an unencumbered fee estate in the Premises and the Improvements and
that it owns the Mortgaged Property free and clear of all liens, encumbrances
and charges whatsoever except for (i) that certain mortgage, dated as of the
date hereof, in the amount of $20,115,000.00 given by the Mortgagor to the
Mortgagee, which mortgage shall be recorded in the County Clerk's offices prior
to the recording of this Mortgage, and (ii) certain utility easements which do
not affect in any way Mortgagor's use of the Mortgaged Property (the "Permitted
Exceptions") and that this Mortgage is and will remain a valid and enforceable
first lien on and security interest in the Mortgaged Property, subject only to
said Permitted Exceptions, if any. Oneida shall forever warrant, defend and
preserve such title and the validity and priority of the lien of this Mortgage
and shall forever warrant and defend the same to Mortgagee against the claims of
all persons whomsoever.
3. Insurance.
(a) Oneida, at its sole cost and expense, for the mutual benefit
of Mortgagor and Mortgagee, shall obtain and maintain during the entire term of
this Mortgage (the "Term") policies of insurance against loss or damage by fire,
lightning and such other perils as are included in a standard "all-risk"
endorsement, and against loss or damage by all other risks and hazards covered
by a standard extended coverage insurance policy including, without limitation,
riot, and civil commotion, vandalism, malicious mischief, burglary and theft.
Such insurance shall be in an amount equal to the greatest of (i) the then full
replacement cost of the Improvements and Equipment, without deduction for
physical depreciation, (ii) $50,000,000.00, and (iii) such amount that the
insurer would not deem Mortgagor a co-insurer under said policies. The policies
of insurance carried in accordance with this paragraph shall be paid annually in
advance and shall contain a "Replacement Cost
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Endorsement" with a waiver of depreciation, and shall have a deductible no
greater than $100,000 unless so agreed by Mortgagee.
(b) Oneida, at its sole cost and expense, for the mutual benefit
of Mortgagor and Mortgagee, shall also obtain and maintain during the Term the
following policies of insurance:
(i) Flood insurance if any part of the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as an
area having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Program in an amount equal to the
lesser of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis (or the unpaid balance
of the indebtedness secured hereby if replacement cost coverage is not available
for the type of building insured); or (b) the maximum insurance available under
the appropriate National Flood Insurance Program.
(ii) Comprehensive public liability insurance, including
broad form property damage, blanket contractual and personal injuries (including
death resulting therefrom) coverages and containing minimum limits per
occurrence of $1,000,000 and $2,000,000 in the aggregate for any policy year. In
addition, at least $5,000,000 excess and/or umbrella liability insurance shall
be obtained and maintained for any and all claims, including all legal liability
imposed upon Mortgagor and all court costs and attorneys' fee incurred in
connection with the ownership, operation and maintenance of the Mortgaged
Property.
(iii) During any period of repair or restoration, builder's
"all risk" insurance in an amount equal to not less than the full insurable
value of the Improvement being renovated, restored or reconstructed insuring
against such risks (including, without limitation, fire and extended coverage
and collapse of the Improvements to agreed limits) as Mortgagee may request, in
form and substance acceptable to Mortgagee.
(iv) Such other insurance as may be customary for properties
of the same type as the Mortgaged Property in the geographic area in which the
Mortgaged Property is located and as may from time to time be reasonably
required by Mortgagee in order to protect its interests.
(c) All policies of insurance (the "Policies") required pursuant
to this paragraph: (i) shall be issued by companies approved by Mortgagee and
licensed to do business in the state where the Mortgaged Property is located,
with a claims paying ability rating of AA or better by Standard & Poor's Rating
Services; (ii) shall name Mortgagee and its successors and/or assigns as their
interest may appear as the beneficiary/mortgagee; (iii) shall contain a
non-contributory standard mortgagee clause and a Mortgagee's loss payable
endorsement or their equivalents, naming Mortgagee as the person to which all
payments made by such insurance company shall be paid; (iv) shall contain a
waiver of subrogation against Mortgagee; (v) shall be maintained throughout the
Term without cost to Mortgagee; (vi) shall be assigned and the originals
delivered to Mortgagee; (vii) shall contain such provisions as Mortgagee deems
reasonably necessary or desirable to protect its interest including, without
limitation, endorsements providing that neither Mortgagor, Mortgagee nor any
other party shall be a co-insurer under said Policies and that Mortgagee shall
receive at least thirty (30) days prior written notice of any modification,
reduction or cancellation; and (viii) shall be satisfactory in form and
substance to Mortgagee and shall be approved by Mortgagee as to amounts, form,
risk coverage, deductibles, loss payees and insureds. Oneida shall pay the
premiums for such Policies (the "Insurance Premiums") as the same become due and
payable and shall furnish to Mortgagee evidence of the renewal of each of the
Policies with receipts for the payment of the Insurance Premiums or other
evidence of such payment reasonably satisfactory to Mortgagee. If Oneida does
not furnish such evidence and receipts at least thirty (30) days prior to the
expiration of any expiring Policy, then Mortgagee may procure, but shall not be
obligated to procure, such insurance and pay the Insurance Premiums therefor,
and Oneida agrees to reimburse Mortgagee for the cost of such Insurance Premiums
promptly on demand. Within thirty (30) days after request by Mortgagee, Oneida
shall obtain such increases in the amounts of coverage required hereunder as may
be reasonably requested by Mortgagee, taking into consideration changes in the
value of money over time, changes in liability laws, changes in prudent customs
and practices.
4. Casualty.
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(a) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), Oneida
shall give prompt notice thereof to Mortgagee. Following the occurrence of an
Insured Casualty, Oneida, regardless of whether insurance proceeds are
available, shall promptly proceed to restore, repair, replace or rebuild the
same to be of at least equal value and of substantially the same character as
prior to such damage or destruction, all to be effected in accordance with
applicable law. The expenses incurred by Mortgagee in the adjustment and
collection of insurance proceeds shall become part of the Indebtedness and be
secured hereby and shall be reimbursed by Oneida to Mortgagee upon demand.
(b) In case of loss or damages covered by any of the Policies, the
following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed
$500,000, Mortgagor may settle and adjust any claim without the consent of
Mortgagee and agree with the insurance company or companies on the amount to be
paid upon the loss; provided that such adjustment is carried out in a competent
and timely manner. In such case, Mortgagor is hereby authorized to collect and
receipt for any such insurance proceeds.
(ii) In the event an Insured Casualty shall exceed $500,000,
then and in that event, Mortgagee may settle and adjust any claim without the
consent of Mortgagor and agree with the insurance company or companies on the
amount to be paid on the loss and the proceeds of any such policy shall be due
and payable solely to Mortgagee and held in escrow by Mortgagee in accordance
with the terms of this Mortgage.
(iii) In the event of an Insured Casualty where the loss is
in an aggregate amount less than $500,000 and if, in the reasonable judgment of
Mortgagee, the Mortgaged Property can be restored within six (6) months and
prior to the maturity of the Notes to an economic unit not materially less
valuable and not less useful than the same was prior to the Insured Casualty,
and after such restoration will adequately secure the outstanding balance of the
Indebtedness, then, if no Event of Default (as hereinafter defined) shall have
occurred and be then continuing, the proceeds of insurance (after reimbursement
of any expenses incurred by Mortgagee) shall be applied towards the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to the Insured Casualty, in the manner set forth below. Oneida
hereby covenants and agrees to commence and diligently to prosecute such
restoring, repairing, replacing or rebuilding; provided always, that Oneida
shall pay all costs (and if required by Mortgagee, Oneida shall deposit the
total thereof with Mortgagee in advance) of such restoring, repairing, replacing
or rebuilding in excess of the net proceeds of insurance made available pursuant
to the terms hereof.
(iv) Except as provided above in clauses (ii) and (iii) of
this Paragraph 4, the proceeds of insurance collected upon any Insured Casualty
shall, at the option of Mortgagee in its sole discretion, be applied to the
payment of the Indebtedness or applied to reimburse Oneida for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to the Insured Casualty, in the manner set forth below.
