MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS (Fee)
Exhibit
10.4
NEXMED
(U.S.A.), INC., AS MORTGAGOR
and
THE
TAIL WIND FUND LTD. AND SOLOMON STRATEGIC HOLDINGS, INC., COLLECTIVELY AS
MORTGAGEE
MORTGAGE,
SECURITY AGREEMENT AND
ASSIGNMENT
OF LEASES AND RENTS
(Fee)
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Dated
:
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As
of June 30, 2008
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Locations:
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00
Xxxx Xxxxxx Xxxxx
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Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
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000
Xxxxxxx Xxxx
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Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
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The
premises described within this instrument are also known as:
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Block
20.06
Lot
6
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and
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Block
20.06
Xxx
0
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xx
xxx
Xxxxxxxx Xxx Xxx xx Xxxxxx Xxxxxx.
RECORD
AND RETURN TO:
MORTGAGE,
SECURITY AGREEMENT AND
ASSIGNMENT
OF LEASES AND RENTS
THIS
MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS is made as
of
the 30th day of June, 2008, by NEXMED (U.S.A.), INC., a Delaware corporation
having its principal place of business at 00 Xxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx,
Xxx Xxxxxx 00000 (the “Mortgagor”),
to
THE TAIL WIND FUND LTD., a British Virgin Islands limited liability company
having an address at c/o Tail Wind Advisory and Management Ltd., Attn: Xxxxx
Xxxxx, 00 Xxxx Xxxx, Xxxxxx XX0X 0XX XX (“Tail
Wind”),
and
SOLOMON STRATEGIC HOLDINGS, INC., a British Virgin Islands limited liability
company, (collectively, the “Mortgagee”),
and
Tail Wind as collateral agent (including any successor collateral agent, the
“Collateral
Agent”).
W
I T N E S S E T H
WHEREAS,
the Mortgagor is the owner of a fee estate in the real property described in
Exhibit
A
and
Exhibit
B
attached
hereto and made a part hereof (the “Premises”)
and
commonly known as 00 Xxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 and
000
Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000, respectively;
WHEREAS,
the Mortgagor is a wholly-owned subsidiary of NexMed, Inc., a Nevada corporation
(“Parent”);
WHEREAS,
the Parent is executing, issuing and delivering one or more of the Parent’s 7%
Convertible Notes due December 31, 2011 in the aggregate original principal
amount of Five Million Seven Hundred Fifty Thousand Dollars ($5,750,000), lawful
money of the United States of America, dated on or about the date hereof, to
the
Mortgagee, pursuant to the terms of that certain Purchase Agreement entered
into
on or about the date hereof between the Parent and the Mortgagee (“Purchase
Agreement”);
and
WHEREAS,
as a condition to and as an inducement for the Mortgagee purchasing the Notes,
the Mortgagor is entering into a subsidiary guaranty (“Guaranty”)
dated
on or about the date hereof in favor of the Mortgagee guaranteeing the Parent’s
obligations under the Notes and the agreements entered into in connection
therewith;
NOW
THEREFORE, to secure the payment of an indebtedness in the aggregate original
principal sum of Five Million Seven Hundred Fifty Thousand Dollars ($5,750,000),
lawful money of the United States of America, to be paid with interest and
with
accretions to such principal amount (said indebtedness, interest, accretions
to
the principal amount due thereunder, and all other sums which may or shall
become due hereunder or under the Notes and Guaranty, collectively, the
“Debt”)
pursuant to the above described 7% Convertible Notes due December 31, 2011
given
by the Parent to the Mortgagee (the notes, together with all extensions,
renewals or modifications thereof, being hereinafter collectively called the
“Notes”)
and
pursuant to the Guaranty given by the Mortgagor to the Mortgagee, the Mortgagor
has mortgaged, given, granted, bargained, sold, aliened, enfeoffed, conveyed,
confirmed, pledged, assigned and hypothecated,
and by
these presents does mortgage, give, grant, bargain, sell, alien, convey,
confirm, pledge, assign and hypothecate
unto the
Mortgagee forever all right, title and interest of the Mortgagor now owned,
or
hereafter acquired, in and to the following property, rights and interest (such
property, rights and interests, collectively, the “Mortgaged
Property”):
(a) The
Premises;
(b) all
buildings,
structures, fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and improvements now or hereafter located on the Premises
(the
“Improvements”);
(c) all
of
the estate, right, title, claim or demand of any nature whatsoever of the
Mortgagor, either in law or in equity, in possession or expectancy, in and
to
the Premises, Improvements, Easements (defined below), Equipment (defined
below), Leases (defined below), and/or Rents (defined below), or any part
thereof;
(d) all
easements, rights-of-way, strips and gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, 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/or Improvements (including, without
limitation, any and all development rights, air rights or similar or comparable
rights of any nature whatsoever now or hereafter appurtenant to the Premises
and/or Improvements or now or hereafter transferred to the Premises and/or
Improvements) and all land lying in the bed of any street, road or avenue,
opened or proposed, in front of or adjoining the Premises and/or Improvements
to
the center line thereof (“Easements”);
(e) all
machinery,
apparatus, equipment, fittings, fixtures (including but not limited to all
heating, air conditioning, plumbing, lighting and communications fixtures)
now
or hereafter located on the Mortgaged Property, and all machinery, apparatus,
equipment, fittings, fixtures (including but not limited to all heating, air
conditioning, plumbing, lighting and communications fixtures) which are
replacements of, additions to or upgrades of such items (collectively,
the “Equipment”);
(f) all
awards or payments, including interest thereon, and the right to receive the
same, which may be made with respect to the Premises, Improvements, Easements,
Equipment, Leases and/or Rents, whether from the exercise of the right of
eminent domain (including any transfer made in lieu of the exercise of said
right), or awards or refunds received as a result of a reduction in the real
estate taxes or tax assessment affecting the Premises, Improvements, Easements,
Equipment, Leases and/or Rents, or proceeds received in connection with any
tax
certiorari proceeding affecting the Premises, Improvements, Easements,
Equipment, Leases and/or Rents, or for any other injury to or decrease in the
value of the Mortgaged Property;
(g) all
leases and other agreements affecting the use or occupancy of the Premises,
Improvements, Easements and/or Equipment, now or hereafter entered into (the
“Leases”)
and
the right to receive and apply the rents, issues and profits of the Premises,
Improvements, Easements, Equipment and/or Leases (the “Rents”)
to the
payment of the Debt;
-2-
(h) all
right, title and interest of the Mortgagor in and to (i) all contracts from
time
to time executed by the Mortgagor or any manager or agent on its behalf relating
to the ownership, construction, maintenance, repair, operation, occupancy,
sale
or financing of the Premises, Improvements, Easements, Equipment, Leases and/or
Rents, or any part thereof and all agreements relating to the purchase or lease
of any portion of the Premises, Improvements, Easements, Equipment, Leases
and/or Rents, or any property which is adjacent or peripheral to the Premises,
Improvements and/or Easements, together with the right to exercise such options
and all leases of Equipment, (ii) all consents, licenses, building permits,
certificates of occupancy and other governmental approvals relating to
construction, completion, occupancy, use or operation of the Premises,
Improvements, Easements, Equipment, Leases and/or Rents, or any part thereof,
and (iii) all drawings, plans, specifications and similar or related items
related to the Premises, Improvements, Easements, Equipment, Leases and/or
Rents;
(i) all
books
and records relating to or used in connection with the operation of the
Premises, Improvements, Easements, Equipment, Leases and/or Rents, or any part
thereof; all general intangibles related to the operation of the Premises,
Improvements, Easements, Equipment, Leases and/or Rents, now existing or
hereafter arising;
(j) all
proceeds, both cash and non-cash, of the foregoing;
(k) all
proceeds of and any unearned premiums on any insurance policies covering the
Premises, Improvements, Easements, Equipment, Leases and/or Rents, 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
Premises, Improvements, Easements, Equipment, Leases and/or Rents;
and
(l) after
the
occurrence of an Event of Default hereunder, the right, in the name and on
behalf of the Mortgagor, to appear in and defend any action or proceeding
brought with respect to the Premises, Improvements, Easements, Equipment, Leases
and/or Rents, and to commence any action or proceeding to protect the interest
of the Mortgagee in the Premises, Improvements, Easements, Equipment, Leases
and/or Rents.
TO
HAVE
AND TO HOLD the above granted and described Mortgaged Property unto and to
the
use and benefit of the Mortgagee, and the successors and assigns of the
Mortgagee, forever.
AND
the
Mortgagor covenants and agrees with and represents and warrants to the Mortgagee
as follows:
1. Payment
of Debt.
The
Parent or Mortgagor will pay the Debt at the time and in the manner provided
for
its payment in the Notes and in this Mortgage.
2. Representations
and Warranties.
Mortgagor represents and warrants to the Mortgagee that:
(a) Warranty
of Title. Mortgagor
has good title to the Mortgaged Property and has the right to mortgage, give,
grant, bargain, sell, alien, enfeoff, convey, confirm, pledge, assign and
hypothecate the same, and Mortgagor possesses an unencumbered fee interest
in
the Mortgaged Property and owns the Mortgaged Property free and clear of all
liens, encumbrances and charges whatsoever except for those exceptions shown
in
the title insurance policy insuring the lien of this Mortgage. Mortgagor 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-
(b)
Consideration.
(i)
Contemporaneously with, and in consideration for, the execution and delivery
of
this Mortgage, the Mortgagor is receiving new value from the Mortgagee, which
new value is reasonably equivalent value in exchange for this Mortgage, (ii)
the
execution and delivery of this Mortgage by the Mortgagor does not constitute
a
“fraudulent conveyance” within the meaning of Title 11 of the United States Code
as now constituted or under any other applicable statute, (iii) no bankruptcy
or
insolvency proceedings are pending or contemplated by or, to the knowledge
of
Mortgagor, against the Mortgagor, and (iv) this Mortgage is legal and valid
and
creates a lien on and security interest in the Mortgaged Property.
(c) Authority.
The
Mortgagor (i) has full power, authority and legal right to execute this
Mortgage, and to mortgage, give, grant, bargain, sell, alien, convey, confirm
and assign the Mortgaged Property pursuant to the terms hereof and to keep
and
observe all of the terms of this Mortgage on the Mortgagor's part to be
performed and (ii) is a duly organized and presently existing corporation in
good standing under the laws of the State of Delaware and this Mortgage has
been
duly executed by authority of its Board of Directors. No shareholder approval
is
required to authorize the execution, delivery and performance of this Mortgage.
