Exhibit 4.90
MECHANICAL TECHNOLOGY INCORPORATED
to
THE CHASE MANHATTAN BANK, N.A.
---------------------------------------------
MORTGAGE AND SECURITY AGREEMENT
---------------------------------------------
$340,000
Dated as of October 06, 1995
---------------------------------------------
Street Address: 000 Xxxxxx-Xxxxxx Xxxx
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx
Tax Account Number: 18-1-24
18-1-25
---------------------------------------------
After Recording Please Return to:
---------------------------------
Nixon, Hargrave, Devans & Xxxxx LLP
Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Real Estate Department
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE, dated as of October 06, 1995, is given
by MECHANICAL TECHNOLOGY INCORPORATED, a New York corporation
having a principal place of business at 000 Xxxxxx-Xxxxxx Xxxx,
Xxxxxx, Xxx Xxxx ("Mortgagor"), to THE CHASE MANHATTAN BANK,
N.A., a national banking association having its principal office
at One Chase Square, Rochester, New York ("Mortgagee").
RECITALS
--------
WHEREAS, Mortgagor is the owner of certain real
property located at 000 Xxxxxx-Xxxxxx Xxxx and, 000 Xxxxxx-Xxxxxx
Xxxx in the Town of Colonie, Albany County, New York, which is
more particularly bounded and described in SCHEDULE "A" attached
hereto (the "Premises"); and
WHEREAS, Mortgagee has agreed to make a loan to the
Mortgagor in the principal amount of $340,000 (the "Loan"); and
WHEREAS, The Loan will be evidenced by certain Mortgage
Note of the Mortgagor to the Mortgagee in the principal amount of
$340,000, dated October 06, 1995 (the "Note"), and will be
secured by this Mortgage which is intended to be recorded in the
Albany County Clerk's Office;
NOW, THEREFORE, in consideration of the respective
representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
GRANTING CLAUSE
---------------
To secure the payment of the principal sum of $340,000,
lawful money of the United States of America, the maximum amount
of principal indebtedness which is or under any contingency may
be secured by this Mortgage, to be paid according to the terms of
the Note with interest thereon at the per annum rate specified
therein, together with all other sums which may from time to time
become due and payable to Mortgagee by reason of the exercise of
its rights and remedies under the terms of the Note or this
Mortgage, Mortgagor hereby mortgages to Mortgagee all of the
following:
A. The Premises;
B. All of the buildings, structures and other
improvements now or hereafter erected on the Premises
(collectively, the "Improvements");
C. All of the right, title and interest of
Mortgagor in and to all streets, roads, vaults and
public places, opened or proposed, in front of,
adjacent to or adjoining the Premises, the Improvements
or any part thereof and all air rights, parking areas,
easements and rights of way, public or private, now or
hereafter used in connection therewith (collectively,
the "Appurtenances");
D. All of the right, title and interest of
Mortgagor in and to all machinery, apparatus,
equipment, fittings, fixtures and articles of personal
property installed in, attached to or used or useable
in connection with the present or future use of the
Premises or the present or future operation or
maintenance of the Improvements, whether now owned or
hereafter acquired by Mortgagor, including, but not
limited to, all heating, lighting, laundry,
incinerating and power equipment, engines, pipes,
pumps, tanks, motors, conduits, switchboards, plumbing,
lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating and communications
apparatus, exhaust and heater fans, air-cooling and
air-conditioning apparatus, elevators, escalators,
shades, awnings, screens, storm doors and windows,
stoves, refrigerators, attached cabinets, partitions,
ducts and compressors (which machinery, apparatus,
equipment, fittings, fixtures and articles of personal
property, all replacements thereof, substitutions
therefor and additions thereto, together with the
proceeds thereof, are hereafter collectively referred
to as the "Equipment");
E. All awards heretofore made and hereafter to
be made by reason of a taking or condemnation affecting
the Premises, the Improvements, the Appurtenances, the
Equipment or any part thereof by competent authority as
a result of the exercise of the power of eminent
domain, including, but not limited to, any awards or
payments for use and occupation or for change of grade
of streets (collectively, "Condemnation Awards"), which
awards, together with any and all claims of Mortgagor
with respect thereto, are hereby assigned to and
pledged with Mortgagee;
F. All insurance proceeds heretofore paid and
hereafter to be paid by reason of any loss or damage to
the Improvements, the Equipment or any part thereof by
fire, flood or other casualty (collectively, "Casualty
Insurance Proceeds"), which proceeds, together with any
and all claims of Mortgagor with respect thereto, are
hereby assigned to and pledged with Mortgagee; and
G. All of the right, title and interest of
Mortgagor in and to all leases, subleases, tenancies,
subtenancies and occupancies now or hereafter affecting
the Premises, the Improvements or any part thereof and
all amendments, modifications, extensions and renewals
thereof (collectively, the "Assigned Leases"), together
with (1) all of the rents, issues and profits which may
be or become due, or to which Mortgagor may now or
hereafter become entitled, arising or issuing out of
the Assigned Leases or from or out of the Premises, the
Improvements or any part thereof (collectively,
"Rents") and (2) all insurance proceeds heretofore paid
and hereafter to be paid by reason of any loss of
income from the Premises, the Improvements or any part
thereof, including, but not limited to, any use or
occupancy loss, business interruption or interruption
of rental payments under the Assigned Leases or any
part thereof (collectively, "Business Interruption
Insurance Proceeds"), which rents, issues, profits and
insurance proceeds, together with any and all claims of
Mortgagor with respect thereto, are hereby assigned to
and pledged with Mortgagee;
all of which rights, titles, interests and estates, together with
the appurtenances thereto, all other incidents of ownership
therein and all further and additional rights, titles, interests
and estates which Mortgagor may hereafter acquire therein, are
intended to be covered by the lien of the Mortgage.