(v) In the event Oneida is entitled to reimbursement out of
insurance proceeds held by Mortgagee, such proceeds shall be disbursed from time
to time upon Mortgagee being furnished with (1) evidence satisfactory to it of
the estimated cost of completion of the restoration, repair, replacement and
rebuilding, (2) funds or, at Mortgagee's option, assurances satisfactory to
Mortgagee that such funds are available, sufficient in addition to the proceeds
of insurance to complete the proposed restoration, repair, replacement and
rebuilding, and (3) such architect's certificates, waivers of lien, contractor's
sworn statements, title insurance endorsements, bonds, plats of survey and such
other reasonable evidences of cost, payment and performance as Mortgagee may
reasonably require and approve. Mortgagee may, in any event, require that all
plans and specifications for such restoration, repair, replacement and
rebuilding be submitted to and approved by Mortgagee prior to commencement of
work. No payment made prior to the final completion of the restoration, repair,
replacement and rebuilding shall exceed ninety percent (90%) of the value of the
work performed from time to
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time; funds other than proceeds of insurance shall be disbursed prior to
disbursement of such proceeds; and at all times, the undisbursed balance of such
proceeds remaining in the hands of Mortgagee, together with funds deposited for
that purpose or irrevocably committed to the satisfaction of Mortgagee by or on
behalf of Oneida for that purpose, shall be at least sufficient, in the
reasonable judgment of Mortgagee, to pay for the cost of completion of the
restoration, repair, replacement or rebuilding, free and clear of all liens or
claims for lien. Any surplus which may remain out of insurance proceeds held by
Mortgagee after payment of such costs of restoration, repair, replacement or
rebuilding shall be paid to Oneida.
5. Representations. Oneida hereby represents and warrants to Mortgagee
as follows:
(a) This Mortgage is in all respects a valid and legally binding
obligation of Oneida, enforceable in accordance with its terms.
(b) The execution and delivery of this Mortgage and the
performance and observance by Oneida of its obligations hereunder will not
contravene or result in a breach of (i) Oneida's certificate of incorporation or
by-laws, (ii) any governmental requirements, (iii) any decree or judgement
binding on Mortgagor, or (iv) any agreement or instrument binding on Mortgagor
or any of its properties, nor will the same result in the creation of any lien
or security interest under any such agreement or instrument.
(c) All utility services necessary and sufficient for the
construction, development and operation of the Mortgaged Property for its
intended purposes are presently available to the Premises through dedicated
public rights of way or through perpetual private easements, approved by
Mortgagee, with respect to which the Mortgage creates a valid, binding and
enforceable lien, including, but not limited to, water supply, storm and
sanitary sewer, gas, electric and telephone facilities, and drainage.
(d) Neither the Mortgaged Property nor any portion thereof is now
damaged or injured as result of any fire, explosion, accident, flood or other
casualty or has been the subject of any taking, and, to the knowledge of Oneida,
no taking is pending or contemplated.
(e) All federal, state and other tax returns of Oneida with
respect to the Mortgaged Property required by law to be filed have been filed;
all federal, state and other taxes, assessments and other governmental charges
upon Oneida with respect to the Mortgaged Property which are due and payable
have been paid; and Oneida has set aside on its books provisions reasonably
adequate for the payment of all such taxes for periods subsequent to the periods
for which such returns have been filed.
(f) Oneida has made no contract or arrangement of any kind or type
whatsoever (whether oral or written, formal or informal), the performance of
which by the other party thereto could give rise to a lien or encumbrance on the
Mortgaged Property, except for contracts (all of which have been disclosed in
writing to Mortgagee) made by Mortgagor with parties who have executed and
delivered lien waivers to Oneida, and which, in the opinion of Mortgagee's
counsel, will not create rights in existing or future lien claimants which may
be superior to the lien of the Mortgage.
(g) The rights of way for all roads necessary for the full
utilization of the Improvements for their intended purposes have either been
acquired by the Mortgagor, the appropriate governmental authority or have been
dedicated to public use and accepted by such governmental authority, and all
such roads shall have been completed, or all necessary steps shall have been
taken by Oneida and such governmental authority to assure the complete
construction and installation thereof prior to the date upon which access to the
Mortgaged Property via such roads will be necessary. All curb cuts, driveway
permits and traffic signals necessary for access to the Mortgaged Property after
completion of the Improvements are existing or have been fully approved by the
appropriate governmental authority.
(h) No Event of Default (hereinbelow defined) exists and no event
which but for the passage of time, the giving of notice or both would constitute
an Event of Default has occurred.
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(i) The Permitted Exceptions do not and will not materially and
adversely affect (1) the ability of Oneida to pay in full the principal and
interest on the Notes in a timely manner or (2) the use of the Mortgaged
Property for the use currently being made thereof, the operation of the
Mortgaged Property as currently being operated or the value of the Mortgaged
Property.
(j) Upon the execution by Mortgagor and the recording of this
Mortgage, and upon the execution and filing of UCC-1 financing statements or
amendments thereto, Mortgagee will have a valid first lien on the Mortgaged
Property and a valid security interest in the Equipment subject to no liens,
charges or encumbrances other than the Permitted Exceptions.
(k) Oneida (1) has not executed the Notes, this Mortgage, or any
other Transaction Document with the actual intent to hinder, delay, or defraud
any creditor and (2) has received reasonably equivalent value in exchange for
its obligations under the Notes, this Mortgage, and the Transaction Documents.
The fair saleable value of Mortgagor's assets exceed and will, immediately
following the execution and delivery of this Mortgage, exceed Mortgagor's total
liabilities, including, without limitation, subordinated, unliquidated, disputed
or contingent liabilities. The fair saleable value of Mortgagor's assets is and
will, immediately following the execution and delivery of this Mortgage, be
greater than Mortgagor's probable liabilities, including the maximum amount of
its contingent liabilities or its debts as such debts become absolute and
matured. Mortgagor's assets do not and, immediately following the execution and
delivery of this Mortgage will not, constitute unreasonably small capital to
carry out its business as conducted or as proposed to be conducted. Mortgagor
does not intend to, and does not believe that it will, incur debts and
liabilities (including, without limitation, contingent liabilities and other
commitments) beyond its ability to pay such debts as they mature (taking into
account the timing and amounts to be payable on or in respect of obligations of
Mortgagor).
(l) Mortgagor has full power, authority and right to execute,
deliver and perform its obligations pursuant to this Mortgage, and to deed,
mortgage, give, grant, bargain, sell, alien, convey, confirm, warrant, pledge,
hypothecate and assign the Mortgaged Property pursuant to the terms hereof and
to keep and observe all of the terms of this Mortgage on Mortgagor's part to be
performed.
(m) Oneida is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related
Treasury Department regulations, including temporary regulations.
6. Appointment of Receiver. In any action to foreclose this Mortgage,
Mortgagee shall be entitled, without notice and as a matter of right and without
regard to the adequacy of any security of the indebtedness or the solvency of
Mortgagor, upon application to any court having jurisdiction, to the appointment
of a receiver of the rents, income and profits of the Mortgaged Property. If an
Event of Default occurs under this Mortgage, Oneida, upon demand of Mortgagee,
shall surrender the possession of, and it shall be lawful for Mortgagee, by such
officer or agent as it may appoint, to take possession of, all or any part of
the Mortgaged Property together with the books, papers, and accounts of Oneida
pertaining thereto, and to hold, operate and manage the same, and from time to
time to make all needed repairs and improvements as Mortgagee shall deem wise;
and, if Mortgagee deems it necessary or desirable, to complete construction and
equipping of any Improvements and in the course of such construction or
equipping to make such changes to the same as it may deem desirable; and
Mortgagee may sell the Mortgaged Property or any part thereof, or institute
proceedings for the complete or partial foreclosure of the lien of this Mortgage
on the Mortgaged Property, or lease the Premises or any part thereof in the name
and for the account of Mortgagor or Mortgagee and collect, receive and sequester
the rents, revenues, earnings, income, products and profits therefrom, and out
of the same and any other monies received hereunder pay or provide for the
payment of, all proper costs and expenses of taking, holding, leasing, selling
and managing the same, including reasonable compensation to Mortgagee, its
agents and counsel, and any charges of Mortgagee hereunder, and any taxes and
other charges prior to the lien of this Mortgage which Mortgagee may deem it
wise to pay. The Receiver shall also be authorized to collect from Oneida, and
Oneida agrees to pay, the fair rental value of Oneida's use and occupancy of the
Mortgaged Property.
8
7. Payment of Real Estate Taxes. Oneida shall pay all taxes,
assessments, sewer rents or water rates or sums due under any payment in lieu of
tax agreement ("Pilot Agreement") and in default thereof, Mortgagee may pay the
same. In the event that Mortgagee shall pay any such tax, assessment, sewer
rent, water rate or sums due under any Pilot Agreement, Mortgagee shall have the
right, among other rights, to declare the amount so paid with interest thereon
immediately due and payable, and upon default of Oneida in paying any such
amount with interest thereon, Mortgagee shall have the right to foreclose for
such amount as well as any amounts due under the Notes.