The Mortgagor is qualified to do business in the State of New
Jersey.
(d) Priority.
There
are no liens on the Mortgaged Property other than those created by this
Mortgage. Upon filing of this Mortgage and a UCC-1 financing statement fixture
filing with Xxxxxx County in the State of New Jersey, the Mortgagee will have
a
first priority lien on the real property and fixtures included within the
Mortgaged Property. This Mortgage, upon the filing of a UCC-1 financing
statements describing the Mortgaged Property with the Secretary of State of
the
State of Delaware, creates a valid, perfected (upon filing) and first priority
security interest in the personal property included in the Mortgaged Property
in
favor of the Mortgagee. The Mortgagor hereby authorizes the Collateral Agent
to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Mortgaged Property without the signature
of
the Mortgagor.
(e) Bills.
There
are no unpaid bills for labor, materials, supplies or services furnished upon
or
in connection with the Mortgaged Property more than 30 days past the due date
thereof which could result in a lien on the Mortgaged Property. As of the date
the Mortgage is recorded in the public records of the county in which the
Mortgaged Property is located, there is no active "Notice of Commencement"
on
record with respect to the Mortgaged Property.
(f) Permits.
Mortgagor has obtained all federal, state and local permits, licenses, approvals
and authorizations from those federal agencies and any state or local authority
charged with the enforcement or regulation of environmental and land use matters
in connection with the Mortgaged Property. The Mortgaged Property is currently
in compliance with all building, safety, zoning and other requirements of any
state, municipal or other governmental authority pertaining to the use and
occupancy of the Mortgaged Property, and prior to commencement of manufacturing
in the Premises outside the existing production suite, the Mortgaged Property
will be in compliance with all building, safety, zoning and other requirements
of any state, municipal or other governmental authority pertaining to the use
and occupancy of the Mortgaged Property for its intended purpose. If the
Mortgaged Property includes wetlands or other areas subject to the regulatory
jurisdiction of any water management district or other regulatory body having
jurisdiction over wetlands, protected species of flora and fauna, or inland
waterways, then Mortgagor has received all necessary permits, licenses and
approvals of the applicable governmental authorities relating to such matters
as
may be necessary to use and occupy the Mortgaged Property for its intended
purpose.
-4-
(g) Rights
of Access.
The
Mortgaged Property has adequate right of access to public rights of way,
directly or pursuant to insurable easements.
(h) Utilities.
Prior
to commencement of manufacturing on the Premises outside the existing production
suite, sewer, water, telephone, electricity and all other necessary utilities
will be physically available at the Mortgaged Property in sufficient capacity
to
serve the Mortgaged Property for its intended use, and the zoning, occupancy
and
land use classification(s) and designation(s) under all laws, ordinances, rules
and regulations will permit the use and occupancy of the Mortgaged Property
for
its intended purpose, without the necessity of obtaining further approvals,
variances, waivers, consents or authorizations. All easements, licenses or
other
interests in the property of others or any consent of other land owners as
required for drainage or other utilities or services relating to the Mortgaged
Property have been obtained.
(i) Litigation.
There
are no suits or proceedings pending or, to the knowledge of Mortgagor,
threatened against or affecting Mortgagor, the Mortgaged Property, or involving
the validity or enforceability of this Mortgage or involving any risk of a
judgment or a liability which, if unsatisfied, would have a material adverse
effect on the financial condition, business or properties of Mortgagor or the
validity or priority of the lien of this Mortgage.
(j) No
conflict.
The
execution and delivery of this Mortgage does not conflict with or result in
the
breach of any regulation, order, writ, injunction, judgment or decree of any
court or governmental authority or in the breach of or default under any
agreement or other instrument to which Mortgagor or Parent is a party or by
which it or its property is bound.
(k) Location.
Mortgagor's principal place of business and executive office is located at
the
address set forth in the introductory paragraph of this Mortgage. Mortgagor
shall notify the Collateral Agent at least 30 days prior to any change in such
location.
(l) Mortgaged
Property.
The
building on the Mortgaged Property described in Exhibit A attached hereto
consists of not less than 31,500 square feet of space and the Mortgaged Property
described in Exhibit A attached hereto consists of not less than 3.55 acres
of
land. All machinery and equipment that currently is or will be affixed to the
Premises or Improvements is or shall be owned by Mortgagor.
(m)
Developer’s
Agreement.
No
default exists under that certain Developer’s Agreement, dated September 1,
1999, between the Township of East Windsor and Simon Developments, LLC, that
encumbers the Premises, and no event has occurred which, with the passage of
time or the giving of notice or both, would constitute such a
default.
-5-
(n) Other
Real Property.
The
Mortgagor does not own any real property other than the real property included
in the Mortgaged Property.
3. Insurance.
The
Mortgagor (i) will keep the Improvements and the Equipment insured against
loss
or damage by fire, standard extended coverage perils and such other hazards
in
amounts not less than 100% of the full insurable value of the Improvements
and
the Equipment, excluding the costs of foundations, excavations and footings
below grade, and shall be sufficient to meet all applicable co-insurance
requirements, and (ii) will maintain business interruption insurance and such
other forms of insurance coverage with respect to the Mortgaged Property as
the
Collateral Agent shall from time to time reasonably require in amounts approved
by the Collateral Agent but in no event in all such instances greater than
those
coverages customarily required of other comparable buildings in the Xxxxxx
County, New Jersey area by institutional commercial lenders. All policies of
insurance (the “Policies”)
shall
be issued by insurers having a minimum policy holders rating of “A” per the
latest rating publication of Property and Casualty Insurers by A.M. Best Company
and who are lawfully doing business in New Jersey and are otherwise reasonably
acceptable in all respects to the Collateral Agent in its reasonable discretion.
All Policies shall contain the standard New Jersey mortgagee non-contribution
clause endorsement or an equivalent endorsement satisfactory to the Collateral
Agent naming the Mortgagee, or the Collateral Agent on behalf of the Mortgagee,
as the person to which all payments made by the insurer thereunder shall be
paid
and shall otherwise be in form and substance satisfactory in all respects to
the
Collateral Agent. Blanket insurance policies shall not be acceptable for the
purposes of this paragraph unless otherwise approved to the contrary by the
Collateral Agent. The Mortgagor shall pay the premiums for the Policies as
the
same become due and payable. At the request of the Collateral Agent, the
Mortgagor will deliver the Policies to the Collateral Agent. Not later than
ten
(10) business days prior to the expiration date of each of the Policies, the
Mortgagor will deliver to the Collateral Agent a renewal policy or policies
accompanied by evidence of payment of premiums billed reasonably satisfactory
to
the Collateral Agent. If at any time the Collateral Agent is not in receipt
of
written evidence that all insurance required hereunder is in force and effect,
the Collateral Agent shall have the right upon three (3) business days notice
to
the Mortgagor to take such action as the Collateral Agent deems necessary to
protect its interest in the Mortgaged Property, including, without limitation,
the obtaining of such insurance coverage as the Collateral Agent in its sole
discretion deems appropriate, and all expenses incurred by the Collateral Agent
in connection with such action or in obtaining such insurance and keeping it
in
effect shall be paid by the Mortgagor to the Collateral Agent upon demand.
The
Mortgagor shall at all times comply with and shall cause the Improvements and
Equipment and the use, occupancy, operation, maintenance, alteration, repair
and
restoration thereof to comply with the terms, conditions, stipulations and
requirements of the Policies.
If
the
Premises, or any portion of the Improvements, is located in a Federally
designated “special flood hazard area,” in addition to the other Policies
required under this paragraph, a flood insurance policy shall be delivered
by
the Mortgagor to the Collateral Agent. The Mortgagor shall also maintain such
other property
and liability insurance
policies with
respect to the Mortgaged Property as are customary and prudent under the
circum-stances, evidence of which Collateral
Agent at
any
time may require.
-6-
If
the
Mortgaged Property shall be damaged or destroyed, in whole or in part, by fire
or other property hazard or casualty, the Mortgagor shall give prompt notice
thereof to the Collateral Agent. Sums paid to the Mortgagee or the Collateral
Agent by any insurer may be retained and applied by the Mortgagee (or the
Collateral Agent on behalf of the Mortgagee) toward payment of the Debt whether
or not then due and payable in such order, priority and proportions as the
Mortgagee (or the Collateral Agent on behalf of the Mortgagee) in its discretion
shall deem proper or, at the discretion of the Collateral Agent, the same may
be
paid, either in whole or in part, to the Mortgagor for such purposes as the
Collateral Agent shall designate. If the Mortgagee (or the Collateral Agent
on
behalf of the Mortgagee) shall receive and retain such insurance proceeds,
the
lien of this Mortgage shall be reduced only by the amount thereof received
and
retained by the Mortgagee and actually applied by the Mortgagee in reduction
of
the Debt.
The
Mortgagor shall also maintain commercial general liability insurance with
respect to the Premises and the Improvements, on an “occurrence” basis and in
such amounts and containing such coverage as shall be reasonably required by
the
Collateral Agent (so long as such amounts and coverage do not exceed what is
customarily required of owners of other comparable buildings in the Xxxxxx
County, New Jersey area by institutional commercial lenders). The Mortgagee
shall be named as an additional insured on such commercial general liability
policy.
4. Covenants.
(a) Payment
of Taxes, Etc. Mortgagor
shall pay all taxes, assessments, water rates, sewer rents, ground rents,
maintenance charges and other charges, including without limita-tion, vault
charges and license fees for the use of vaults, chutes and similar areas
adjoining the Premises, now or hereafter levied or assessed or imposed against
the Mortgaged Property or any part thereof (the "Taxes") as same become due
and
payable. Mortgagor will deliver to Collateral
Agent,
upon
request, evidence satisfactory to Collateral
Agent that
the
Taxes are not delinquent. Mortgagor shall not suffer and shall promptly cause
to
be paid and discharged, any lien or charge whatsoever which may be or become
a
lien or charge against the Mortgaged Property, and shall promptly pay for all
utility services provided to the Mortgaged Property. Mortgagor shall furnish
to
Collateral
Agent receipts
for the payment of the Taxes prior to the date the same shall become
delinquent.