SECURITY AGREEMENT
------------------
To further secure the payment of the Loan, Mortgagor
hereby grants to Mortgagee a security interest in all of the
Equipment, Condemnation Awards, Casualty Insurance Proceeds,
Rents, Business Interruption Insurance Proceeds, general
intangibles and other contract rights described in the spreader
provision of this Agreement (collectively, the "Collateral") to
the full extent of its interest therein, and this Agreement shall
constitute a security agreement under Article 9 of the Uniform
Commercial Code with respect to all of the Collateral. Mortgagor
shall execute and deliver to Mortgagee, upon request, such UCC-1
financing statements, UCC-3 amendments, UCC-3 continuation
statements and other instruments as Mortgagee may require in
order to impose, confirm, renew or perfect the security interest
created by this Agreement upon any of the Collateral. Mortgagor
hereby appoints Mortgagee its agent and attorney-in-fact (which
appointment shall be deemed to be an agency coupled with an
interest), with full power of substitution, to execute, deliver
and file on its behalf any UCC-1 financing statements, UCC-3
amendments, UCC-3 continuation statements and other instruments
which Mortgagor has failed or refused to execute and deliver to
Mortgagee within 10 days after notice and request therefor by
Mortgagee.
Mortgagor does hereby covenant and agree with Mortgagee
as follows:
Part 1. Warranties.
------ ----------
Mortgagor WARRANTS title to the Premises and the
Collateral (collectively, the "Mortgaged Property") and further
represents and warrants to Mortgagee:
1. That the grant of this Mortgage does not conflict
with any charter, by-laws, indenture, contract or agreement to
which Mortgagor is a party or by which it is bound, or with any
statute, rule, regulation, decree or judgment binding upon it;
and
2. Mortgagor is duly organized and existing under the
jurisdiction of its incorporation, and that the execution,
delivery and performance hereof and of every term, covenant or
condition herein provided are within its corporate powers, and
has been duly authorized by all necessary stockholder and
corporate action.
Part 2. General Covenants.
------ -----------------
Mortgagor COVENANTS and agrees with Mortgagee as
follows.
1. This Mortgage shall be a continuing security for
the payment of the Loan until Mortgagor shall demand in writing
after and at a time when the Loan shall be fully paid that
Mortgagee execute and deliver to Mortgagor a discharge hereof in
form suitable for recording.
2. The Mortgagor hereby waives presentment, demand of
payment, protest, notice of acceptance, and notice of non-payment
of any instrument on which Mortgagor is or may become liable, or
notice of any other factor which might increase Mortgagor's risk,
and any other action or condition prior to Mortgagee's reliance
hereon.
This Mortgage shall be enforceable as to all or any part of the
Loan despite Mortgagor's discharge in bankruptcy (except as may
be otherwise ordered in a bankruptcy proceeding) or adjustment of
all or any of the Loan in insolvency proceedings or pursuant to
some other compromise with creditors.