In the event that Oneida should fail to pay any sum Oneida has
agreed to pay pursuant to this covenant for a period in excess of sixty (60)
days after the same is due and payable, in addition to any other remedies
available to Mortgagee hereunder, Mortgagee may, at its option, require that
Oneida deposit with Mortgagee, monthly, one-twelfth (1/12th) of the annual
charges for taxes and any other sums Oneida is obligated to pay pursuant to this
covenant and Oneida shall make such deposits with Mortgagee. Oneida shall
simultaneously therewith deposit with Mortgagee a sum of money which together
with the monthly installments aforementioned will be sufficient to make payment
of all sums required to be paid hereunder at least thirty (30) days prior to the
due date of such payments, it being understood that Mortgagee shall calculate
the amount of such deposits and notify Oneida of the sum due. Should an Event of
Default (hereinbelow defined) occur, the funds deposited with Mortgagee pursuant
to this provision may be applied in payment of the charges for which said funds
shall have been deposited or to the payment of any other sums secured by this
Mortgage as Mortgagee sees fit.
8. Payment of Mortgage Taxes. Oneida shall pay all taxes, if any,
imposed pursuant to Article 11 of the New York Tax Law or any other statute,
order or regulation, whether said tax is imposed at the time of recording or
subsequent thereto. This obligation shall survive the satisfaction or other
termination of this Mortgage.
9. Sale in One Parcel. In the event of a foreclosure of this Mortgage
or any mortgage at any time consolidated with this Mortgage, Mortgagor agrees
that Mortgagee shall be entitled to a judgment directing the referee appointed
in the foreclosure proceeding to sell all of the parcels constituting the
Premises at one foreclosure sale, either as a group or separately and that the
Mortgagor expressly waives any right that it may now have or hereafter acquire
to (i) request or require that the parcels be sold separately or (ii) request,
if Mortgagee has elected to sell parcels separately, that there be a
determination of any deficiency amount after any such separate sale or otherwise
require a calculation of whether said parcel or parcels separately sold were
conveyed for their "fair market value".
10. Condemnation. (a) Oneida shall promptly give Mortgagee written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding (a "Condemnation") and shall deliver to Mortgagee copies of
any and all papers served in connection with such Condemnation. Following the
occurrence of a Condemnation, Oneida, regardless of whether an Award
(hereinafter defined) is available, shall promptly proceed to restore, repair,
replace or rebuild the same to the extent practicable to be of at least equal
value and of substantially the same character as prior to such Condemnation, all
to be effected in accordance with applicable law.
(b) Mortgagee is hereby irrevocably appointed as Mortgagor's
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any award or payment ("Award") for any taking accomplished
through a Condemnation (a "Taking") and to make any compromise or settlement in
connection with such Condemnation, subject to the provisions of this Mortgage.
Notwithstanding any Taking by any public or quasi-public authority (including,
without limitation, any transfer made in lieu of or in anticipation of such a
Taking), Oneida shall continue to pay the Indebtedness at the time and in the
manner provided for in the Notes, and the Indebtedness shall not be reduced
unless and until any Award shall have been actually received and applied by
Mortgagee to expenses of collecting the Award and by Secured Parties to the
discharge of the Indebtedness. Mortgagor shall cause any Award that is payable
to Mortgagor to be paid directly to Mortgagee.
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(c) In the event of any Condemnation where the Award is in an
aggregate amount less than $500,000, and if, in the reasonable judgment of
Mortgagee, the Mortgaged Property can be restored within six (6) months and
prior to the maturity of the Notes to an economic unit not less valuable and not
less useful than the same was prior to the Condemnation, and after such
restoration will adequately secure the outstanding balance of the Indebtedness,
then, if no Event of Default shall have occurred and be then continuing, the
proceeds of the Award (after reimbursement of any expenses incurred by
Mortgagee) shall be applied to reimburse Oneida for the cost of restoring,
repairing, replacing or rebuilding the Mortgaged Property or part thereof
subject to Condemnation, in the manner set forth below. Oneida hereby covenants
and agrees to commence and diligently to prosecute such restoring, repairing,
replacing or rebuilding; provided always, that Oneida shall pay all costs (and
if required by Mortgagee, Oneida shall deposit the total thereof with Mortgagee
in advance) of such restoring, repairing, replacing or rebuilding in excess of
the Award made available pursuant to the terms hereof.
(d) Except as provided above, the Award collected upon any
Condemnation shall, at the option of Mortgagee in its sole discretion, be
applied to the payment of the Indebtedness or applied towards the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to the Condemnation, in the manner set forth below. If the
Mortgaged Property is sold, through foreclosure or otherwise, prior to the
receipt by Mortgagee of such Award, Mortgagee shall have the right, whether or
not a deficiency judgment shall be recoverable or shall have been sought,
recovered or denied, to receive all or a portion of said Award sufficient to pay
the Indebtedness.
(e) In the event Oneida is entitled to payment of the Award
received by Mortgagee, such proceeds shall be disbursed from time to time upon
Mortgagee being furnished with (1) evidence satisfactory to it of the estimated
cost of completion of the restoration, repair, replacement and rebuilding
resulting from such condemnation, (2) funds or, at Mortgagee's option,
assurances satisfactory to Mortgagee that such funds are available, sufficient
in addition to the proceeds of the Award to complete the proposed restoration,
repair, replacement and rebuilding, and (3) such architect's certificates,
waivers of lien, contractor's sworn statements, title insurance endorsements,
bonds, plats of survey and such other evidences of costs, payment and
performance as Mortgagee may reasonably require and approve; and Mortgagee may,
in any event, require that all plans and specifications for such restoration,
repair, replacement and rebuilding be submitted to and approved by Mortgagee
prior to commencement of work. No payment made prior to the final completion of
the restoration, repair, replacement and rebuilding shall exceed ninety percent
(90%) of the value of the work performed from time to time; funds other than
proceeds of the Award shall be disbursed prior to disbursement of such proceeds;
and at all times, the undisbursed balance of such proceeds remaining in hands of
Mortgagee, together with funds deposited for that purpose or irrevocably
committed to the satisfaction of Mortgagee by or on behalf of Mortgagor for that
purpose, shall be at least sufficient in the reasonable judgment of Mortgagee to
pay for the costs of completion of the restoration, repair, replacement or
rebuilding, free and clear of all liens or claims for lien. Any surplus which
may remain out of the Award received by Mortgagee after payment of such costs of
restoration, repair, replacement or rebuilding shall, in the sole and absolute
discretion of Mortgagee, be retained by Mortgagee and applied to payment of the
Indebtedness.
11. Maintenance and Use of Mortgaged Property. Oneida shall cause the
Mortgaged Property to be maintained in a good and safe condition and repair. The
Improvements and the Equipment shall not be removed, demolished or materially
altered (except for normal replacement of the Equipment in the ordinary course
of business) without the consent of Mortgagee. Oneida shall promptly comply with
all laws, orders and ordinances affecting the Mortgaged Property, or its use of
the Mortgaged Property. Oneida shall not initiate, join in, acquiesce in, or
consent to any change in any private restrictive covenant, zoning law or other
public or private restriction, limiting or defining the uses which may be made
of the Mortgaged Property or any part thereof. If under applicable zoning
provisions the use of all or any portion of the Mortgaged Property is or shall
become a nonconforming use, Oneida will not cause or permit such nonconforming
use to be discontinued or abandoned without the express written consent of
Oneida. Oneida shall not (i) change the use of the Mortgaged Property, (ii)
permit or suffer to occur any waste on or to the Mortgaged Property or to any
portion thereof or (iii) take any steps
10
whatsoever to convert the Mortgaged Property, or any portion thereof, to a
condominium or cooperative form of management. Oneida will not install or permit
to be installed on the Premises any underground storage tank.
12. Transfer or Encumbrance of the Mortgaged Property.
(a) Mortgagor shall not, without the prior written consent of
Mortgagee, sell, convey, alienate, mortgage, encumber, pledge or otherwise
transfer the Mortgaged Property or any part thereof, or permit the Mortgaged
Property or any part thereof to be sold, conveyed, alienated, mortgaged,
encumbered, pledged or otherwise transferred, provided, however, that the Agency
may convey the Mortgaged Property to Oneida, subject to this Mortgage, in
accordance with the Lease Agreement between the Agency and Oneida, without the
Mortgagee's prior written consent.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge
or transfer within the meaning of this Paragraph 12 shall be deemed to include
(i) an installment sales agreement wherein Mortgagor agrees to sell the
Mortgaged Property or any part thereof for a price to be paid in installments;
(ii) an agreement by Mortgagor leasing all or a substantial part of the
Mortgaged Property; and (iii) a sale, assignment or other transfer of, or the
grant of a security interest in, Mortgagor's right, title and interest in and to
any leases or any rents.
(c) Mortgagee shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Indebtedness immediately due and payable upon Mortgagor's sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property without Mortgagee's consent. This provision shall apply to
every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the Mortgaged Property regardless of whether voluntary or not, or whether or not
Mortgagee has consented to any previous sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be
deemed to be a waiver of Mortgagee's right to require such consent to any future
occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property made in contravention of this
paragraph shall be null and void and of no force and effect.