(b) Corporate
Existence, Etc. The
Mortgagor will preserve and keep in force and effect its corporate existence
and
will cause each subsidiary and its Parent to preserve and keep in force and
effect its corporate, partnership or other existence, except in each such case
in the event of a merger as expressly permitted herein, in accordance with
the
respective organizational documents of each such subsidiary and Parent, and
the
rights and franchises of the Mortgagor and its subsidiaries and Parent.
(c) Rights
of the Mortgagee.
The
Mortgagor will not, at any time, by any amendment of the Mortgagor’s corporate
charter or by-laws, or through any consolidation, merger, reorganization,
transfer of assets, dissolution, issue or sale of securities or any other
action, seek to avoid the observance or performance hereof or under any of
the
other Loan Documents, but will at all times take such actions as are necessary
or appropriate in order to protect the rights of the Mortgagee hereunder and
under the other Loan Documents.
-7-
(d) Schedules.
The
Mortgagor will furnish to the Collateral Agent from time to time statements
and
schedules further identifying and describing the Mortgaged Property and such
other reports in connection with the Mortgaged Property as the Collateral Agent
may reasonably request, all in reasonable detail.
5. Escrow
Fund.
At any
time after the occurrence of an Event of Default hereunder, upon the request
of
the Collateral Agent, the Mortgagor shall pay to the Collateral Agent on the
first day of each calendar month (a) one twelfth of an amount which would be
sufficient to pay the Taxes imposed against the Mortgaged Property or any part
thereof payable, or estimated by Collateral Agent to be payable, during the
next
ensuing twelve (12) months and (b) one-twelfth of an amount which would be
sufficient to pay the premiums due for the renewal of the coverage afforded
by
the Policies upon the expiration thereof (said amounts in (a) and (b) above
hereinafter called the “Escrow
Fund”).
Mortgagor hereby pledges to Mortgagee any and all monies now or hereafter
deposited in the Escrow Fund as additional security for the payment of the
Debt.
Collateral Agent will apply the Escrow Fund to payments required to be made
by
Mortgagor pursuant to the provisions of this Mortgage. If the amount of the
Escrow Fund shall exceed the amount due for the items described, Collateral
Agent shall, in its discretion, (1) return any excess to Mortgagor, (2) credit
such excess against the Debt in such priority and proportions as Collateral
Agent in its discretion shall deem proper, or (3) credit such excess against
future payments to be made to the Escrow Fund. If the Escrow Fund is not
sufficient to pay the items set forth in (a) and (b) above, Mortgagor shall
promptly pay to Collateral Agent, upon demand, an amount which Collateral Agent
shall estimate in good faith as sufficient to make up the deficiency.
The
Escrow Fund shall not constitute a trust fund, and until
expended or applied as above provided, any amounts in the Escrow Fund may be
commingled with the general funds of the Collateral Agent and shall constitute
additional security for the Debt.
No
earnings or interest on the Escrow Fund shall be payable to
Mortgagor.
6. Condemnation.
Mortgagor
shall give Collateral
Agent immediate
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding and shall deliver to Collateral
Agent copies
of
any and all papers served in connection with such proceedings. Notwithstanding
any taking by any public or quasi-public authority through eminent domain or
otherwise, the Mortgagor shall continue to pay the Debt at the time and in
the
manner provided for its payment in the Notes and this Mortgage and the Debt
shall not be reduced until any award or payment therefor shall have been
actually received and applied by the Mortgagee to the discharge of the Debt.
The
Mortgagee may apply the entire amount of any such award or payment to the
discharge of the Debt whether or not then due and payable in such order,
priority and proportions as the Mortgagee in its or his discretion shall deem
proper. If the Mortgaged Property is sold, through foreclosure or otherwise,
prior to the receipt by the Mortgagee of such award or payment, the Mortgagee
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive such award or payment, or
a
portion thereof sufficient to pay the Debt, whichever is less. The Mortgagor
shall file and prosecute its claim or claims for any such award or payment
in
good faith and with due diligence and cause the same to be collected and paid
over to the Collateral Agent. The Mortgagor hereby irrevocably authorizes and
empowers the Collateral Agent, in the name of the Mortgagor or otherwise, to
collect and receipt for any such award or payment and to file and prosecute
such
claim or claims. Although it is hereby expressly agreed that the same shall
not
be necessary in any event, the Mortgagor shall, upon demand of the Collateral
Agent, make, execute and deliver any and all assignments and other instruments
sufficient for the purpose of assigning any such award or payment to the
Mortgagee, free and clear of any encumbrances of any kind or nature
whatsoever.
-8-
7. Leases
and Rents.
Mortgagor represents that there are no leases or tenancies with respect to
the
Mortgaged Property. Mortgagor has and hereby does assign to Mortgagee the Rents
and Leases and Collateral Agent, on behalf of Mortgagee, shall have the right
to
enter the Mortgaged Property for the purposes of enforcing its interests in
the
Leases and the Rents. Nevertheless, subject to the terms of this paragraph
7,
Collateral Agent waives the right to enter the Mortgaged Property for the
purpose of collecting the Rents, and grants Mortgagor the right to collect
the
Rents. Mortgagor shall hold the Rents, or an amount sufficient to discharge
all
current sums due on the Debt, in trust for use in the payment of the Debt.
The
right of Mortgagor to collect the Rents may be revoked by Collateral Agent,
on
behalf of Mortgagee, upon any Event of Default (hereinafter defined). Upon
or at
any time after an Event or Default, Collateral Agent, on behalf of Mortgagee,
may, with or without entering upon and taking possession of the Mortgaged
Property, collect, retain and apply the Rents, less costs of operation and
collection (included but not limited to employment of guard service and
attorneys' fees), toward payment of the Debt in such priority and proportions
as
Collateral Agent in its discretion shall deem proper. Mortgagor shall furnish
Collateral Agent with executed copies of all Leases. All proposed Leases shall
be subject to the prior approval of Collateral Agent. Mortgagor shall submit
to
Collateral Agent all proposed Leases together with a summary of the proposed
business terms of such Lease, a description and identification of the proposed
tenant and such other information as Collateral Agent may thereafter request
concerning the proposed Lease and proposed tenant thereunder. All Leases shall
provide that they are subordinate to this Mortgage and that the lessee attorns
to Mortgagee. Mortgagor shall not, without the consent of Collateral Agent,
cancel, abridge or otherwise modify any Leases or accept prepayments of
installments of Rent under any Lease for a period of more than one (1) month
in
advance or further assign the whole or any part of the Leases or the Rents
without the consent of Collateral Agent. In respect of any Lease, Mortgagor
will
(a) fulfill or perform each and every provision thereof on the lessor's part
to
be fulfilled or performed; (b) promptly send copies to Collateral Agent of
all
notices of default which Mortgagor shall send or receive thereunder, and (c)
enforce all of the terms, covenants and conditions contained in the Leases
upon
the lessee's part to be performed, short of termination thereof. In addition
to
the rights which Collateral Agent, on behalf of Mortgagee, may have herein,
upon
the occurrence of any Event of Default, Collateral Agent, at its option, may
require Mortgagor to pay monthly in advance to Collateral Agent, on behalf
of
Mortgagee, or any receiver appointed to collect the Rents, the fair and
reasonable rental value for the use and occupation of such part of the Mortgaged
Property as may be in possession of Mortgagor and may require Mortgagor to
vacate and surrender possession of the Mortgaged Property to Collateral Agent,
or to such receiver and, in default thereof, Mortgagor may be evicted by summary
proceedings or otherwise. Nothing contained in this paragraph shall be construed
as imposing on the Mortgagee or Collateral Agent any of the obligations of
the
lessor under the Leases.
-9-
8. Maintenance
of the Mortgaged Property.
The
Mortgagor shall cause the Mortgaged Property to be maintained in good condition
and repair and will not commit or suffer to be committed any waste of the
Mortgaged Property, and following validation or certification by the Food and
Drug Administration (“FDA”)
the
Mortgagor shall cause the Mortgaged Property to be maintained in compliance
with
the Current Good Manufacturing Practice Regulations (“CGMP”)
of the
FDA for drug manufacture and processing. 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 the Collateral Agent. The Mortgagor shall promptly comply with all
existing and future governmental laws, orders, ordinances, rules and regulations
(including without limitation the FDA and CGMP) affecting the Mortgaged
Property, or any portion thereof or the use thereof. The Mortgagor shall
promptly repair, replace or rebuild any part of the Mortgaged Property which
may
be damaged or destroyed by fire or other property hazard or casualty (including
any fire or other property hazard or casualty for which insurance was not
obtained or obtainable) or which may be affected by any taking by any public
or
quasi-public authority through eminent domain or otherwise, and shall complete
and pay for, within a reasonable time, any structure at any time in the process
of construction or repair on the Premises. If such fire or other property hazard
or casualty shall be covered by the Policies, the Mortgagor's obligation to
repair, replace or rebuild such portion of the Mortgaged Property shall be
contingent upon the Mortgagee paying the Mortgagor the proceeds of the Policies,
or such portion thereof as shall be sufficient to complete such repair,
replacement or rebuilding, whichever is less. The Mortgagor will not, without
obtaining the prior consent of the Collateral Agent, initiate, join in or
consent to any private restrictive covenant, zoning ordinance, or other public
or private restrictions, limiting or affecting the uses which may be made of
the
Mortgaged Property or any part thereof
9. Environmental
Provisions.
(a) For
the
purposes of this Section the following terms shall have the following meanings:
(i) the term “Hazardous
Material”
shall
mean any material or substance that, whether by its nature or use, is now or
hereafter defined or regulated as a hazardous waste, hazardous substance,
pollutant or contaminant under any Environmental Requirement, or which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous or which is or contains petroleum, gasoline,
diesel fuel, another petroleum hydrocarbon product, asbestos,
asbestos-containing materials or polychlorinated biphenyls, (ii) the
“Environmental
Requirements”
shall
collectively mean all present and future laws, statutes, common law, ordinances,
rules, regulations, orders, codes, licenses, permits, decrees, judgments,
directives or the equivalent of or by any Governmental Authority and relating
to
or addressing the protection of the environment or human health, and (iii)
the
term “Governmental
Authority”
shall
mean the Federal government, or any state or other political subdivision, or
any
agency, court or body of the Federal government, any state or other political
subdivision, exercising executive, legislative, judicial, regulatory or
administrative functions.