3. Mortgagor will, during the time until the Loan
shall be fully paid and satisfied, keep the Improvements and
Equipment insured against loss or damage by fire and by such
other hazards as Mortgagee may reasonably require, to an amount
to be approved by Mortgagee not exceeding in the aggregate one
hundred per cent of their full insurable value and in a company
or companies to be approved by Mortgagee, and will assign and
deliver, upon request, the policy or policies of such insurance
to Mortgagee, which policy or policies shall have endorsed
thereon the standard New York Mortgagee clause in the name of
Mortgagee, so and in such manner and form that it shall at all
time and times, upon such request, until the full payment of the
Loan, have and hold the said policy or policies as a collateral
and further security for the payment of the Loan, and if
Mortgagor fails to perform or comply with any of the foregoing,
Mortgagee may procure such insurance from year to year, in an
amount in the aggregate not exceeding one hundred per cent of the
full insurable value of the Improvements and Equipment for the
purposes aforesaid, and pay the premium or premiums therefor, and
that Mortgagor will pay to Mortgagee, such premium or premiums so
paid, with interest from the time of payment, on demand, and that
the same shall be deemed to be secured by the Mortgage, and shall
be collectible thereupon and thereby in like manner as the
principal moneys, and that should Mortgagee by reason of such
insurance against loss by fire or other insured casualty receive
any sum or sums of money for damage by fire or other insured
casualty, such amount may be retained and applied by Mortgagee
toward payment of the Loan, or the same may be paid over either
wholly or in part to Mortgagor for the repair of the Improvements
and Equipment or for the erection of new Improvements and
Equipment in their place or for such other purpose or object and
upon such conditions as shall be satisfactory to Mortgagee, any
such alternative, however, to be solely within the discretion of
Mortgagee, and if Mortgagee receives and retains insurance money
for damage by fire or other insured casualty to the Mortgaged
Property, the lien of the Mortgage shall be affected only by a
reduction of the amount of said lien by the amount of such
insurance money received and retained by Mortgagee.
4. None of the Improvements or Equipment shall be
removed (except to the extent replaced by Improvements or
Equipment of comparable value), demolished or substantially
altered without the prior written consent of Mortgagee; provided,
however that Mortgagor shall have the right, to remove, from time
to time, any Equipment which has become worn out or obsolete or
is defective or was improperly installed if, prior to or
simultaneously with such removal, such Equipment is replaced with
other Equipment of like kind and equivalent value which is free
and clear of all liens, security interests, encumbrances,
conditional sales contracts, installment contracts or other
financing devices. Such replacement Equipment shall immediately
become subject to the lien of and security interest created by
this mortgage without any further action on the part of
Mortgagor.
5. Mortgagor will not abandon the Mortgaged Property
or cause or permit any waste to the Mortgaged Property and will
at all times maintain the Mortgaged Property in a reasonably good
condition, and will comply and cause all occupants of the
Mortgaged Property to comply, with all laws and ordinances
relating to the maintenance or use of the Mortgaged Property and
with all requirements, orders and notices of violation thereof
issued by any governmental department. Mortgagor will pay all
license fees and similar municipal charges for the use of vaults
or other areas now or hereafter used in connection with the
Mortgaged Property and will not, unless so required by any
governmental agency having jurisdiction, discontinue such use
without the prior written consent of Mortgagee. Within 60 days
after notice and demand by Mortgagee, Mortgagor will restore or
repair the Mortgaged Property as specified in such notice and
demand. Mortgagor will permit Mortgagee and its representatives
to enter the Mortgaged Property at reasonable times to inspect
the same, and in case of any default under this paragraph, to
enter the Mortgaged Property to protect, restore or repair any
part thereof.
6. Mortgagor will pay within 30 days from the date
the same become due and payable all taxes, assessments, or water
rates and any and all charges necessary to be paid to preserve
this Mortgage lien, and Mortgagor will pay immediately upon
demand any additional Mortgage tax which may become due and
payable as a condition to foreclosure hereof or which Mortgagee
may reasonably believe to be due and payable at any time.
7. Mortgagor will not hereafter, without the prior
written consent of Mortgagee, grant or permit any other Mortgage,
security interest, lien, pledge or charge of any kind upon the
Mortgaged Property, except: (i) as may be granted to Mortgagee,
or (ii) contractors', subcontractors', materialmen's, mechanics',
carriers', workmen's or other like liens arising in the ordinary
course of business which are discharged of record or bonded
within 30 days after the filing or recording thereof. If
notwithstanding the foregoing sentence and without Mortgagee's
said consent Mortgagor grants or permits any such mortgage or
security interest on or after the date hereof, such mortgage or
security interest shall be junior and subordinate to the lien of
this Mortgage.
8. Mortgagor will not, without the prior written
consent of Mortgagee, assign the rents or any part thereof, from
the Mortgaged Property; nor consent to the cancellation or
surrender of, or accept prepayment of rents under any lease now
or hereafter covering the Mortgaged Property or any part thereof
having an unexpired term of more than 1 year; nor modify any such
lease so as to shorten the term, decrease the rent, accelerate
the payment of rent or change the terms of any renewal option,
and any such purported assignment, cancellation, surrender,
prepayment or modification made without the written consent of
Mortgagee shall be void as against Mortgagee. The provisions of
the preceding sentence shall be enforceable as provided in
Section 291-f of the Real Property Law of the State of New York
with respect to leases in existence at the time of execution and
delivery hereof and covered by said section. Mortgagor will upon
demand of Mortgagee enter into an agreement with Mortgagee
pursuant to said Section 291-f with respect to any lease
hereafter executed covering the Mortgaged Property or any part
thereof, and Mortgagor hereby appoints Mortgagee attorney-in-fact
of Mortgagor to execute and deliver any such agreement on behalf
of Mortgagor and to deliver to the tenant to whose lease such
agreement relates the written notice referred to in said
Section 291-f. Mortgagor will perform and comply with the terms
of all leases covering the Mortgaged Property or any part thereof
on its part to be performed or complied with.