(e) Mortgagee may withhold its consent in its sole discretion.
13. Books and Records. Oneida shall keep and maintain at all times at
Oneida's address stated in this Mortgage, or such other place as Mortgagee may
approve in writing, complete and accurate books of accounts and records adequate
to reflect correctly the results of the operation of the Mortgaged Property and
copies of all written contracts, leases and other instruments which affect the
Mortgaged Property. Such books, records, contracts, leases and other instruments
shall be subject to examination and inspection at any reasonable time by
Mortgagee, at Mortgagee's expense upon five (5) days prior notice, at Oneida's
office.
14. Estoppel Certificates and No Default Affidavits. After request by
Mortgagee, Oneida shall within ten (10) days furnish Mortgagee with a statement,
duly acknowledged and certified, setting forth (i) the amount of the original
principal amount of the Notes, (ii) the unpaid principal amount of the Notes,
(iii) the rate of interest of the Notes, (iv) the date installments of interest
and/or principal were last paid, (v) any offsets or defenses to the payment of
the Indebtedness, if any, (vi) that the Notes, this Mortgage and the other
Transaction Documents are valid, legal and binding obligations and have not been
modified or if modified, giving particulars of such modification; and (vii)
reaffirming all representations and warranties of Mortgagor set forth herein and
in the other Transaction Documents as of the date requested by Mortgagee or, to
the extent of any changes to any such representations and warranties, so stating
such changes.
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15. Usury. It is expressly stipulated and agreed to be the intent of
Oneida, and Mortgagee at all times to comply with applicable state usury law or
applicable United States federal usury law (to the extent that it permits
Mortgagee to contract for, charge, take, reserve, or receive a greater amount of
interest than under state law). If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under the
Notes or under any of the other Transaction Documents, or contracted for,
charged, taken, reserved, or received with respect to the Indebtedness, or if
Secured Parties' exercise of the option to accelerate the maturity of the Notes,
or if any prepayment by Oneida results in Oneida having paid any interest in
excess of that permitted by applicable law, then it is Oneida's and Mortgagee's
express intent that all excess amounts theretofore collected shall be credited
on the principal balance of the Notes and all other Indebtedness (or, if the
Notes and all other Indebtedness have been or would thereby be paid in full,
refunded to Oneida), and the provisions of the Notes and the other Transaction
Documents immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of any
new documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
16. Performance of Other Agreements. Oneida shall observe and perform
each and every term to be observed or performed by Mortgagor pursuant to the
terms of any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
17. Further Acts, Etc. Mortgagor will, at the cost of Oneida, and
without expense to Mortgagee, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements or continuation
statements, transfers and assurances as Mortgagee shall, from time to time,
require, for the better assuring, conveying, assigning, transferring, and
confirming unto Mortgagee the property and rights hereby deeded, mortgaged,
given, granted, bargained, sold, alienated, conveyed, confirmed, pledged,
assigned and hypothecated or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage or for filing, registering or recording this Mortgage.
Mortgagor, on demand, will execute and deliver and hereby authorizes Mortgagee
to execute in the name of Mortgagor or without the signature of Mortgagor to the
extent Mortgagee may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence more effectively the security
interest of Mortgagee in the Mortgaged Property. Upon foreclosure, the
appointment of a receiver or any other relevant action, Mortgagor will, at the
cost of Oneida and without expense to Mortgagee, cooperate fully and completely
to effect the assignment or transfer of any license, permit, agreement or any
other right necessary or useful to the operation of or the Mortgaged Property.
Mortgagor grants to Mortgagee an irrevocable power of attorney coupled with an
interest for the purpose of exercising and perfecting any and all rights and
remedies available to Mortgagee at law and in equity, including, without
limitation, such rights and remedies available to Mortgagee pursuant to this
paragraph.
18. Recording of Mortgage, Etc. Oneida forthwith upon the execution and
delivery of this Mortgage and thereafter, from time to time, will cause this
Mortgage, and any security instrument creating a lien or security interest or
evidencing the lien hereof upon the Mortgaged Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest of Mortgagee in, the Mortgaged Property. Oneida will pay all
filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state, county
and municipal, taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do. Oneida shall hold harmless and indemnify Mortgagee, its successors and
assigns, against any liability incurred by reason of the imposition of any tax
on the making and recording of this Mortgage.
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19. Reporting Requirements. Oneida agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Oneida or the insolvency or
bankruptcy filing of any guarantor of the Indebtedness.
20. Events of Default. The Indebtedness under the Notes shall become
immediately due and payable at the option of Mortgagee upon the happening of any
one or more of the following events of default (each an "Event of Default"):
(a) an Event of Default shall have occurred under any of the Notes
or under any Transaction Document;
(b) if any of the taxes or other charges are not paid when the
same are due and payable;
(c) if the Insurance Policies are not kept in full force and
effect, or if the Insurance Policies are not delivered to Mortgagee upon
request;
(d) if Mortgagor transfers or encumbers any portion of the
Mortgaged Property without Mortgagee's prior written consent;
(e) if any representation or warranty of Oneida made herein or in
any certificate, report, or other instrument or document furnished to Oneida
hereunder shall have been false or misleading in any material respect when made;
(f) if Oneida shall be in default under any other mortgage or
security agreement covering any part of the Mortgaged Property whether it be
superior or junior in lien to this Mortgage;
(g) if the Mortgaged Property becomes subject to any mechanic's,
materialman's or other lien and such lien is not removed of record within thirty
(30) days of the filing or recording of such lien (except a lien for local real
estate taxes and assessments not then due and payable);
(h) if Oneida fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property within thirty (30) days after Oneida first receives notice of any such
violations;
(i) except as expressly permitted in this Mortgage, the
alteration, improvement, demolition or removal of any of the Improvements
without the prior consent of Mortgagee;
(j) if Oneida ceases to continuously use the Mortgaged Property or
any material portion thereof for any reason whatsoever (other than temporary
cessation in connection with any repair or renovation thereof undertaken with
the consent of Mortgagee);
(k) if Oneida fails to cure a default under any other term,
covenant or provision of this Mortgage within thirty (30) days after Mortgagee
gives notice of any such default; or
(l) an Event of Default shall have occurred under that certain
mortgage, dated as of the date hereof, in the amount of $20,115,000 given by the
Mortgagor to the Mortgagee.
21. Right To Cure Defaults. Upon the occurrence of any Event of Default
or if Oneida fails to make any payment (including, without limitation, any
required payments for taxes, insurance or to discharge any liens with respect to
the Property) or to do any act as herein provided, Mortgagee may, but without
any obligation to do so and without notice to or demand on Oneida and without
releasing Oneida from any obligation hereunder, make or do the same in such
manner and to such extent as Mortgagee may deem necessary to
13
protect the security hereof. Mortgagee is authorized to enter upon the Mortgaged
Property for such purposes or appear in, defend, or bring any action or
proceeding to protect its interest in the Mortgaged Property or to foreclose
this Mortgage, and the cost and expense thereof (including reasonable attorneys'
fees and disbursements to the extent permitted by law), with interest at the
highest rate provided in the Notes for the period after notice from Mortgagee
that such cost or expense was incurred to the date of payment, shall constitute
a portion of the Indebtedness, shall be secured by this Mortgage and shall be
due and payable upon demand.
22. Additional Remedies.
(a) Upon the occurrence of any Event of Default, Mortgagee may
take such action, without notice or demand, as it deems advisable to protect and
enforce its rights against Mortgagor and in and to the Mortgaged Property by
Mortgagee itself or otherwise, and Mortgagee and the Secured Parties may take
the following additional actions, each of which may be pursued concurrently or
otherwise, at such time and in such order as they may determine, in their sole
discretion, without impairing or otherwise affecting their other rights and
remedies:
(i) declare the entire Indebtedness to be immediately due and
payable;
(ii) institute a proceeding or proceedings, judicial or
nonjudicial, by advertisement or otherwise, for the complete foreclosure of this
Mortgage in which case the Mortgaged Property or any interest therein may be
sold for cash or upon credit in one or more parcels or in several interests or
portions and in any order or manner, reserving Mortgagee's right to seek a
deficiency judgment against Oneida;
(iii) with or without entry, to the extent permitted and
pursuant to the procedures provided by applicable law, institute proceedings for
the partial foreclosure of this Mortgage for the portion of the Indebtedness
then due and payable, subject to the continuing lien of this Mortgage for the
balance of the Indebtedness not then due;
(iv) sell for cash or upon credit the Mortgaged Property or
any part thereof and all estate, claim, demand, right, title and interest of
Mortgagor therein and rights of redemption thereof, pursuant to the power of
sale contained herein or otherwise, at one or more sales, as an entirety or in
parcels, at such time and place, upon such terms and after such notice thereof
as may be required or permitted by law;
(v) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained herein,
or in any of the other Transaction Documents;
(vi) recover judgment on the Notes either before, during or
after any proceedings for the enforcement of this Mortgage;
(vii) apply for the appointment of a trustee, receiver,
liquidator or conservator of the Mortgaged Property, without notice and without
regard for the adequacy of the security for the Debt and without regard for the
solvency of Oneida, any Guarantor or of any person, firm or other entity liable
for the payment of the Debt;
(viii) sell all or any portion of the Mortgaged Property
pursuant to Article 14 of New York's Real Property Actions and Proceedings Law.