(b) The
Mortgagor hereby represents and warrants to the Mortgagee that (i) no Hazardous
Material regulated or otherwise defined by any Governmental Authority is
currently located at, on, in, under or about the Mortgaged Property which has
not been generated, stored, handled, processed, disposed of, or otherwise used,
by Mortgagor in compliance in all material respects with the Environmental
Requirements, (ii) no releasing, emitting, discharging, leaching, dumping,
disposing or transporting of any Hazardous Material from the Mortgaged Property
onto any other property or from any other property onto or into the Mortgaged
Property has occurred while the Mortgaged Property was owned by the Mortgagor
or
is occurring in violation of any Environmental Requirement and to the
Mortgagor’s knowledge no releasing, emitting, discharging, leaching, dumping,
disposing or transporting of any Hazardous Material from the Mortgaged Property
onto any other property or from any other property onto or into the Mortgaged
Property has occurred at any other time, (iii) no notice of violation,
non-compliance, liability or potential liability, lien, complaint, suit, order
or other notice with respect to the Mortgaged Property is presently outstanding
under any Environmental Requirement, nor does the Mortgagor have knowledge
or
reason to believe that any such notice will be received or is being threatened,
and (iv) the Mortgaged Property and the operation thereof are and will be in
full compliance with all Environmental Requirements in all material
respects.
-10-
(c) The
Mortgagor shall comply, and shall cause all tenants or other occupants of the
Mortgaged Property to comply, in all material respects with all Environmental
Requirements, and will not generate, store, handle, process, dispose of or
otherwise use, and will not permit any tenant or other occupant of the Mortgaged
Property to generate, store, handle, process, dispose of or otherwise use,
Hazardous Materials at, in, on, or about the Mortgaged Property in a manner that
could lead or potentially lead to the imposition on the Mortgagor, the Mortgagee
or the Mortgaged Property of any liability or lien of any nature whatsoever
under any Environmental Requirement. The Mortgagor shall notify the Collateral
Agent promptly in the event of any spill or other release of any Hazardous
Material at, in, on, under or about the Mortgaged Property which is required
to
be reported to a Governmental Authority under any Environmental Requirement,
will promptly forward to the Collateral Agent copies of any notices received
by
the Mortgagor relating to alleged violations of any Environmental Requirement
or
any potential liability under any Environmental Requirement and will promptly
pay when due any fine or assessment against the Mortgagee, the Mortgagor or
the
Mortgaged Property relating to any Environmental Requirement. If at any time
it
is determined that the operation or use of the Mortgaged Property is in
violation of any applicable Environmental Requirement or that there are
Hazardous Materials located at, in, on, under or about the Mortgaged Property
which violates any applicable Environmental Requirement or that there are
Hazardous Materials located at, in, on, under or about the Mortgaged Property
which, under any Environmental Requirement, require special handling in
collection, storage, treatment or disposal, or any form of cleanup or corrective
action, the Mortgagor shall, within thirty (30) days after receipt of notice
thereof from any Governmental Authority or from the Collateral Agent, take,
at
the Mortgagor's sole cost and expense, such actions as may be necessary to
fully
comply in all respects with all Environmental Requirements, provided, however,
that if such compliance cannot reasonably be completed within such thirty (30)
day period, the Mortgagor shall commence such necessary action within such
thirty (30) day period and shall thereafter diligently and expeditiously proceed
to fully comply in all respects and in a timely fashion with all Environmental
Requirements.
(d) If
the
Mortgagor fails to timely take, or to diligently and expeditiously proceed
to
complete in a timely fashion, any such action described in clause (c) above,
the
Collateral Agent, on the Mortgagee’s behalf, may, in its sole and absolute
discretion, make advances or payments toward the performance or satisfaction
of
the same, but shall in no event be under any obligation to do so. All sums
so
advanced or paid by the Collateral Agent (including, without limitation,
reasonable counsel and consultant fees and expenses, investigation and
laboratory fees and expenses, and fines or other penalty payments) and all
sums
advanced or paid in connection with any judicial or administrative investigation
or proceeding relating thereto, will immediately, upon demand, become due and
payable from the Mortgagor and shall bear interest at the Default Rate from
the
date any such sums are so advanced or paid by the Collateral Agent until the
date any such sums are repaid by the Mortgagor to the Collateral Agent. The
Mortgagor will execute and deliver, promptly upon request, such instruments
as
the Collateral Agent reasonably may deem useful or necessary to permit the
Collateral Agent to take any such action, and such additional notes and
mortgages, as the Collateral Agent may require to secure all sums so advanced
or
paid by the Collateral Agent. If a lien is filed against the Mortgaged Property
by any Governmental Authority resulting from the need to expend or the actual
expending of monies arising from an action or omission, whether intentional
or
unintentional, of the Mortgagor or for which the Mortgagor is responsible,
resulting in the releasing, spilling, leaking, leaching, pumping, emitting,
pouring, emptying or dumping of any Hazardous Material into the waters or onto
land located within or without the state where the Mortgaged Property is
located, then the Mortgagor will, within thirty (30) days from the date that
the
Mortgagor is first given notice that such lien has been placed against the
Mortgaged Property (or within such shorter period of time as may be specified
by
the Mortgagee if such Governmental Authority has commenced steps to cause the
Mortgaged Property to be sold pursuant to such lien), either (a) pay the claim
and remove the lien, or (b) furnish a cash deposit, bond, or such other security
with respect thereto as is satisfactory in all respects to the Collateral Agent
and is sufficient to effect a complete discharge of such lien on the Mortgaged
Property.
-11-
(e) The
Collateral Agent may, at its option, at intervals of not less than one year,
or
more frequently if the Collateral Agent reasonably believes that a Hazardous
Material or other environmental condition violates or threatens to violate
any
Environmental Requirement, require
Mortgagor to perform (at Mortgagor's expense) an environmental audit and, if
deemed necessary by Collateral
Agent,
an
environmental risk assessment, each of which must be satisfactory to
Collateral
Agent,
with
regard to the Mortgaged Property or with regard to the hazardous waste
management practices and/or hazardous waste disposal sites used by Mortgagor
in
connection with the Mortgaged Property. Mortgagor
shall cooperate in all reasonable ways with the Collateral Agent in connection
with any such audit. Such
audit and/or risk assessment must be by an environmental consultant
satis-fac-tory to Collateral
Agent.
Should
Mortgagor fail to perform any such environmental audit or risk assessment within
thirty (30) days of the Collateral
Agent’s
written request, Collateral
Agent
shall
have the right but not the obligation to retain an environmental consultant
to
perform any such environmental audit or risk assessment. All costs and expenses
incurred by Collateral
Agent
in the
exercise of such rights shall be secured by this Mortgage and shall be payable
by Mortgagor upon demand or charged to Mortgagor's loan balance at the
discretion of Collateral
Agent.
(f) If
this
Mortgage is foreclosed, or if the Mortgaged Property is sold pursuant to the
provisions of this Mortgage, or if the Mortgagor tenders a deed or assignment
in
lieu of foreclosure or sale, the Mortgagor shall deliver the Mortgaged Property
to the purchaser at foreclosure or sale or to the Mortgagee, its nominee, or
wholly-owned subsidiary, as the case may be, in a condition that complies in
all
respects with all Environmental Requirements.
(g) Except
to
the extent directly and solely caused by the gross negligence or willful
misconduct of the Mortgagee or Collateral Agent or their employees, officers,
directors, contractors, or authorized agents, the Mortgagor will defend,
indemnify, and hold harmless the Mortgagee and Collateral Agent and their
investors, participants, employees, agents, officers, and directors, from and
against any and all claims, demands, penalties, causes of action, fines,
liabilities, settlements, damages, costs, or expenses of whatever kind or
nature, known or unknown, foreseen or unforeseen, contingent or otherwise
(including, without limitation, reasonable counsel and consultant fees and
expenses, investigation and laboratory fees and expenses, court costs, and
litigation expenses) arising out of, or in any way related to, (i) any breach
by
the Mortgagor of any of the provisions of this Section 9, (ii) the presence,
disposal, spillage, discharge, emission, leakage, release, or threatened release
of any Hazardous Material which is at, in, on, under, about, from or affecting
the Mortgaged Property, including, without limitation, any damage or injury
resulting from any such Hazardous Material to or affecting the Mortgaged
Property or the soil, water, air, vegetation, buildings, personal property,
persons or animals located on the Mortgaged Property or on any other property
or
otherwise, (iii) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to any such Hazardous
Material, (iv) any lawsuit brought or threatened, settlement reached, or order
or directive of or by any Governmental Authority relating to such Hazardous
Material, (v) any violation of any Environmental Requirement by Mortgagor,
or
(vi) any enforcement of this indemnification. The aforesaid indemnification
shall, notwithstanding any exculpatory or other provision of any other document
or instrument now or hereafter executed and delivered in connection with the
loan evidenced by the Notes and secured by this Mortgage, constitute the
personal recourse undertakings, obligations and liabilities of the
Mortgagor.
-12-
(h) The
obligations and liabilities of the Mortgagor under this Section 9 shall survive
and continue in full force and effect and shall not be terminated, discharged
or
released, in whole or in part, irrespective of whether the Debt has been paid
in
full and irrespective of any foreclosure of this Mortgage, sale of the Mortgaged
Property pursuant to the provisions of this Mortgage or acceptance by the
Mortgagee, its nominee or affiliate of a deed or assignment in lieu of
foreclosure or sale and irrespective of any other fact or circumstance of any
nature whatsoever.
10. Estoppel
Certificates.
After
request by Collateral Agent, Mortgagor, within ten (10) days and at its expense,
will furnish Collateral Agent with a statement, duly acknowledged and certified,
setting forth the amount of the original principal amount of each of the Notes,
the unpaid principal amount of each of the Notes, the rate of interest of the
Notes, the date installments of interest and/or principal were last paid, any
offsets or defenses to the payment of the Debt, and that the Notes and this
Mortgage are valid, legal and binding obligations and have not been modified
or
if modified, giving particulars of such modification.
11. Transfer
or Encumbrance of the Mortgaged Property.