9. Mortgagor will, within five days upon request in
person or within ten days upon request by mail, furnish a
written, duly acknowledged statement of the amount of the Loan.
10. Mortgagor will maintain full and correct books and
records showing in detail the earnings and expenses of the
Mortgaged Property; will permit Mortgagee and its representatives
to examine said books and records and all supporting vouchers and
data at any time and from time to time upon request by Mortgagee
at the Mortgaged Property or at such other place in the town and
county in which the Mortgaged Property is located as such books
and records are customarily kept; and at any time and from time
to time will furnish to Mortgagee at its request a statement
showing in detail all such earnings and expenses since the last
such statement verified by the affidavit of Mortgagor's principal
executive officer.
11. This Mortgage constitutes a security agreement
under the New York Uniform Commercial Code and creates a security
interest in all Mortgaged Property (and the proceeds thereof)
which might otherwise be deemed "personal property." Mortgagor
shall execute, deliver, file and refile any financing statement,
continuation statements, or other security agreements Mortgagee
may require from time to time, to confirm the lien of this
Mortgage with respect to such property. Without limiting the
foregoing, Mortgagor hereby irrevocably appoints Mortgagee and
its successors in interest as attorney-in-fact of Mortgagor to
execute, deliver and file such instruments for and on behalf of
the Mortgagor.
12. Mortgagor shall execute and deliver, upon demand,
any further assurance of title and other further instrument or
instruments, including, but not limited to, Mortgages or
corrections or amendments thereto, security agreements, financing
statements, and assignments so as to reaffirm, to correct or to
perfect the evidence of the lien of the Mortgagee to all or any
part of the Mortgaged Property intended to be Mortgaged, whether
now so Mortgaged, later substituted for Mortgaged Property, or
acquired subsequent to the date hereof.
13. In the event of any default hereunder, following
any notice and opportunity to cure provided herein, Mortgagee may
cause title to the Mortgaged Property to be examined or updated
by any reputable title insurance or abstract company licensed to
do business in the State of New York and a survey of the
Mortgaged Property to be prepared or redated by any reputable
surveyor licensed to do business in the State of New York and the
cost thereof shall be paid by Mortgagor upon demand.
14. If any action or proceeding is commenced (except
an action to foreclose this Mortgage or to collect the Loan) to
which action or proceeding Mortgagee is made a party, or in which
it becomes necessary to defend or uphold the lien of this
Mortgage, all sums paid by Mortgagee for the expense of any
litigation to prosecute or defend the rights and lien created by
this Mortgage (including reasonable counsel fees), shall be paid
by Mortgagor to Mortgagee immediately upon demand.
15. The following sums, together with interest thereon
from the dates of payment thereof by Mortgagee at a rate of 15%
per annum or, if less, at the maximum rate permitted by law,
shall be added to the Loan and shall be a lien on the Mortgaged
property and shall be deemed to be secured by this Mortgage prior
to any right, title to, interest in, or claim upon the Mortgaged
property attaching or accruing subsequent to the lien of this
Mortgage, without regard to whether or not the Loan shall be or
shall be declared to be due and payable by acceleration or
otherwise: (i) all amounts for which Mortgagee shall demand
payment from Mortgagor pursuant to and under any provision in
this Mortgage; and (ii) if Mortgagor fails to comply with or
perform any covenant or agreement herein (other than those in
Part 3 hereof), all costs of compliance or performance by
Mortgagee, which Mortgagee, at its sole option, may undertake in
whole or in part and in such manner as Mortgagee in its sole
discretion may elect without any notice or demand of any kind to
Mortgagor except and only to the extent hereinbefore expressly
provided.
Part 3. Environmental Covenants.
------ -----------------------
1. As used in this Mortgage, the following
capitalized terms shall have the meanings set forth below:
(a) "Environmental Agreement" means that certain
Environmental Compliance and Indemnification Agreement given by
Mortgagor to Mortgagee, dated as of July 22, 1992.
(b) "Environmental Laws" mean all federal, state
and local environmental, land use, zoning, health, chemical use,
safety and sanitation laws, statutes, ordinances and codes
relating to the protection of the environment and/or governing
the use, storage, treatment, generation, transportation,
processing, handling, production or disposal of Hazardous
Substances and the decisions, orders, directives, rules,
regulations, standards, criteria and guidance documents that are
generally applicable and consistently applied, published in
writing and available from the appropriate federal, state and
local governmental agencies and authorities with respect thereto.