(ix) pursue such other rights and remedies as may be
available at law or in equity or under the Uniform Commercial Code including
without limitation the right to receive Rents and any other receivables or
rights to payments of Oneida relating to the Mortgaged Property.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Mortgage shall continue as a lien on the remaining
portion of the Mortgaged Property.
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(b) The proceeds of any sale made under or by virtue of this
paragraph, together with any other sums which then may be held by Mortgagee
under this Mortgage, whether under the provisions of this paragraph or
otherwise, shall be applied by Mortgagee to the payment of the Indebtedness in
the manner set forth in the Collateral Agent Agreement.
(c) Mortgagee may adjourn from time to time any sale by it to be
made under or by virtue of this Mortgage by announcement at the time and place
appointed for such sale or for such adjourned sale or sales; and, except as
otherwise provided by any applicable provision of law, Mortgagee, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
(d) Upon the completion of any sale or sales pursuant hereto,
Mortgagee, or an officer of any court empowered to do so, shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and
rights sold. Mortgagee is hereby irrevocably appointed the true and lawful
attorney of Mortgagor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so
sold and for that purpose Mortgagee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Mortgagor hereby ratifying and confirming all that its said attorney
or such substitute or substitutes shall lawfully do by virtue hereof. Any sale
or sales made under or by virtue of this paragraph, whether made under the power
of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Mortgagor in and to the properties and rights so sold, and shall
be a perpetual bar both at law and in equity against Mortgagor and against any
and all persons claiming or who may claim the same, or any part thereof from,
through or under Mortgagor.
(e) Upon any sale made under or by virtue of this paragraph,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof and
in lieu of paying cash therefor may make settlement for the purchase price by
crediting upon the Indebtedness the net sales price after deducting therefrom
the expenses of the sale and costs of the action and any other sums which
Mortgagee is authorized to deduct under this Mortgage.
(f) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Oneida shall affect in any manner or to any extent the lien of this
Mortgage upon the Mortgaged Property or any part thereof, or any liens, rights,
powers or remedies of Mortgagee hereunder, but such liens, rights, powers and
remedies of Mortgagee shall continue unimpaired as before.
(g) Mortgagee may terminate or rescind any proceeding or other
action brought in connection with its exercise of the remedies provided in this
paragraph at any time before the conclusion thereof, as determined in
Mortgagee's sole discretion and without prejudice to Mortgagee.
(h) Mortgagee and the Secured Parties may resort to any remedies
and the security given by the Notes, this Mortgage or the Transaction Documents
in whole or in part, and in such portions and in such order as determined by
their sole discretion. No such action shall in any way be considered a waiver of
any rights, benefits or remedies evidenced or provided by the Notes, this
Mortgage or any of the other Transaction Documents. The failure to exercise any
right, remedy or option provided in the Notes, this Mortgage or any of the other
Transaction Documents shall not be deemed a waiver of such right, remedy or
option or of any covenant or obligation secured by the Notes, this Mortgage or
the other Transaction Documents. No acceptance by Secured Parties of any payment
after the occurrence of any Event of Default and no payment by Mortgagee of any
obligation for which Oneida is liable hereunder shall be deemed to waive or cure
any Event of Default with respect to Oneida, or Oneida's liability to pay such
obligation. No sale of all or any portion of the Mortgaged Property, no
forbearance on the part of Mortgagee, and no extension of time for the payment
of the whole or any portion of the
15
Indebtedness or any other indulgence given by Mortgagee to Oneida, shall operate
to release or in any manner affect the interest of Mortgagee in the remaining
Mortgaged Property or the liability of Oneida to pay the Indebtedness. No waiver
by Mortgagee shall be effective unless it is in writing and then only to the
extent specifically stated. All costs and expenses of Mortgagee in exercising
the rights and remedies under this Paragraph 22 (including reasonable attorneys'
fees and disbursements to the extent permitted by law), shall be paid by Oneida
immediately upon notice from Mortgagee, with interest at the highest rate
provided in any of the Notes for the period after notice from Mortgagee and such
costs and expenses shall constitute a portion of the Indebtedness and shall be
secured by this Mortgage.
(i) The interests and rights of Mortgagee under this Mortgage or
in any of the other Transaction Documents shall not be impaired by any
indulgence, including (i) any renewal, extension or modification which any
Secured Party may grant with respect to any of the Indebtedness, (ii) any
surrender, compromise, release, renewal, extension, exchange or substitution
which Mortgagee may grant with respect to the Mortgaged Property or any portion
thereof; or (iii) any release or indulgence granted to any maker, endorser,
guarantor or surety of any of the Indebtedness.
(j) The rights and remedies herein afforded to Mortgagee and the
Secured Parties shall be cumulative and supplementary to and not exclusive of
any other rights and remedies afforded the Mortgagee and Secured Parties.
23. Right of Entry. In addition to any other rights or remedies granted
under this Mortgage, Mortgagee, and its agents, during the Term, shall have the
right to enter and inspect the Mortgaged Property during normal business hours.
The cost of such inspections or audits shall be borne by Mortgagor, including
the cost of all follow up or additional investigations or inquiries deemed
reasonably necessary by Mortgagee. The cost of such inspections, if not paid for
by Mortgagor following demand, shall bear interest thereafter until paid at the
highest rate set forth in any of the Notes.
24. Security Agreement.
(a) This Mortgage is both a real property mortgage and a "security
agreement" within the meaning of the Uniform Commercial Code. The Mortgaged
Property includes both real and personal property and all other rights and
interests, whether tangible or intangible in nature, of Mortgagor in the
Mortgaged Property. Mortgagor, by executing and delivering this Mortgage, has
granted and hereby grants to Mortgagee, as security for the Indebtedness, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this paragraph the "Collateral"). This Mortgage shall also constitute a
"fixture filing" for the purposes of the Uniform Commercial Code. As such, this
Mortgage covers all items of the Collateral that are or are to become fixtures.
Information concerning the security interest herein granted may be obtained from
the parties at the addresses of the parties set forth in the first paragraph of
this Mortgage.
(b) If an Event of Default shall occur, Mortgagee, in addition to
any other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof, and to take such other measures as Mortgagee may
deem necessary for the care, protection and preservation of the Collateral. Upon
request or demand of Mortgagee, Mortgagor shall at its expense assemble the
Collateral and make it available to Mortgagee at a convenient place acceptable
to Mortgagee. Oneida shall pay to Mortgagee on demand any and all expenses,
including attorneys' fees and disbursements, incurred or paid by Mortgagee in
protecting the interest in the Collateral and in enforcing the rights hereunder
with respect to the Collateral. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Collateral sent to Mortgagor in
accordance with the provisions hereof at least ten (10) days prior to such
action, shall constitute commercially reasonable notice to Oneida. The proceeds
of any disposition of the Collateral, or any part thereof, shall be applied by
Mortgagee to the payment of the Indebtedness in such manner as may be provided
in the Collateral Agency
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Agreement. In the event of any change in name, identity or structure of any
Mortgagor, such Mortgagor shall notify Mortgagee thereof and promptly after
request shall execute, file and record such Uniform Commercial Code forms as are
necessary to maintain the priority of Mortgagee's lien upon and security
interest in the Collateral, and Oneida shall pay all expenses and fees in
connection with the filing and recording thereof. If Mortgagee shall require the
filing or recording of additional Uniform Commercial Code forms or continuation
statements, Mortgagor shall, at Oneida's expense, promptly after request,
execute, file and record such Uniform Commercial Code forms or continuation
statements as Mortgagee shall deem necessary, and Oneida shall pay all expenses
and fees in connection with the filing and recording thereof. Mortgagor hereby
irrevocably appoints Mortgagee as its attorney-in-fact, coupled with an
interest, to file with the appropriate public office on its behalf any financing
or other statements signed only by Mortgagee, as secured party, in connection
with the Collateral covered by this Mortgage.
25. Waiver of Setoff and Counterclaim. All amounts due under this
Mortgage, the Notes and the other Transaction Documents shall be payable without
setoff, counterclaim or any deduction whatsoever. Mortgagor hereby waives the
right to assert a setoff, counterclaim (other than a mandatory or compulsory
counterclaim) or deduction in any action or proceeding in which Mortgagee is a
participant, or arising out of or in any way connected with this Mortgage, the
Notes, any of the other Transaction Documents or the Indebtedness.