Except
to the extent permitted and in accordance with the terms of Section 7.2(c)
of
the Purchase Agreement, no part of the Mortgaged Property nor any interest
of
any nature whatsoever therein (whether record, beneficial, or otherwise) shall
in any manner be further encumbered, sold, transferred or conveyed, or permitted
to be further encumbered, sold, transferred, assigned or conveyed without the
prior consent of the Collateral Agent, which consent in any and all
circumstances may be withheld in the sole and absolute discretion of the
Collateral Agent. The provisions of the foregoing sentence of this paragraph
shall apply to each and every such further encumbrance, sale, transfer,
assignment or conveyance, regardless of whether or not the Collateral Agent
has
consented to, or waived by its action or inaction its rights hereunder with
respect to, any such previous further encumbrance, sale, transfer, assignment
or
conveyance, and irrespective of whether such further encumbrance, sale,
transfer, assignment or conveyance is voluntary, by reason of operation of
law
or is otherwise made.
A sale,
transfer or conveyance within the meaning of this para-graph shall be deemed
to
include (a) an installment sales agreement wherein Mortgagor agrees to sell
the
Mortgaged Property or any part thereof for a price to be paid in installments,
and (b) an agreement by Mortgagor leasing all or a substantial part of the
Mortgaged Property or 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;
-13-
12. Notice.
Any
notice, request, demand, statement, authorization, approval or consent made
hereunder shall be in writing and shall be hand delivered or sent by Federal
Express, or other reputable courier service, or by postage pre-paid registered
or certified mail, return receipt requested, and shall be deemed given (i)
when
received at the following addresses if hand delivered or sent by Federal
Express, or other reputable courier service, and (ii) three (3) business days
after being postmarked and addressed as follows if sent by registered or postage
pre-paid certified mail, return receipt requested:
If
to the
Mortgagor:
NexMed
(U.S.A.), Inc.
00
Xxxx
Xxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Fax:
(000) 000-0000
Attention:
Chief Financial Officer
With
a
copy to:
Xxxxxx
Xxxxxx Xxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxxx Xxxx, Esq.
If
to the
Collateral Agent or if to Mortgagee:
c/o
The
Tail Wind Fund Ltd.
c/o
Tail
Wind Advisory and Management Ltd.
00
Xxxx
Xxxx
Xxxxxx
XX0X 0XX XX
Facsimile:
44-207- 420 3819
Attn: Xxxxx
Xxxxx
-14-
With
a
copy to:
Xxxxx
X.
Xxxxxxx, P.C.
000
Xxxx
00xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telephone:
000-000-0000
Facsimile:
212-433-1361
Each
party to this Mortgage may designate a change of address by notice given, as
herein provided, to the other party ten (10) days prior to the date such change
of address is to become effective.
13. Sale
of Mortgaged Property.
If this
Mortgage is foreclosed, the Mortgaged Property, or any interest therein, may,
at
the discretion of the Collateral Agent, on behalf of the Mortgagee, be sold
in
one or more parcels or in several interests or portions and in any order or
manner.
14. Changes
in Laws Regarding Taxation.
In the
event of the passage after the date of this Mortgage of any law which deducts
from the value of real property for the purpose of taxation any lien or
encumbrance thereon or changing in any way the laws for the taxation of
mortgages or debts secured by mortgages for state or local purposes or the
manner of the collection of any such taxes, and imposing a tax, either directly
or indirectly, on this Mortgage, the Notes or the Debt, the Mortgagor shall
pay
any tax imposed as a result of any such law within the statutory period or
within fifteen (15) days after demand by the Collateral Agent, whichever is
less.
15. No
Credits on Account of the Debt.
The
Mortgagor will not claim or demand or be entitled to any credit or credits
on
account of the Debt for any part of the Taxes assessed against the Mortgaged
Property or any part thereof and no deduction shall otherwise be made or claimed
from the taxable value of the Mortgaged Property, or any part thereof, by reason
of this Mortgage or the Debt. If at any time this Mortgage shall secure less
than all of the principal amount of the Debt, it is expressly agreed that any
repayment of the principal amount of the Debt shall not reduce the amount of
the
lien of this Mortgage until the lien amount shall equal the principal amount
of
the Debt outstanding.
16. Documentary
Stamps.
If at
any time the United States of America, any state thereof, or any governmental
subdivision of any such state, shall require revenue or other stamps to be
affixed to the Note or this Mortgage, the Mortgagor will pay for the same,
with
interest and penalties thereon, if any.
17. Right
of Entry.
Upon
reasonable prior notice, the Collateral Agent and its agents shall have the
right to enter and inspect the Mortgaged Property at all reasonable times during
normal business hours.
-15-
18. Books
and Records.
The
Mortgagor will keep and maintain or will cause to be kept and maintained on
a
fiscal year basis in accordance with generally accepted accounting practices
consistently applied proper and accurate books, records and accounts reflecting
all of the financial affairs of the Mortgagor relating to the Mortgaged Property
and all items of income and expense in connection with the operation of the
Mortgaged Property or in connection with any services, equipment or furnishings
provided in connection with the operation of the Mortgaged Property, whether
such income or expense be realized by the Mortgagor or by any other person
whatsoever excepting lessees unrelated to and unaffiliated with the Mortgagor
who have leased from the Mortgagor portions of the Mortgaged Property for the
purpose of occupying the same. The Collateral Agent shall have the right from
time to time at all times during normal business hours after reasonable prior
notice to Mortgagor to examine such books, records and accounts at the office
of
the Mortgagor or other person maintaining such books, records and accounts
and
to make copies or extracts thereof as the Collateral Agent shall desire;
provided,
however,
that
Mortgagor shall not provide any material non-public information to the
Collateral Agent unless the Collateral Agent consents to same in advance and,
if
reasonably requested by Mortgagor, enters into a reasonable confidentiality
agreement with the Mortgagor. The Mortgagor will furnish the Collateral Agent
annually, within ninety (90) days next following the end of each fiscal year
of
the Mortgagor, a certificate signed by a duly authorized representative of
the
Mortgagor certifying on the date thereof either that there does or does not
exist an event which constitutes, or which upon notice or lapse of time or
both
would constitute, a default or an Event of Default under this Mortgage and
if
such default or Event of Default exists, the nature thereof and the period
of
time it has existed.
19. Performance
of Other Agreements.
The
Mortgagor shall observe and perform each and every term to be observed or
performed by the Mortgagor pursuant to the terms of any agreement or recorded
instrument affecting or pertaining to the Mortgaged Property.
20. Events
of Default.
The
occurrence of any one or more of the following events (herein collectively
referred to as “Events of Default”) shall be an Event of Default:
(a) if
any
portion of the Debt is not paid within three (3) days after notice by the
Collateral Agent or Mortgagee to the Mortgagor that the same is past
due;
(b) if
the
Mortgagor shall fail to pay on or before the due date, any installment of any
assessment against the Mortgaged Property for local improvements heretofore
or
hereafter laid, which assessment is or may become payable in annual or periodic
installments and is or may become a lien on the Mortgaged Property;
(c) if
any
of
the Taxes are not paid when same are due and payable;
(d) if
without the consent of the Collateral Agent (which consent in any and all
circumstances may be withheld in the sole and absolute discretion of the
Collateral Agent) any part of the Mortgaged Property or any interest of any
nature whatsoever therein is in any manner, by operation of law or otherwise,
whether directly or indirectly, further encumbered, sold, transferred, assigned
or conveyed, and irrespective of whether any such further encumbrance, sale,
transfer, assignment or conveyance is voluntary, by reason or operation of
law
or is otherwise made;
(e) if
without the consent of the Collateral Agent any Improvement or the Equipment
(except for the normal ordinary course of business replacement of the Equipment
and the normal ordinary course of business removal of obsolete Equipment) is
removed, demolished or materially altered, or if the Mortgaged Property is
not
kept in good condition and repair;
-16-
(f) if
the
Mortgagor shall fail to comply with any requirement or order or notice of
violation of law or ordinance issued by any governmental department claiming
jurisdiction over the Mortgaged Property, which failure could reasonably be
expected to have a material adverse effect on the Mortgaged Property, within
three (3) months from the issuance thereof, or the time period set forth
therein, whichever is less;
(g) if
the
Policies are not kept in full force and effect, or if the Policies are not
delivered to the Mortgagee upon request;
(h) if
the
Mortgagor shall fail to pay Collateral Agent or any Mortgagee on demand for
all
Premiums and/or Taxes paid by the Collateral Agent or Mortgagee pursuant to
this
Mortgage, together with any late payment charge and interest thereon calculated
at the Default Rate;
(i) if
without the consent of the Collateral Agent any Leases are made, cancelled
or
modified or if any portion of the Rents is paid for a period of more than one
(1) month in advance or if any of the Rents are further assigned;
(j) if
any
representation or warranty of the Mortgagor or Parent herein, or in any
certificate, report, financial statement or other instrument furnished in
connection with the making of this Mortgage, shall prove false or misleading
in
any material respect;
(k) if
the
Mortgagor or Parent shall make an assignment for the benefit of
creditors;
(l) if
a
court of competent jurisdiction enters a decree or order for relief with respect
to the Mortgagor or Parent under Title 11 of the United States Code as now
constituted or hereafter amended or under any other applicable Federal or state
bankruptcy law or other similar law, or if such court enters a decree or order
appointing a receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of the Mortgagor or Parent, or of any substantial part of their
respective properties, or if such court decrees or orders the winding up or
liquidation of the affairs of the Mortgagor, Parent or any other
guarantor;
(m) if
the
Mortgagor or Parent fails generally to pay its respective debts as such debts
become due;
(n) if
the
Mortgagor or Parent shall be in default under any mortgage or deed of trust
covering any part of the Mortgaged Property whether superior or inferior in
lien
to this Mortgage, and including, without limitation, any such mortgage or deed
of trust now or hereafter held by the Mortgagee;
(o) if
the
Mortgaged Property shall become subject (i) to any tax lien, other than a lien
for local real estate taxes and assessments not due and payable, or (ii) to
any
lis pendens, notice of pendency, stop order, notice of intention to file
mechanic's or materialman's lien, mechanic's or materialman's lien or other
lien
of any nature whatsoever and the same shall not either be discharged of record
or in the alternative effectively subordinated and insured over to the
satisfaction of the Collateral Agent by a title company selected by Collateral
Agent that will insure the lien of this Mortgage (at Mortgagor’s expense) within
a period of thirty (30) days after the same is filed or recorded, and
irrespective of whether the same is superior or subordinate in right or other
priority to the lien of this Mortgage and irrespective of whether the same
constitutes a perfected or inchoate lien or encumbered on the Mortgaged Property
or is only a matter of record or notice;
-17-
(p) if
the
Mortgagor or Parent shall continue to be in default or breach under any of
the
other terms, covenants or conditions of this Mortgage, the Guaranty, the
Purchase Agreement, the Registration Rights Agreement or the Notes (as such
terms are defined in the Purchase Agreement), for thirty (30) days after notice
from the Collateral Agent; or
(q) If
an
“Event of Default” occurs under any of the Notes (as defined
therein).