(c) "Environmental Permits" mean all permits,
licenses, approvals, authorizations, consents or registrations
required by any applicable Environmental Law in connection with
the ownership, use and/or operation of the Premises for the
storage, treatment, generation, transportation, processing,
handling, production or disposal of Hazardous Substances or the
sale, transfer or conveyance of the Premises.
(d) "Hazardous Substance" means (i) any
radioactive materials, asbestos, polychlorinated biphenyls,
petroleum and petroleum products and methane, and (ii) any
hazardous materials, hazardous wastes, and hazardous or toxic
substances as such terms are defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C.
Sections 1801, et seq.), the Resource Conservation and Recovery
Act as amended (42 U.S.C. Sections 6901, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Sections 2601, et
seq.), Articles 15 and 27 of the New York State Environmental
Conservation Law or any other applicable Environmental Law and
the regulations promulgated thereunder.
(e) "Release" has the same meaning as given to
that term in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et seq.), and the regulations promulgated
thereunder.
2. ENVIRONMENTAL INSPECTION AND CLEAN UP PRIOR TO
FORECLOSURE. If Mortgagee elects to foreclose this Mortgage or
to take a deed in lieu of foreclosure, Mortgagor shall deliver
the Mortgaged Property to Mortgagee free of any Hazardous
Substances, except any Hazardous Substances existing in such a
manner as would not constitute a violation of any applicable
Environmental Law, so that the condition of the Mortgaged
Property shall conform with all Environmental Laws then
applicable to the Mortgaged Property and comply with the terms
and conditions of all Environmental Permits then required in
connection with the ownership, use, operation, sale transfer or
conveyance of the Mortgaged Property. Mortgagee may require that
a full or supplemental environmental inspection and audit report
with respect to the Mortgaged Property of a scope and level of
detail satisfactory to Mortgagee be prepared by an environmental
engineer or other qualified person acceptable to Mortgagee. If,
at the time Mortgagee requires such an environmental audit
report, Mortgagor is in default of this Mortgage, and provided
the time period for any notice and opportunity to cure provided
herein has expired, the environmental report shall be prepared at
Mortgagor's sole cost and expense. If Mortgagor is not in
default at such time, then such environmental report shall be
prepared at Mortgagee's sole expense. Said audit may include
physical inspection of the Mortgaged Property, a visual
inspection of any property adjacent to or within the immediate
vicinity of the Mortgaged Property, personnel interviews and a
review of all Environmental Permits. If Mortgagee requires, such
inspection shall also include a records search and/or subsurface
testing for the presence of Hazardous Substances in the soil,
subsoil, bedrock, surface water and/or groundwater. If said
audit report indicates the presence of any Hazardous Substance
existing in such a manner as would constitute a violation of any
applicable Environmental Law, or a Release or the substantial
threat of a Release of any Hazardous Substance which would cause
a violation of any applicable Environmental Law on, at or from
the Mortgaged Property, Mortgagor shall promptly undertake and
diligently pursue to completion all investigative, containment,
removal, clean up and other remedial actions necessary to comply
with all Environmental Laws, using methods acceptable to the
appropriate federal, state and local regulatory authorities. If
Mortgagor shall fail to promptly undertake or diligently pursue
to completion all such actions, Mortgagee shall have the right,
but not the obligation, upon ten days written notice to Mortgagor
(or without notice in the case of emergency), to take or complete
such actions on behalf of Mortgagor. The contractors and/or
subcontractors selected by Mortgagee for this purpose shall have
the right to enter the Mortgaged Property with such persons,
machinery and equipment and to undertake such investigative,
containment, removal, clean up and other remedial actions as they
shall deem necessary and appropriate without thereby incurring
any liability to Mortgagor on account thereof. Mortgagor agrees
to cooperate with all contractors and/or subcontractors engaged
in such actions. Mortgagor shall be liable to Mortgagee for all
costs and expenses, including, without limitation, attorneys' and
experts' fees, expenses and disbursements, paid or incurred on
account of such actions and shall promptly reimburse Mortgagee
therefor on demand. Until paid by Mortgagor, all such costs and
expenses and the cost of the environmental inspection and audit
report, together with interest thereon at the maximum interest
rate permitted by law, shall be secured by this Mortgage and may
be added to the judgment in any foreclosure action.
Part 4. Default Provisions.
------ ------------------
1. Without limitation of and in addition to any
rights of Mortgagee under the Note, the whole of the Loan shall
become due and immediately payable at the option of Mortgagee,
without notice, presentation or demand of any kind except as
hereinafter expressly provided, all others being hereby waived,
and thereupon Mortgagee shall have the right, among others, to
foreclose this Mortgage, upon any of the following events of
default:
(a) Mortgagor shall fail to pay when due, whether
by acceleration or otherwise, any of the principal of or interest
on the Loan, and such failure shall have continued for a period
of ten (10) days after notice.