26. Recovery of Sums Required to be Paid. The Secured Parties shall
have the right from time to time to take action to recover any sum or sums which
constitute a part of the Indebtedness as the same become due, without regard to
whether or not the balance of the Indebtedness shall be due, and without
prejudice to the right of Mortgagee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by Mortgagor
existing at the time such earlier action was commenced.
27. Marshalling and Other Matters. Mortgagor hereby waives, to the
extent permitted by law, the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Mortgaged
Property or any part thereof or any interest therein. Further, Mortgagor hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Mortgage on behalf of Mortgagor, and on behalf of
each and every person acquiring any interest in or title to the Mortgaged
Property subsequent to the date of this Mortgage and on behalf of all persons to
the extent permitted by applicable law.
28. Hazardous Substances. Oneida hereby represents and warrants to
Mortgagee that, to the best of Oneida's knowledge, after due inquiry and
investigation except as disclosed on Exhibit B annexed hereto: (a) the Mortgaged
Property is not in direct or indirect violation of any local, state, federal or
other governmental authority, statute, ordinance, code, order, decree, law, rule
or regulation pertaining to or imposing liability or standards of conduct
concerning environmental regulation, contamination or clean-up including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended ("CERCLA"), the Resource Conservation and Recovery
Act, as amended ("RCRA"), the Emergency Planning and Community Right-to-Know Act
of 1986, as amended, the Hazardous Substances Transportation Act, as amended,
the Solid Waste Disposal Act, as amended, the Clean Water Act, as amended, the
Clean Air Act, as amended, the Toxic Substance Control Act, as amended, the Safe
Drinking Water Act, as amended, the Occupational Safety and Health Act, as
amended, New York's Navigation Law, and any state super-lien and environmental
clean-up statutes and all rules and regulations adopted in respect to the
foregoing laws whether presently in force or coming into being and/or
effectiveness hereafter (collectively, "Environmental Laws"); (b) the Mortgaged
Property is not subject to any private or governmental lien or judicial or
administrative notice or action or inquiry, investigation or claim relating to
hazardous and/or toxic, dangerous and/or regulated, substances, wastes,
materials, raw materials which include hazardous constituents, pollutants or
contaminants including without limitation, petroleum, tremolite, anthlophylie,
actinolite or polychlorinated biphenyls and any other substances or materials
which are included under or regulated by Environmental Laws or which are
considered by scientific opinion to be otherwise dangerous in terms of the
health, safety and welfare of humans (collectively, "Hazardous Substances"); (c)
no Hazardous Substances are or have been (including the period prior to Oneida's
acquisition of the Mortgaged Property) discharged, generated, treated, disposed
of or stored on, incorporated in, or removed or transported from
17
the Mortgaged Property other than in compliance with all Environmental Laws and
other than releases of Hazardous Substances which have been remediated in
compliance with applicable Environmental Laws; (d) no Hazardous Substances are
present in, on or under any nearby real property which could migrate to or
otherwise affect the Mortgaged Property; and (e) no underground storage tanks
exist on any of the Mortgaged Property. So long as Oneida owns any interest in
or is in possession of the Mortgaged Property, Oneida (i) shall keep or cause
the Mortgaged Property to be kept free from Hazardous Substances and in
compliance with all Environmental Laws, (ii) shall promptly notify Mortgagee if
Oneida shall become aware of any Hazardous Substances on or near the Mortgaged
Property and/or if Oneida shall become aware that the Mortgaged Property is in
direct or indirect violation of any Environmental Laws and/or if Oneida shall
become aware of any condition on or near the Mortgaged Property which shall pose
a threat to the health, safety or welfare of humans, and (iii) Oneida shall
remove such Hazardous Substances and/or cure such violations and/or remove such
threats, as applicable, as required by law (or as shall be required by Oneida in
the case of removal which is not required by law, but in response to the opinion
of a licensed hydrogeologist, licensed environmental engineer or other qualified
consultant engaged by Mortgagee ("Mortgagee's Consultant")), promptly after
Oneida becomes aware of same, at Oneida's sole expense. Notwithstanding anything
to the contrary in this paragraph, Oneida and/or tenants on the Mortgaged
Property may use and store immaterial amounts of Hazardous Substances at the
Mortgaged Property if such use or storage is in connection with the ordinary
cleaning and maintenance of the Mortgaged Property so long as such use and
storage does not violate any applicable Environmental Laws. Nothing herein shall
prevent Oneida from recovering such expenses from any other party that may be
liable for such removal or cure. The obligations and liabilities of Oneida under
this Paragraph 28 shall survive any termination, satisfaction, or assignment of
this Mortgage and the exercise by Mortgagee of any of its rights or remedies
hereunder, including, without limitation, the acquisition of the Mortgaged
Property by foreclosure or a conveyance in lieu of foreclosure.
29. Asbestos. Oneida represents and warrants that, to the best of
Oneida's knowledge, after due inquiry and investigation, no asbestos or any
substance or material containing asbestos ("Asbestos") is located on the
Mortgaged Property except as may have been disclosed on Exhibit B. Oneida shall
not install in the Mortgaged Property, nor permit to be installed in the
Mortgaged Property, Asbestos and shall remove any Asbestos promptly upon
discovery to the satisfaction of Mortgagee, at Oneida's sole expense. Oneida
shall in all instances comply with, and ensure compliance by all occupants of
the Mortgaged Property with, all applicable federal, state and local laws,
ordinances, rules and regulations with respect to Asbestos, and shall keep the
Mortgaged Property free and clear of any liens imposed pursuant to such laws,
ordinances, rules or regulations. In the event that Oneida receives any notice
or advice from any governmental agency or any source whatsoever with respect to
Asbestos on, affecting or installed on the Mortgaged Property, Oneida shall
immediately notify Mortgagee. The obligations and liabilities of Oneida under
this Paragraph 29 shall survive any termination, satisfaction, or assignment of
this Mortgage and the exercise by Mortgagee of any of its rights or remedies
hereunder, including but not limited to, the acquisition of the Mortgaged
Property by foreclosure or a conveyance in lieu of foreclosure.
30. Environmental Monitoring. Oneida shall give prompt written notices
to Mortgagee of: (a) any proceeding or inquiry by any party with respect to the
presence of any Hazardous Substance or Asbestos on, under, from or about the
Mortgaged Property, (b) all claims made or threatened by any third party against
Oneida or the Mortgaged Property relating to any loss or injury resulting from
any Hazardous Substance or Asbestos, and (c) Oneida's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of the
Mortgaged Property that could cause the Mortgaged Property to be subject to any
investigation or cleanup pursuant to any Environmental Law. Oneida shall permit
Mortgagee to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated with respect to the Mortgaged Property in
connection with any Environmental Law or Hazardous Substance, and Oneida shall
pay all attorneys' fees and disbursements incurred by Mortgagee in connection
therewith. Upon Mortgagee's request, at any time after the occurrence of an
Event of Default or at such other time Mortgagee has determined (in the exercise
of its good faith judgment) that reasonable cause exists for the performance of
an environmental inspection or audit of the Mortgaged Property, Oneida shall
provide at Oneida's sole expense, (i) an inspection or audit of the Mortgaged
Property prepared by a licensed hydrogeologist or licensed environmental
engineer approved by Mortgagee indicating the presence or absence of Hazardous
Substances on, in or near the Mortgaged Property, and (ii) an inspection or
audit of the Mortgaged Property prepared by a duly qualified engineering or
consulting firm approved by Mortgagee, indicating the
18
presence or absence of Asbestos on the Mortgaged Property. If Oneida fails to
provide such inspection or audit within thirty (30) days after such request
Mortgagee may order same, and Oneida hereby grants to Mortgagee and its
employees and agents access to the Mortgaged Property and a license to undertake
such inspection or audit. The cost of such inspection or audit shall be paid by
Oneida on demand and shall bear interest thereafter until paid at the highest
rate provided in any of the Notes. In the event that any environmental site
assessment report prepared in connection with such inspection or audit
recommends that an operations and maintenance plan be implemented for Asbestos
or any Hazardous Substance, Oneida shall cause such operations and maintenance
plan to be prepared and implemented at Oneida's expense upon request of
Mortgagee. In the event that any investigation, site monitoring, containment
cleanup, removal, restoration, or other work of any kind is reasonably necessary
or desirable under an applicable Environmental Law (the "Remedial Work"), Oneida
shall commence and thereafter diligently prosecute to completion all such
Remedial Work within thirty (30) days after written demand by Mortgagee for
performance thereof (or any such shorter period of time as may be required under
applicable law.) All Remedial Work shall be performed by contractors approved in
advance by Mortgagee, and under the supervision of a consulting engineer
approved by Mortgagee. All costs and expenses of such Remedial Work shall be
paid by Oneida including, without limitation, Mortgagee's reasonable attorneys'
fees and disbursements incurred in connection with monitoring or review of such
Remedial Work. In the event Oneida shall fail to timely commence, or cause to be
commenced, or fail to diligently prosecute to completion, such Remedial Work,
Mortgagee may, but shall not be required to, cause such Remedial Work to be
performed, and all costs and expenses thereof, or incurred in connection
therewith, shall be paid by Oneida on demand and shall bear interest thereafter
until paid at the highest rate provided in any of the Notes.