21. Remedies.
Upon
the happening of any one or more of said Events of Default, the entire unpaid
balance of the principal, and accrued interest, and all other sums secured
by
this Mortgage shall at the option of Collateral Agent, on behalf of the
Mortgagee, become immediately due and payable without further notice or demand,
and in any such Event of Default, the Mortgagee or the Collateral Agent on
behalf of the Mortgagee, may forthwith undertake any one or more of the
following:
(a) Declare
the debt to be immediately due and payable, and thereupon the same shall become
immediately due and payable;
(b) Recover
judgment against Mortgagor for any debt; and neither the recovery of judgment
nor the levy of execution thereof on any property, including the Premises,
shall
affect Mortgagee’s rights hereunder or the lien hereof;
(c) Enter
upon and take possession of the Premises, or have a receiver appointed (as
more
fully provided for in the following Section), without proof of depreciation
in
the value of the Premises, inadequacy of the Premises, or insolvency of
Mortgagor; and Mortgagee or the receiver may lease the Premises, in the name
of
Mortgagor, Collateral Agent, on behalf of the Mortgagee, or the receiver, and
may receive the rents issues and profits and apply the same:
(i) To
the
payment of expenses of operating, maintaining, repairing and improving the
Premises, including renting commission and rental collection commissions paid
to
an agent of Mortgagee or of the receiver; and/or
(ii) On
account of the Notes, in such order and in such amounts as Collateral Agent,
on
behalf of the Mortgagee, or the receiver determines, but while in possession
of
the Premises, Collateral Agent or the receiver shall be liable to account only
for the rents, issues and profits actually received; and/or
(d) Take
such
other action to protect and enforce Mortgagee’s rights hereunder and the lien
hereof, as Mortgagee or Collateral Agent deems advisable, including without
limitation:
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(i) The
foreclosure hereof, subject, at Mortgagee’s option, and upon the filing of a
Complaint in Foreclosure, Mortgagee shall be entitled to the appointment of
a
receiver of the rents of the Premises without the necessity of either inadequacy
of the security or insolvency of the Mortgagor or any person who may be legally
or equitably liable to pay money secured by this Mortgage, and the Mortgagor
and
each person waive such proof and consent to the appointment of such receiver;
and in any proceeding to enforce any liability of the debt, Mortgagor shall
not
assert as a defense that Mortgagee failed to foreclosure any such rights or
that
any such rights adversely affected the value of the Premises; and
(ii) The
sale of
the Premises, in a foreclosure proceeding, and without obligation to have the
Premises marshaled.
22. Right
to Cure Default.
If
default in the performance of any of the covenants of the Mortgagor herein
occurs, the Collateral Agent, on behalf of the Mortgagee, may, at its
discretion, remedy the same and for such purpose shall have the right to enter
upon the Mortgaged Property or any portion thereof without thereby becoming
liable to the Mortgagor or any person in possession thereof holding under the
Mortgagor. If Collateral Agent shall remedy such a default or appear in, defend,
or bring any action or proceeding to protect its interest in the Mortgaged
Property or to foreclose this Mortgage or collect the Debt, the costs and
expenses thereof (including reasonable attorneys' fees to the extent permitted
by law), with interest as provided in this paragraph, shall be paid by the
Mortgagor to the Collateral Agent upon demand. All such costs and expenses
incurred by the Collateral Agent in remedying such default or in appearing
in,
defending, or bringing any such action or proceeding shall be paid by the
Mortgagor to the Collateral Agent upon demand, with interest (calculated for
the
actual number of days elapsed between the incurrence thereof and Mortgagor’s
reimbursement thereof on the basis of a 360-day year) at a rate per annum equal
to 13% plus the rate of cash interest provided in the Notes (herein referred
to
as the “Default
Rate”),
provided,
however,
that
the Default Rate shall in no event exceed the maximum interest rate which the
Mortgagor may by law pay, for the period after notice from the Collateral Agent
that such costs or expenses were incurred to the date of payment to the
Collateral Agent. To the extent any of the aforementioned costs or expenses
paid
by the Collateral Agent after default by the Mortgagor shall constitute payment
of (i) taxes, charges or assessments which 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, but not limited to, the costs and expenses of any litigation to
collect the indebtedness secured by this Mortgage or to prosecute, defend,
protect or preserve the rights and the lien created by this Mortgage, or (iv)
any amount, cost or charge to which the Mortgagee becomes subrogated, upon
payment, whether under recognized principles of law or equity, or under express
statutory authority; then, and in each such event, such costs, expenses and
amounts, together with interest thereon at the Default Rate, shall be added
to
the indebtedness secured by this Mortgage and shall be secured by this
Mortgage.
23. Appointment
of Receiver.
The
Collateral Agent, on behalf of the Mortgagee, in any action to foreclose this
Mortgage or upon the actual or threatened waste to any part of the Mortgaged
Property or upon the occurrence of any Event of Default hereunder, shall be
at
liberty, without notice, to apply for the appointment of a receiver of the
Rents, and shall be entitled to the appointment of such receiver as a matter
of
right, without regard to the value of the Mortgaged Property as security for
the
Debt, or the solvency or insolvency of any person then liable for the payment
of
the Debt.
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24. Non-Waiver.
The
failure of the Mortgagee or Collateral Agent to insist upon strict performance
of any term of this Mortgage shall not be deemed to be a waiver of any term
of
this Mortgage. The Mortgagor shall not be relieved of the Mortgagor's obligation
to pay the Debt at the time and in the manner provided for its payment in the
Notes and this Mortgage by reason of (i) failure of the Mortgagee or Collateral
Agent to comply with any request of the Mortgagor to take any action to
foreclose this Mortgage or otherwise enforce any of the provisions hereof or
of
the Notes or any other mortgage, instrument or document evidencing, securing
or
guaranteeing payment of the Debt or any portion thereof, (ii) the release,
regardless of consideration, of the whole or any part of the Mortgaged Property
or any other security for the Debt, or (iii) any agreement or stipulation
between the Mortgagee or Collateral Agent and any subsequent owner or owners
of
the Mortgaged Property or other person extending the time of payment or
otherwise modifying or supplementing the terms of the Notes, this Mortgage
or
any other mortgage, instrument or document evidencing, securing or guaranteeing
payment of the Debt or any portion thereof, without first having obtained the
consent of the Mortgagor, and in the latter event, the Mortgagor shall continue
to be obligated to pay the Debt at the time and in the manner provided in the
Notes and this Mortgage, as so extended, modified and supplemented, unless
expressly released and discharged from such obligation by the Mortgagee in
writing. Regardless of consideration, and without the necessity for any notice
to or consent by the holder of any subordinate lien, encumbrance, right, title
or interest in or to the Mortgaged Property, the Mortgagee may release any
person at any time liable for the payment of the Debt or any portion thereof
or
any part of the security held for the Debt and may extend the time of payment
or
otherwise modify the terms of the Notes or this Mortgage, including, without
limitation, a modification of the interest rate payable on the principal balance
of the Notes, without in any manner impairing or affecting this Mortgage or
the
lien thereof or the priority of this Mortgage, as so extended and modified,
as
security for the Debt over any such subordinate lien, encumbrance, right, title
or interest. The Mortgagee may resort for the payment of the Debt to any other
security held by the Mortgagee in such order and manner as the Mortgagee, in
its
discretion, may elect. The Mortgagee or the Collateral Agent may take action
to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of the Mortgagee thereafter to foreclose this
Mortgage. The Mortgagee shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled to every additional right and
remedy now or hereafter afforded by law. The rights of the 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 any Mortgagee or the Collateral
Agent shall be construed as an election to proceed under any one provision
herein to the exclusion of any other provision.
25. Liability.
If the
Mortgagor consists of more than one person, the obligations and liabilities
of
each such person hereunder shall be joint and several.
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26. Security
Agreement.
This
Mortgage constitutes both a real property mortgage and a “security agreement”
within the meaning of the Uniform Commercial Code, and the Mortgaged Property
includes both real and personal property and all other rights and interest,
whether tangible or intangible in nature, of the Mortgagor in the Mortgaged
Property. If an Event of Default shall occur under the Notes or this Mortgage,
the Mortgagee and the Collateral Agent on behalf of the 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
Mortgaged Property or any part thereof, and to take such other measures as
the
Mortgagee or the Collateral Agent may deem necessary for the care, protection
and preservation of the Mortgaged Property. Upon request or demand of the
Collateral Agent, the Mortgagor shall at its expense assemble the Mortgaged
Property and make it available to the Collateral Agent at a convenient place
acceptable to the Collateral Agent. The Mortgagor shall pay to the Collateral
Agent on demand any and all expenses, including reasonable legal expenses and
attorneys' fees, incurred or paid by the Collateral Agent in enforcing or
exercising its rights hereunder with respect to the Mortgaged Property. Any
notice of sale, disposition or other intended action by the Mortgagee or
Collateral Agent with respect to the Mortgaged Property sent to the Mortgagor
in
accordance with the provisions of this Mortgage at least seven (7) days prior
to
the date of any such sale, disposition or other action, shall constitute
reasonable notice to the Mortgagor, and the method of sale or disposition or
other intended action set forth or specified in such notice shall conclusively
be deemed to be commercially reasonable within the meaning of the Uniform
Commercial Code unless objected to in writing by the Mortgagor within five
(5)
days after receipt by the Mortgagor of such notice. The proceeds of any sale
or
disposition of the Mortgaged Property, or any part thereof, may be applied
by
the Mortgagee to the payment of the Debt in such order, priority and proportions
as the Mortgagee in its discretion shall deem proper. If any change shall occur
in the Mortgagor's name, the Mortgagor shall promptly cause to be filed at
its
own expense, new financing statements as required under the Uniform Commercial
Code to replace those on file in favor of the Mortgagee or Collateral Agent
on
behalf of Mortgagee.