(b) Mortgagor shall fail, in any material
respect, to pay, perform or comply with any of the provisions,
covenants or agreements herein, or in the Environmental
Agreement, within 10 days after written notice and demand from
Mortgagee to Mortgagor.
(c) Any material warranty of Mortgagor herein
contained or in the Environmental Agreement shall be untrue or
misleading in any material respect on the date when made.
(d) A conveyance of the Mortgaged Property or any
part thereof to any person.
(e) Mortgagor shall fail to pay any contractors',
subcontractors', suppliers', mechanics' or laborers' liens of any
and all types and descriptions as are now filed or recorded or
hereafter become filed or recorded against the Mortgaged
property, and the same shall not be discharged of record or fully
bonded within 60 days after the filing or recording thereof; and
in such event, the Mortgagee may pay such principal, interest,
lien amount, or part thereof, and the amount so paid, with
interest thereon from time of such payment, may be added to the
Loan and shall be a lien on the Mortgaged property prior to any
right, or title to, interest in or claim upon the Mortgaged
property attaching or accruing subsequent to the lien of this
Mortgage, and shall be deemed to be secured by this Mortgage.
(f) Mortgagor shall: (1) admit in writing an
inability to pay debts; (2) institute proceedings under any law
relating to bankruptcy, insolvency, assignment for the benefit of
creditors, or the reorganization, arrangement or relief of Loan;
(3) permit any of said proceedings to be instituted against it or
permit a trustee or receiver to be appointed in respect of the
Mortgaged property or the greater part of its properties, unless
such proceeding or appointment is contested and dismissed or
stayed within 60 days and prior to adjudication as a bankrupt or
insolvent; or (4) permit any other act of insolvency or
bankruptcy.
(g) If Mortgagor (i) shall fail to maintain its
corporate existence or shall dissolve or otherwise dispose of all
or substantially all of its assets; or (ii) shall consolidate
with or merge into another corporation or permit one or more
corporations to consolidate with or merge into it without the
prior written consent of Mortgagee.
(h) Mortgagor shall fail to pay the principal of
or interest on any other debt, liability or obligation, or any
part thereof, whether by acceleration or otherwise, which is owed
by Mortgagor to Mortgagee and such failure shall continue for
more than any applicable grace or cure period with respect
thereto.
2. After any default hereunder, Mortgagor shall, upon
demand, surrender possession of the Mortgaged Property to
Mortgagee, and Mortgagee may enter upon the Mortgaged Property in
a manner consistent with applicable law and let the same and
collect all the rents, income and profits therefrom, which are
due, or to become due, and apply the same, after payment of all
charges and expenses, on account of the Loan; and the said rents,
income and profits and all the leases existing at the time of
such default are hereby assigned to Mortgagee as further security
for the payment of the Loan. Mortgagee may also dispossess, by
the usual summary proceedings or otherwise, any tenant defaulting
in the payment to Mortgagee of any rent. In the event that
Mortgagor occupies the same or any portion thereof, Mortgagor
agrees to surrender possession thereof to Mortgagee immediately
upon any default hereunder and, if Mortgagor remains in
possession thereof after any default, the possessions shall be as
tenant of Mortgagee and Mortgagor agrees to pay in advance upon
demand and to Mortgagee a reasonable monthly rental for the
Mortgaged property so occupied and in default so doing Mortgagor
may also be dispossessed by the usual summary proceeding or
otherwise. This covenant shall become effective immediately
after the happening of any default and whether or not foreclosure
has been instituted and without applying for the appointment of a
receiver, solely on the determination of Mortgagee who shall give
notice of such determination to Mortgagor. In case of
foreclosure and the appointment of a receiver of said rents,
income and profits, this covenant shall inure to the benefit of
such receiver.
3. Mortgagee shall be entitled to the appointment of
a receiver of the rents and profits of the Mortgaged Property in
any action to foreclose this Mortgage, without notice and without
regard to the adequacy of any security for the Loan and without
regard to the solvency of any person, firm or corporation liable
for the payment thereof. Such receiver shall be entitled to
recover possession of the Mortgaged Property from the owner or
owners thereof and all persons in possession of the whole or any
part thereof. In case of sale under foreclosure, the Mortgaged
Property may be sold in one parcel, any provision of law to the
contrary notwithstanding.
4. Mortgagee may resort for the payment of the Loan
to any securities therefor, in such order and manner as it may
see fit, and Mortgagee may maintain an action to foreclose this
Mortgage notwithstanding the pendency of any action to recover
any part of the Loan, or the recovery of any judgment in such
action, nor shall Mortgagee be required during the pendency of
any action to foreclose this Mortgage, to obtain leave of any
court in order to commence or maintain any other action to
recover any part of the Loan. No act of Mortgagee shall be
construed as an election to proceed under any one provision
herein to the exclusion of any other provision. Mortgagee shall
not be limited exclusively to the rights and remedies herein
stated but shall be entitled to every right and remedy now or
hereafter afforded at law or in equity.