31. Indemnification. In addition to any other indemnifications provided
herein or in the other Transaction Documents, Oneida shall protect, defend,
indemnify and save harmless Mortgagee from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs and expenses (including, without limitation, reasonable attorneys'
fees and disbursements), imposed upon or incurred by or asserted against
Mortgagee by reason of (a) this Mortgage, the Mortgaged Property or any interest
therein or receipt of any Rents; (b) any accident, injury to or death of persons
or loss of or damage to property occurring in, on or about the Mortgaged
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (c) any use, nonuse or
condition in, on or about the Mortgaged Property or any part thereof or on
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (d) any failure on the part of Oneida to perform or comply with any of
the terms of this Mortgage; (e) performance of any labor or services or the
furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof; (f) the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release, or threatened release of any
Hazardous Substance or Asbestos on, from, or affecting the Mortgaged Property;
(g) any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Substance or Asbestos; (h)
any claim brought or threatened, settlement reached, or government order
relating to such Hazardous Substance or Asbestos; (i) any violation of the
Environmental Laws, which are based upon or in any way related to such Hazardous
Substance or Asbestos including, without limitation, the costs and expenses of
any Remedial Work, attorney and consultant fees and disbursements, investigation
and laboratory fees, court costs, and litigation expenses; and (j) any
representation or warranty made in the Notes, this Mortgage or any of the other
Transaction Documents being false or misleading in any material respect as of
the date such representation or warranty was made. Any amounts payable to
Mortgagee by reason of the application of this paragraph shall be secured by
this Mortgage and shall become immediately due and payable and shall bear
interest at the highest rate provided in any of the Notes from the date loss or
damage is sustained by Mortgagee until paid. The obligations and liabilities of
Oneida under this Paragraph 31 shall survive and termination, satisfaction, or
assignment of this Mortgage and the exercise by Mortgagee of any of its rights
or remedies hereunder, including, but not limited to, the acquisition of the
Mortgaged Property by foreclosure or a conveyance in lieu of foreclosure.
A waiver of subrogation shall be obtained by Oneida from its insurance
carrier and, consequently, Oneida waives any and all right to claim or recover
against Mortgagee, its officers, employees, agents and representatives, for loss
of or damage to Oneida, the Mortgaged Property, Oneida's property or the
property of others under Oneida's control from any cause insured against or
required to be insured against by the provisions of this Mortgage.
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32. Notices. Any notice, report, demand or other instrument authorized
or required to be given or furnished ("Notices") shall be in writing and shall
be given as follows: (a) by hand delivery; (b) by deposit in the United States
mail as first class certified mail, return receipt requested, postage paid; (c)
by overnight nationwide commercial courier service; or (d) by telecopy
transmission (other than for notices of default) with a confirmation copy to be
delivered by duplicate notice in accordance with any of clauses (a)- (c) above,
in each case, addressed to the party intended to receive the same at the
following address(es):
Mortgagee: JPMorgan Chase Bank
Bridgewater Place
000 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Xx.
Telecopy No.: (000) 000-0000
Agency: Oneida County Industrial Development Agency
000 Xxxxxx Xxxx
Xxxx, Xxx Xxxx 00000
Attn: Chairman
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Oneida: Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to: Oneida Ltd.
Legal Department
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxxxx, General Counsel
Telecopy No. (000) 000-0000
Any party may change the address to which any such Notice is to be
delivered, by furnishing ten (10) days written notice of such change to the
other parties in accordance with the provisions of this Paragraph 32. Notices
shall be deemed to have been given on the date they are actually received;
provided, that the inability to deliver Notices because of a changed address of
which no Notice was given, or rejection or refusal to accept any Notice offered
for delivery shall be deemed to be receipt of the Notice as of the date of such
inability to deliver or rejection or refusal to accept delivery. Notice for
either party may be given by its respective counsel.
33. Waiver of Notice. Mortgagor shall not be entitled to any notices of
any nature whatsoever from Mortgagee except with respect to matters for which
this Mortgage specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and Mortgagor hereby expressly waives
the right to receive
20
any notice from Mortgagee with respect to any matter for which this Mortgage
does not specifically and expressly provide for the giving of notice by
Mortgagee to Mortgagor.
34. Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage,
Mortgagee exercises any right given to it to consent or not consent or approve
or disapprove, or any arrangement or term is to be satisfactory to Mortgagee,
the decision of Mortgagee to consent or not consent, to approve or disapprove or
to decide that arrangements or terms are satisfactory or not satisfactory shall
be in the sole discretion of Mortgagee (subject to obtaining the consent of the
Secured Parties if required by the terms of the Collateral Agent Agreement or
any of the Transaction Documents) and shall be final and conclusive, except as
may be otherwise expressly and specifically provided herein.
35. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of (a) the failure of Mortgagee or Secured Parties to comply
with any request of Mortgagor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Notes, or the other
Transaction Documents, (b) the release, regardless of consideration, of the
whole or any part of the Mortgaged Property, or of any person liable for the
Indebtedness or any portion thereof, or (c) any agreement or stipulation by
Mortgagee or Secured Parties extending the time of payment or otherwise
modifying or supplementing the terms of the Notes, this Mortgage or any of the
other Transaction Documents. Mortgagee and the Secured Parties may resort for
the payment of the Indebtedness to any other security held by them in such order
and manner as they, in their sole discretion, may elect. Mortgagee and the
Secured Parties may take action to recover the Indebtedness, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Mortgagee thereafter to foreclosure this Mortgage. The rights and remedies of
Mortgagee under this Mortgage shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Mortgagee
or the Secured Parties shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provision. Mortgagee and the
Secured Parties shall not be limited exclusively to the rights and remedies
herein stated but shall be entitled to every right and remedy now or hereafter
afforded at law or in equity.
36. No Oral Change. This Mortgage, and any provisions hereof, may not
be modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of Mortgagor or Mortgagee, but only
by an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
37. Liability. Subject to the provisions contained in Paragraph 55 of
this Mortgage, if Mortgagor consists of more than one person, the obligations
and liabilities of each such person hereunder shall be joint and several.
Subject to the provisions hereof requiring Mortgagee's consent to any transfer
of the Mortgaged Property, this Mortgage shall be binding upon and inure to the
benefit of Mortgagor and Mortgagee and their respective successors and assigns
forever.
38. Inapplicable Provisions. If any term, covenant or condition of this
Mortgage is held to be invalid, illegal or unenforceable in any respect, this
Mortgage shall be construed without such provision.
39. Headings, Etc. The headings and captions of various paragraphs of
this Mortgage are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
40. Definitions. Unless the context clearly indicates a contrary intent
or unless otherwise specifically provided herein, words used in this Mortgage
may be used interchangeably in singular or plural form and the word "Mortgagor"
shall mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Mortgagee"
shall mean "Mortgagee and any subsequent Collateral Agent under the Collateral
Agent Agreement," the word "Notes" shall mean "any of the Notes and any other
evidence of indebtedness secured by this Mortgage," the word "person" shall
include an
21
individual, corporation, partnership, trust, unincorporated association,
government, governmental authority, and any other entity, and the words
"Mortgaged Property" shall include any portion of the Mortgaged Property and any
interest therein and the words "attorneys' fees" shall include any and all
attorneys' fees, paralegal and law clerk fees, including, without limitation,
fees at the pre-trial, trial and appellate levels incurred or paid by Mortgagee
in protecting its interest in the Mortgaged Property and Collateral and
enforcing its rights hereunder. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and vice
versa.
41. Actions and Proceedings. If any action or proceeding be commenced
to which action or proceeding Mortgagee is made a party and in which it becomes
necessary in the opinion of Mortgagee to defend or uphold the lien of this
Mortgage, all sums paid by Mortgagee for the expense of any litigation to
prosecute and defend the rights and lien created by this Mortgage, including
reasonable counsel fees, costs and allowances, shall, together with interest
thereon be a lien on the Mortgaged Property and secured by this Mortgage and
shall be collectible in like manner as said indebtedness and shall be paid by
Oneida upon receipt of an invoice from Mortgagee.
42. Leases of the Mortgaged Property. Mortgagor will not enter into any
lease(s) for all or any portion of the Mortgaged Property without the prior
written consent of Mortgagee.