27. Filings.
(a)
Mortgagor
forthwith upon the execution and delivery of this Mortgage and thereafter,
from
time to time, will cause this Mortgage, and any security instru-ment 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 protect and perfect the
lien
or security interest hereof upon, and the interest of Mortgagee in, the
Mortgaged Property. Upon
such
filings, the Mortgagee shall have a perfected first priority security interest
in the Mortgaged Property.
(b) The
Mortgagor will pay 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. The Mortgagor shall hold harmless and indemnify the
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.
28. Further
Acts, etc.
The
Mortgagor will, at the cost of the Mortgagor, and without expense to the
Mortgagee, do, execute, acknowledge and deliver all and every such further
acts,
deeds, conveyances, mortgages, assignments, notices of assignments, transfers
and assurances, including without limitation UCC-1 Financing Statements, as
the
Collateral Agent reasonably or any present or future law shall, from time to
time, require for the better assuring, conveying, assigning, transferring
protecting, preserving, perfecting and confirming unto the Mortgagee the
property and rights hereby mortgaged or intended now or hereafter so to be,
or
which the Mortgagor may be or may hereafter become bound to convey or assign
to
the 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 and, on demand, will execute and deliver and hereby authorizes the
Collateral Agent and Mortgagee to execute in the name of the Mortgagor to the
extent the Collateral Agent or Mortgagee may lawfully do so, one or more
financing statements, chattel mortgages or comparable security instruments,
to
evidence more effectively the lien hereof upon the Mortgaged
Property.
-21-
29. 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 defined or limiting, in any
way, the scope or intent of the provisions hereof.
30. Usury
Laws.
This
Mortgage and the Notes are subject to the express condition that at no time
shall the Mortgagor be obligated or required to pay interest on the principal
balance due under the Notes at a rate which could subject the holders of the
Notes to either civil or criminal liability as a result of being in excess
of
the maximum interest rate which the Mortgagor is permitted by law to contract
or
agree to pay. If by the terms of this Mortgage, the Guaranty or the Notes,
the
Mortgagor is at any time required or obligated to pay interest on the principal
balance due under the Notes at a rate in excess of such maximum rate, the rate
of interest under the Notes shall be deemed to be immediately reduced to such
maximum rate and the interest payable shall be computed at such maximum rate
and
all prior interest payments in excess of such maximum rate shall be applied
and
shall be deemed to have been payments in reduction of the principal balance
of
the Notes.
31. Sole
Discretion of Mortgagee/Collateral Agent.
Except
as may otherwise be expressly provided to the contrary, wherever pursuant to
the
Notes, this Mortgage, or any other document or instrument now or hereafter
executed and delivered in connection therewith or otherwise with respect to
the
loan secured hereby, the Mortgagee or the Collateral Agent exercises any right
given to it or him to consent or not consent, or to approve or disapprove,
or
any arrangement or term is to be satisfactory to the Mortgagee or Collateral
Agent, the decision of the Mortgagee or Collateral Agent to consent or not
consent, or to approve or disapprove, or to decide that arrangements or terms
are satisfactory or not satisfactory, shall be in the sole and absolute
discretion of the Mortgagee and Collateral Agent and shall be final and
conclusive, except as is otherwise required by applicable law.
32. Recovery
of Sums Required To Be Paid.
The
Mortgagee shall have the right from time to time to take action to recover
any
sum or sums which constitute a part of the Debt as the same become due, without
regard to whether or not the balance of the Debt shall be due, and without
prejudice to the right of the Mortgagee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by the Mortgagor
existing at the time such earlier action was commenced.
33. Actions
and Proceedings.
The
Collateral Agent shall have the right, at the expense of Mortgagor, to appear
in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to bring any action or proceeding, in the name and on behalf of
the
Mortgagor, which the Collateral Agent, in its reasonable discretion, determines
should be brought to protect its interest in the Mortgaged
Property.
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34. Execution.
This
Mortgage may be executed in any number of duplicate originals and each such
duplicate original shall be deemed to constitute but one and the same
instrument. This Mortgage, once executed by the Mortgagor, may be delivered
by
facsimile transmission, and a facsimile signature shall have the same force
and
effect as an original signature, provided that an original shall also be
delivered to the Mortgagee.
35. Certain
Definitions.
Unless
the context clearly indicates a contrary intent or unless otherwise specifically
provided herein, words used in this Mortgage shall be used interchangeably
in
singular or plural form; the word "Mortgagor"
shall
mean "each Mortgagor and/or any subsequent owner or owners of the Mortgaged
Property or any part thereof or interest therein;" the word "Mortgagee"
shall
mean “Mortgagee or any subsequent holder of any of the Notes” and shall included
each Mortgagee individually and collectively; the word "Notes"
shall
mean "the Notes or any other evidence of indebtedness secured by this Mortgage;"
the word "person"
shall
include an individual, corpora-tion, partnership, trust, unincorporated
association, govern-ment, governmental authority or other entity; the words
"Mortgaged
Property"
shall
include any portion of the Mortgaged Property or interest therein; the word
"Debt"
shall
mean the principal balance of the Notes with interest thereon as provided in
the
Notes and this Mortgage and all other sums due pursuant to the Notes, the
Guaranty and this Mortgage and secured by this Mortgage; and “Collateral
Agent”
shall
mean the initial Collateral Agent and any subsequent person appointed by the
Collateral Agent to act as Collateral Agent, provided such subsequent person
accepts such appointment and the Mortgagor is notified of such appointment.
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.
36. Waiver
of Notice.
The
Mortgagor shall not be entitled to any notices of any nature whatsoever from
the
Mortgagee or Collateral Agent except with respect to matters for which this
Mortgage specifically and expressly provides for the giving of notice by the
Mortgagee or Collateral Agent to the Mortgagor, and the Mortgagor hereby
expressly waives the right to receive any notice from the Mortgagee or
Collateral Agent with respect to any matter for which this Mortgage does not
specifically and expressly provide for the giving of notice by the Mortgagee
or
Collateral Agent to the Mortgagor, except as is otherwise required by applicable
law.
37. No
Verbal Change.
This
Mortgage may only be modified, amended or changed by an agreement in writing
signed by the Mortgagor and the Collateral Agent on behalf of the Mortgagee,
and
may only be released, discharged or satisfied of record by an agreement in
writing signed by the Mortgagee or the Collateral Agent on behalf of the
Mortgagee. No waiver of any term, covenant or provision of this Mortgage shall
be effective unless given in writing by the Mortgagee or the Collateral Agent
on
behalf of the Mortgagee and if so given by the Mortgagee shall only be effective
in the specific instance in which given. The Mortgagor acknowledges that the
Notes, this Mortgage, and the other documents and instruments executed and
delivered in connection therewith or otherwise in connection with the loan
secured hereby set forth the entire agreement and understanding of the Mortgagor
and the Mortgagee with respect to the loan secured hereby and that no oral
or
other agreements, understanding, representation or warranties exist with respect
to the loan secured hereby other than those set forth in the Notes, this
Mortgage and such other executed and delivered documents and instruments. In
order for the Collateral Agent to act on behalf of the Mortgagee under this
Section, it must obtain the prior consent of each person constituting
Mortgagee.
-23-
38. Absolute
and Unconditional Obligation.
The
Mortgagor acknowledges that the Mortgagor's and Parent’s obligation to pay the
Debt in accordance with the provisions of the Notes, the Guaranty and this
Mortgage is and shall at all times continue to be absolute and unconditional
in
all respects, and shall at all times be valid and enforceable irrespective
of
any other agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to the Notes, the Guaranty or this Mortgage
or
the obligation of the Mortgagor thereunder to pay the Debt or the obligations
of
any other person relating to the Notes, the Guaranty or this Mortgage or the
obligations of the Mortgagor under the Notes, the Guaranty or this Mortgage
or
otherwise with respect to the loan secured hereby, and the Mortgagor absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
offset, setoff, counterclaim (except mandatory counterclaims which must be
asserted to avoid being deemed to have been waived in any separate action)
or
crossclaim of any nature whatsoever with respect to the obligation of the
Mortgagor to pay the Debt in accordance with the provisions of the Notes, the
Guaranty and this Mortgage or the obligations of any other person relating
to
the Notes, the Guaranty or this Mortgage or obligations of the Mortgagor under
the Notes, the Guaranty or this Mortgage or otherwise with respect to the loan
secured hereby in any action or proceeding brought by the Mortgagee to collect
the Debt, or any portion thereof, or to enforce, foreclose and realize upon
the
lien and security interest created by this Mortgage or any other document or
instrument securing repayment of the Debt, in whole or in part, and the
Mortgagor agrees that it shall not interpose or assert any such defense, offset,
setoff, counterclaim (except such mandatory counterclaims as described above)
or
crossclaim in any action or proceeding.
39. Release.
At such
time as the amounts outstanding under the Notes and the Debt are zero and no
further amounts are due the Mortgagee hereunder (x) any additional proceeds
received by the Mortgagor on account of the sale of the Mortgaged Property
shall
be retained by the Mortgagor and (y) the Mortgaged Property shall be released
from the lien created under this Mortgage and the Mortgagee shall deliver to
the
Mortgagor, upon reasonable request therefor, and, at the Mortgagor’s expense,
releases and satisfactions (to be prepared by the Mortgagor) of all financing
statements related to such Mortgaged Property, and this Mortgage shall
terminate.
40. Disposition
of Proceeds.
The
proceeds of any sale or disposition of all or any part of the Mortgaged Property
shall be applied by the Mortgagee in the following order: (i) to the payment
in
full of the costs and expenses of such sale or sales, collections, and the
protection, declaration and enforcement of the mortgage granted hereunder,
and
to the payment in full of all other expenses, liabilities and advances made
or
incurred by the Mortgagee in connection therewith, all amounts for which the
Mortgagee is entitled to indemnification hereunder, and all advances made by
the
Mortgagee hereunder for the account of the Mortgagor, including the reasonable
compensation of or reimbursement of the Mortgagee’s agents and attorneys,
including without limitation the Collateral Agent; (ii) to the payment of the
Debt for the benefit of the holder thereof; and (iii) to the payment to the
Mortgagor of any surplus then remaining from such proceeds, subject to the
rights of any permitted holder of a lien on the Mortgaged Property of which
the
Mortgagee has received actual written notice. In the event that the proceeds
of
any sale or other disposition of the Mortgaged Property are insufficient to
cover the principal of, and premium, if any, and interest on, and expenses
and
fees with respect to, the Debt secured thereby, plus costs and expenses of
the
sale or other disposition, the Mortgagor shall remain liable for any
deficiency.