5. In event of a default hereunder and if an action
is commenced for the foreclosure of this Mortgage, Mortgagee
shall be entitled to recover all sums due hereunder, and under
the Loan, statutory costs and disbursements, any additional
allowance made pursuant to Section 8303, Civil Practice Law and
Rules, and in addition thereto, reasonable attorneys' fees, the
amount of all of which shall be added to the Loan and shall be a
lien on the Mortgaged Property, prior to any right, or title to,
interest in or claim upon the Mortgaged Property attaching or
accruing subsequent to the lien of this Mortgage, and shall be
deemed to be secured by this Mortgage.
Part 5. Construction, Amendment and Miscellaneous.
------ -----------------------------------------
1. This Mortgage is made and accepted subject to the
trust fund provisions of Section 13 of the Lien Law of the State
of New York.
2. The rights of Mortgagee herein specified shall be
in addition to its rights under Section 254 of the Real Property
Law of the State of New York.
3. This Mortgage shall not be modified, amended,
released, discharged or changed in any respect except by written
instrument signed by the parties hereto or their legal
representatives. All covenants and provisions of every kind in
this Mortgage shall bind and benefit the parties hereto and their
respective legal representatives, distributees, successors and
assigns. As used throughout this Mortgage, the term "Mortgagee"
and all words referring to Mortgagee shall mean and include any
holder of this Mortgage and the term "Mortgagor" and all words
referring to Mortgagor shall mean and include any subsequent
owner or owners of the Mortgaged property.
4. No waiver by Mortgagee of the breach of any of the
foregoing covenants or failure of Mortgagee to exercise any
option given to it shall be deemed to be a waiver of any other
breach of the same or any other covenant or of its rights
thereafter to exercise any such option. No delay by Mortgagee in
exercising any right or remedy hereunder or otherwise afforded by
law shall operate as a waiver thereof or preclude the exercise
thereof during the continuance of any default hereunder.
5. Any consent of Mortgagee asked or given under any
of the provisions hereof shall not be binding upon Mortgagee
unless the same shall be in writing and signed by Mortgagee or
its representative.
6. Notice and demand or request may be in writing and
may be reserved in person or by mail.
7. Any action or proceeding commenced by Mortgagee or
Mortgagor upon or affecting this Mortgage or the Loan, including
an action to foreclose this Mortgage, shall be brought and be
triable in Monroe County, State of New York, unless Mortgagee, in
its sole discretion, shall select such other county as would be,
absent this covenant, the proper county in which to bring such
action. Service of process may be by registered or certified
mail addressed to Mortgagor at its address first above recited or
to such other address of Mortgagor which Mortgagee shall have
obtained by actual or written notice.
8. If any provision herein shall be deemed invalid,
such provision shall be deemed omitted to the extent invalid, but
the remainder of such provision and the remaining provisions
hereof shall be given full effect.
9. This Mortgage shall be effective as a Uniform
Commercial Code Financing Statement given by Mortgagor as debtor
to Mortgagee as secured party. This "Financing Statement" covers
goods described herein by item or type which are or are to be
affixed to the real property described in Schedule A annexed
hereto.
IN WITNESS WHEREOF, Mortgagor and Mortgagee have caused
this Agreement to be duly executed as of the day and year first
above written.
MECHANICAL TECHNOLOGY
INCORPORATED
By: /s/ StephenT.Xxxxxx
---------------------------
Its: Chief Financial Officer
_______________________
CHASE LINCOLN FIRST BANK, N.A.
By: /s/ Xxxx X. Xxxx, Xx.
---------------------------
Xxxx X. Xxxx, Xx.
Xxxx Xxxxxxxxx
XXXXX XX XXX XXXX)
: SS.:
COUNTY OF ALBANY)
On this 12nd day of October, 1995, before me personally
came Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he resides at Delmar, New York ; that he
is the Chief Financial Officer of MECHANICAL TECHNOLOGY
INCORPORATED, the corporation described in and which executed the
within instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation.
M. Xxxxxx Xxxx
----------------------------
Notary Public
STATE OF NEW YORK)
: SS.:
COUNTY OF MONROE)
On this 10nd day of October, 1995, before me personally
came Xxxx X. Xxxx, Xx., to me known, who, being by me duly sworn,
did depose and say that he resides at in Pittsford, New York;
that he is a Vice President of CHASE LINCOLN FIRST BANK, N.A.,
the national banking association described in and which executed
the within instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation.
Xxxx X. Short
---------------------------
Notary Public
SCHEDULE A
to
CONSOLIDATION AGREEMENT
Granted by Mechanical Technology Incorporated
to
Chase Lincoln First Bank, N.A.