43. Real Property Law. All covenants hereof, which are in addition to
those set forth in Sections 254 and 291-f of the Real Property Law, shall be
construed as affording to Mortgagee rights additional to, and not exclusive of,
the rights conferred under the provisions of said Sections 254 and 291-f.
44. Successors. All of the provisions of this Mortgage shall inure to
the benefit of Mortgagee and of any subsequent holder of this Mortgage and shall
be binding upon Mortgagor and each subsequent owner of the Mortgaged Property.
45. Effect of Releases. Mortgagee and the Secured Parties, without
notice, may release any part of the security described herein, or any person or
entity liable for any Indebtedness without in any way affecting the lien hereof
upon any part of the security not expressly released, and may agree with any
party obligated on said Indebtedness or having any interest in the security
described herein to extend the time for payment of any part or all of the
Indebtedness. Such agreement shall not in any way release or impair the lien
hereof, but shall extend the lien hereof as against the title of all parties
having any interest in said security, which interest is subject to said lien,
and no such release or agreement shall release any person or entity obligated to
pay any Indebtedness.
46. Mortgagee Not Obligated. Nothing herein contained shall be
construed as making the payment of any insurance premiums, taxes or assessments
obligatory upon Mortgagee, although Mortgagee may pay same, or as making
Mortgagee liable in any way for loss, damage or injury, resulting from the
non-payment of any such insurance premiums, taxes or assessments.
47. Lien Law. Oneida will, in compliance with Section 13 of the Lien
Law, receive the advances secured by this Mortgage 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 the improvement and will apply the same first to the payment
of the cost of the improvement before using any part of the total of the same
for any other purpose.
48. Costs, Expenses and Attorney's Fees. Should one or more Events of
Default occur hereunder, and should an action be commenced for the foreclosure
of this Mortgage, Mortgagee shall be entitled to recover all sums due hereunder,
statutory costs, and any additional allowances made pursuant to Section 8303(a)
of the Civil Practice Law and Rules of the State of New York, and in addition
thereto, reasonable attorneys' fees in such proceeding and in all proceedings
related thereto necessary to and related to the foreclosing proceeding, and such
amount shall be paid by Oneida on demand and shall be a lien on the Mortgaged
Property prior to any right
22
or title to, interest in or claim upon the Mortgaged Property attaching and
accruing subsequent to the lien of this Mortgage, and shall be deemed to be
secured by this Mortgage and the indebtedness which it secures.
49. Entire Agreement. This Mortgage constitutes the entire
understanding between Mortgagor and Mortgagee relative to the granting of a
mortgage lien on the Mortgaged Property and supersedes any prior writings or
oral statements or conversations at any time made or had with respect thereto.
50. Governing Law: Severability. This Mortgage shall be governed by the
law of the jurisdiction in which the Mortgaged Property is located. In the event
that any provision or clause of this Mortgage conflicts with applicable law,
such conflict shall not affect other provisions of this Mortgage which can be
given effect without the conflicting provision, and to this end, the provisions
of this Mortgage are declared to be severable.
51. Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Mortgagor under this Mortgage.
52. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE HEREBY WAIVE TRIAL BY
JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR
ARISING OUT OF THIS MORTGAGE OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT HEREOF, OR THE RELATIONSHIP BETWEEN MORTGAGOR AND
MORTGAGEE OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN MORTGAGOR AND
MORTGAGEE ARISING UNDER THIS MORTGAGE.
53. Tax Law Section 253 Statement. This Mortgage does not cover real
property principally improved or to be improved by one or more structures
containing in the aggregate not more than six residential dwelling units, each
having their own separate cooking facilities.
55. Execution of Counterparts. This Agreement may be executed in one or
more counterparts, any one or all of which shall constitute but one agreement.
55. No Recourse; Special Obligation.
(a) The obligations and agreements of the Agency contained herein
and any other instrument or document executed in connection therewith or
herewith, and any other instrument or document supplemental thereto or hereto,
shall be deemed the obligations and agreements of the Agency, and not of any
member, officer, director, agent (other than Oneida) or employee of the Agency
in his individual capacity, and the members, officers, directors, agents (other
than Oneida) and employees of the Agency shall not be liable personally hereon
or thereon or be subject to any personal liability or accountability based upon
or in respect hereof or thereof or of any transaction contemplated hereby or
thereby.
(b) The obligations and agreements of the Agency contained herein
and therein shall not constitute or give rise to an obligation of the State of
New York or Oneida County, New York, and neither the State of New York nor
Oneida County, New York shall be liable hereon or thereon, and, further, such
obligations and agreements shall not constitute or give rise to a general
obligation of the Agency, and Mortgagee shall have no recourse to the Agency
other than the Agency's interests in the Mortgaged Property, including, but not
limited to, the revenues derived and to be derived from the sale or other
disposition of the Real Property. This Mortgage is specifically subordinate to
the exercise by the Agency of the following rights (the "Agency's Reserved
Rights") under the Agency Lease Agreement: The right to (a) receive in its own
behalf all opinions of counsel, reports, statements, certificates, insurance
policies or binders or certificates, or other communications required to be
delivered by Oneida to the Agency; (b) grant or withhold any consents or
approvals required of the Agency; (c) to enforce or otherwise exercise in its
own behalf all agreements of Oneida with respect to ensuring that the Mortgaged
Property shall always constitute a qualified "project" as defined in and as
contemplated by the Act (as
23
that term is defined in the Agency Lease Agreement); (d) to amend with Oneida
the provisions of the PILOT (as that term is defined in the Agency Lease
Agreement); (e) to enforce in its own behalf (or on behalf of the appropriate
taxing authorities) the provisions of, and receive amounts payable under the
PILOT and Section 6.3 of the Agency Lease Agreement; (f) to be indemnified
pursuant to Section 8.2 of the Agency Lease Agreement; (g) to terminate the
Agency Lease Agreement in accordance with its terms; and (h) to reconvey the
Mortgaged Property to Borrower in accordance with the terms of the Agency Lease
Agreement. The Agency's Reserved Rights are not pledged to the Mortgagee
hereunder and are reserved to the Agency and the contractual obligations of
Oneida with respect to the Agency's Reserved Rights shall survive a foreclosure
of this Mortgage.
(c) No order or decree of specific performance with respect to any
of the obligations of the Agency hereunder shall be sought or enforced against
the Agency unless (1) the party seeking such order or decree shall first have
requested the Agency in writing to take the action sought in such order or
decree of specific performance, and thirty (30) days shall have elapsed from the
date of receipt of such request, and the Agency shall have refused to comply
with such request (or, if compliance therewith would reasonably be expected to
take longer than thirty (30) days, shall have failed to institute and diligently
pursue action to cause compliance with such request within such ten day period)
or failed to respond within such notice period, (2) if the Agency refuses to
comply with such request and the Agency's refusal to comply is based on its
reasonable expectation that it will incur fees and expenses, the party seeking
such order or decree shall have placed in an account with the Agency an amount
or undertaking sufficient to cover such reasonable fees and expenses, and (3) if
the Agency refuses to comply with such request and the Agency's refusal to
comply is based on its reasonable expectation that it or any of its members,
officers, agents (other than Oneida) or employees shall be subject to potential
liability, the party seeking such order or decree shall (a) agree to indemnify,
defend and hold harmless the Agency and its members, officers, directors, agents
(other than Oneida) and employees against any liability incurred as a result of
its compliance with such demand, and (b) if requested by the Agency, furnish to
the Agency satisfactory security to protect the Agency and its members,
officers, directors, agents (other than Oneida) and employees against all
liability expected to be incurred as a result of compliance with such request.
Any failure to provide the indemnity and/or security required in this Section
55(C) shall not affect the full force and effect of an Event of Default
hereunder.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, this Mortgage has been duly executed as of the 23rd
day of April, 2002.
ONEIDA LTD.
By: /s/ XXXXX X. XXXXX
------------------
Xxxxx X. Xxxxx
Chief Financial Officer
ONEIDA COUNTY INDUSTRIAL DEVELOPMENT AGENCY
By: /s/ XXXXXX XXXXX
----------------
Xxxxxx Xxxxx
Chairman
STATE OF NEW YORK )
) SS.:
COUNTY OF MADISON )
24
On the 22nd day of April, in the year 2002, before me, the undersigned,
a notary public in and for said state, personally appeared Xxxxx X. Xxxxx ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual or the person upon behalf of which
the individual acted, executed the instrument.
/s/ XXXXXX XXXXXXXXXXX
----------------------
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF ONEIDA )
On the _____ day of April, in the year 2002, before me, the
undersigned, a notary public in and for said state, personally appeared Xxxxxx
Xxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual or the person upon behalf of
which the individual acted, executed the instrument.
------------------------------------
Notary Public
25