-24-
41. Expenses.
The
Mortgagor agrees that it shall pay all costs and expenses hereafter incurred
in
amending, implementing, perfecting, collecting, defending, declaring and
enforcing and otherwise relating to the Mortgagee’s rights and security
interests in the Mortgaged Property hereunder or under the Notes or any other
instrument or agreement delivered in connection herewith or therewith,
including, but not limited to, searches and filings after the date hereof,
and
the Mortgagee’s reasonable attorneys’ fees (regardless of whether any litigation
is commenced, whether default is declared hereunder, and regardless of tribunal
or jurisdiction); provided, however, that the Mortgagor shall not be responsible
for any costs and expenses (including attorneys fees) incurred by the Mortgagee
in connection with negotiating, execution and delivery of this Mortgage or
any
other Loan Document, except as may be provided elsewhere herein or therein.
Further, the Mortgagor shall pay the costs of all title, UCC, judgment, lien
and
similar searches in connection with this Mortgage and the other Loan Documents,
and shall pay all title insurance premiums on the Mortgaged Property in
connection with Mortgagee’s title insurance policy. The Mortgagor shall obtain
and deliver to the Collateral Agent an updated title survey of the Premises
within 30 days following the date hereof.
42. Waiver
of Statutory Rights.
The
Mortgagor shall not and will not apply for or avail itself of any appraisement,
valuation, stay, extension or exemption laws, or any so-called “Moratorium
Laws,” now existing or hereafter enacted, in order to prevent or hinder the
enforcement or foreclosure of this Mortgage, but hereby waives the benefit
of
such laws to the full extent that the Mortgagor may do so under applicable
law.
The Mortgagor for itself and all who may claim through or under it waives any
and all right to have the property and estates comprising the Mortgaged Property
marshaled upon any foreclosure of the lien of this Mortgage and agrees that
any
court having jurisdiction to foreclose such lien may order the Mortgaged
Property sold as an entirety. The Mortgagor hereby waives for itself and all
who
may claim through or under it, and to the full extent the Mortgagor may do
so
under applicable law, any and all rights of redemption from sale under any
order
of decree of foreclosure of this Mortgage or granted under any statute now
existing or hereafter enacted.
43. Indemnity.
Anything in this Mortgage or the other Loan Documents (as defined below) to
the
contrary notwithstanding, the Mortgagor shall indemnify and hold the Mortgagee
and the Collateral Agent harmless and defend the Mortgagee and the Collateral
Agent at the Mortgagor's sole cost and expense against any loss or liability,
cost or expense (including, without limitation, reasonable attorneys' fees
and
disbursements of the Mortgagee’s and the Collateral Agent’s counsel), and all
claims, actions, procedures and suits arising out of or in connection with
(i)
any default by the Mortgagor or the Parent in connection with the transaction
contemplated hereby, the Debt, this Mortgage, the Guaranty, the Purchase
Agreement, the Registration Rights Agreement, any of the other document or
instrument now or hereafter executed and/or delivered in connection with the
Debt or the Purchase Agreement (the “Loan
Documents”)
and/or
the Mortgaged Property, including, but not limited to, all costs of reappraisal
of the Mortgaged Property or any part thereof after the date hereof, whether
required by law, regulation, the Mortgagee the Collateral Agent, or any
governmental or quasi-governmental authority, (ii) any amendment to, or
restructuring of, the Debt and this Mortgage, the Notes or any of the other
Loan
Documents, (iii) any and all lawful action that may be taken by the Mortgagee
or
the Collateral Agent in connection with the enforcement of the provisions of
this Mortgage or the Notes or any of the other Loan Documents, whether or not
suit is filed in connection with the same, or in connection with the Mortgagor
or the Parent becoming a party to a voluntary or involuntary federal or state
bankruptcy, insolvency or similar proceeding, (iv) any violation of any
Environmental Requirements, any investigation or study with respect to Hazardous
Materials or Environmental Requirements, and any costs, fees or expenses related
to any of the foregoing, (v) any accident, injury to or death of persons or
loss
of or damage to property occurring in, on or about the Mortgaged Property,
and
(vi) any enforcement of this indemnification. All sums so expended by the
Mortgagee or Collateral Agent shall be payable on demand and, until reimbursed
by the Mortgagor pursuant hereto, shall be deemed additional principal of the
Debt and secured hereby and shall bear interest at the Default Rate. The
obligations of the Mortgagor under this paragraph shall, notwithstanding any
exculpatory or other provisions of any nature whatsoever set forth in the Loan
Documents, constitute the personal recourse undertakings, obligations and
liabilities of the Mortgagor.
-25-
44. Enforceability.
Matters
of construction, validity and performance, this Mortgage and the obligations
arising hereunder shall be governed by, and construed in accordance with, the
laws of the State of New Jersey applicable to contracts made and performed
in
such State and any applicable laws of the United State of America. Whenever
possible, each provision of this Mortgage shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Mortgage shall be unenforceable or prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such unenforceability,
prohibition or invalidity, without invalidating the remaining provisions of
this
Mortgage.
45. Marshalling
and Other Matters.
Mortgagor hereby waives, to the extent permitted by law, the benefit of all
appraise-ment, 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 redemp-tion
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.
46. Waiver
of Jury Trial.
Mortgagor hereby waives any right to trial by jury in connection with any and
all litigation involving the subject matter of this Mortgage.
47. Receipt
of Mortgage.
Mortgagor hereby acknowledges receipt of a true copy of this Mortgage without
charge.
48. New
Jersey Provisions.
This
Mortgage is subject to modification as provided in N.J.S.A 46:9-8.1, and with
respect to any such modification, the priority of this Mortgage shall relate
back to and remain as it was at the time of recording of this Mortgage as if
the
modification was included herein or as if the modification occurred at the
time
of the recording of this Mortgage.”
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-26-
IN
WITNESS WHEREOF,
the
Mortgagor has duly executed this Mortgage the day and year first above
written.
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NEXMED
(U.S.A.), INC.
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||
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By:
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/s/
Xxxxxx Xxx
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|
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Name:
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Xxxxxx
Xxx
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|
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Title:
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President
and CEO
|
|
ACKNOWLEDGMENT
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STATE
OF New Jersey
|
)
|
|
)
ss.:
|
|
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COUNTY
OF Xxxxxx
|
)
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On
this
30th day of June, 2008, before me, the undersigned, personally appeared Xxxxxx
Xxx, the President and CEO of NEXMED (U.S.A.), INC., a Nevada corporation,
who,
I am satisfied, is the person who signed the foregoing instrument, and he did
acknowledge under oath that he signed, sealed with the corporate seal, and
delivered the same in his capacity as such officer and that the foregoing
instrument is the voluntary act and deed of such corporation, made by virtue
of
the authority of its board of directors.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal.
|
/s/
Xxxxxx X. Xxxxxxx
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|
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Notary
Public
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|
| (Notarial Seal) |
-27-
EXHIBIT
A
All
the
real property located in the Township of East Windsor, County of Xxxxxx, State
of New Jersey and more particularly described as follows:
BEGINNING
at a point situated along the southerly right of way line of Twin Rivers Drive
(66 feet wide), said point being located 25.00 feet from the intersection of
the
westerly prolongation of the same and the northerly prolongation of the easterly
right of way line of Milford Road (66 feet wide); thence running
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1.
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South
85° 22' 26" East along the southerly right of way line of Twin Rivers
Drive, 208.27 feet to a point;
thence
|
|
2.
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Easterly
along the same, along a curve to the right having a radius of 967.00
feet
and an arc length of 242.60 feet to a point;
thence
|
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3.
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South
06° 55' 34" West along the common line of Lots 6 and 190 Block 20.06,
371.02 feet to a point; thence
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4.
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North
80° 46' 41" West along the common line of Lots 4 and 6 Block 20.06, 293.02
feet to a point; thence
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5.
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North
04° 37' 34" East along the common line of Lots 5 and 6 Block 20.06, 150.00
feet to a point; thence
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6.
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North
80° 46' 41" West along the same, 166.90 feet to a point;
thence
|
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7.
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North
04° 37' 34" East along the easterly line of Milford Road, 189.14 feet
to a
point; thence
|
|
8.
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Easterly
along the same, along a curve to the right having a radius of 25.00
feet
and an arc length of 39.27 feet to the point and place of
beginning.
|
| NOTE: |
BEING
Xxx 0, Xxxxx 20.06, Tax Map of the Township of East Windsor, Xxxxxx
County, New Jersey,
|
BEING
commonly known as 00 Xxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx
00000,
BEING
the
same premises conveyed to the Mortgagor herein by deed dated October 17, 2000
and recorded on November 1, 2000 in the Xxxxxx County Register’s Office in Deed
Book 3937, page 254.
-28-
EXHIBIT
B
All
the
real property located in the Township of East Windsor, County of Xxxxxx, State
of New Jersey and more particularly described as follows:
BEGINNING
at a point in the centerline of Milford Road, said point being distant 246.20
feet southwestwardly from the intersection of the said centerline of Milford
Road with the centerline of Twin Rivers Drive; thence running
| 1. |
Along
Xxx 0, Xxxxx 00 xxxxxxx 00 xxxxxxx Xxxx, a distance of 200.00 feet
to a
point; thence
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| 2. |
Along
same, South 12 degrees 00 minutes West, a distance of 150.00 feet
to a
point in line with Lot 4; thence
|
| 3. |
Along
the northeasterly line of a portion of Xxx 0, Xxxxx 00 xxxxxxx 00
xxxxxxx
Xxxx, a distance of 200.00 feet to the point in the centerline of
Milford
Road; thence
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| 4. |
Along
the centerline of Milford Road, North 12 degrees 00 minutes East,
a
distance of 150.00 feet to the point and place of Beginning.
|
The
above
description was drawn in accordance with a survey prepared by Crest Engineering
Associates, Inc., Xxxxxx X. Xxxxxxx, P.L.S., dated February 8,
2002.
FOR
INFORMATIONAL PURPOSES ONLY:
BEING
ALSO KNOWN as Lot 5 in Block 20.06 on the Official Tax Map of the Township
of
East Windsor, Xxxxxx County, NJ,
BEING
commonly known as 000 Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000.
-29-