PARCEL A
All that certain tract, piece or parcel of land
situate, lying and being in the Town of Colonie, Albany County,
New York, lying generally Westerly of Xxxxxx-Xxxxxx Xxxx (Xxxxxx
Xxxx Xx. 000) and being further bounded and described as follows:
BEGINNING at a point at the intersection of the
division line between the lands now or formerly of Mechanical
Technology, Inc. on the North and the lands now or formerly of
Xxxxxx XxXxxxx on the South with the Westerly boundary of
Xxxxxx-Xxxxxx Xxxx (Xxxxxx Xxxx Xx. 000) and runs thence from
said point of beginning South 79 deg. 44 min. West along the said
above first mentioned division line 161.40 feet to its
intersection with the common division line between the lands now
or formerly of Mechanical Technology Inc. on the West and the
lands now or formerly of Xxxxxx XxXxxxx and lands now or formerly
of Xxxxxx XxXxxx on the East; thence along the above last
mentioned common division line the following two (2) courses:
South 11 deg. 59 min. East 195.00 feet to an angle point; thence
South 11 deg. 36 min. East 152.84 feet to its intersection with
the division line between the lands now or formerly of Mechanical
Technology, Inc. on the North and the lands now or formerly of
the Idlewood Club Inc. on the South; thence North 86 deg. 15 min.
West along the above last mentioned division line 1,023.97 feet
to its intersection with the division line between lands now or
formerly of Mechanical Technology Inc. on the East and the lands
now or formerly Xxxxx X. and Xxxxx Xxxxxx on the West; thence
North 19 deg. 17 min. East along the above last mentioned
division line 425.54 feet to its intersection with the common
division line between the lands now or formerly of Mechanical
Technology, Inc. on the Northeast and the lands now or formerly
of Xxxxx X. and Xxxxx Xxxxxx and lands now or formerly of British
American Development Corp. on the Southwest; thence North 42 deg.
11 min. West along the above last mentioned common division line
739.06 feet to its intersection line with the division line
between the lands now or formerly of Mechanical Technology Inc.
on the Southeast and the lands now or formerly of Xxxx and
Xxxxxx X. Xxxxxxxx on the Northwest; thence along the above last
mentioned division line the following three (3) courses:
1) North 35 deg. 40 min. East 507.58 feet to a point; 2) thence
North 82 deg. 29 min. East 271.04 feet to a point; and 3) thence
North 80 deg. 11 min. East 123.17 feet to a point; thence through
the lands now or formerly of Mechanical Technology Inc. the
following two (2) courses: South 04 deg. 46 min. East 717.74
feet to a point; thence North 85 deg. 14 min. East 689.09 feet to
a point on the above mentioned Westerly boundary of Xxxxxx-Xxxxxx
Xxxx (Xxxxxx Xxxx XX. 000); thence along the said above mentioned
Westerly highway boundary South 04 deg. 06 min. East, 458.92 feet
to the point or place of beginning and containing 26.52 acres of
land more or less.
Tax Account Number: Portion of 18-1-24
Property Address: Portion of 000 Xxxxxx-Xxxxxx
Xxxx, Xxxxxx, Xxx Xxxx 00000
PARCEL B
All that certain tract, piece or parcel of land
situate, lying and being in the Town of Colonie, Albany County,
New York, lying generally Westerly of Xxxxxx-Xxxxxx Xxxx (Xxxxxx
Xxxx Xx. 000) and being further bounded and described as follows:
BEGINNING at a point of the intersection of the common
division line between the lands now or formerly of Mechanical
Technology, Inc. on the Southwest and the lands now or formerly
of Office Assistance Inc. and lands now or formerly of Wanton X.
Xxxxxxx, Xx. on the Northeast with the Westerly boundary of
Xxxxxx-Xxxxxx Xxxx (Xxxxxx Xxxx Xx. 000) and runs thence from
said point of beginning along the above mentioned Westerly
highway boundary the following four (4) courses: 1) South 17
deg. 47 min. West 44.51 feet to a point; 2) thence South 12 deg.
46 min. West 50.20 feet to a point; 3) thence South 02 deg. 14
min. West 92.82 feet to a point; and 4) thence South 04 deg. 06
min. East 74.60 feet to a point; thence through the lands now or
formerly of Mechanical Technology Inc. the following two (2)
courses: South 85 deg. 14 min. West 689.09 feet to a point;
thence North 04 deg. 46 min. West 717.74 feet to a point on the
division line between the lands now or formerly of Mechanical
Technology Inc. on the South and the lands now or formerly of
Xxxx and Xxxxxx X. Xxxxxxxx on the North; thence along the above
last mentioned division line the following two (2) courses:
North 80 deg. 11 min. East 26.61 feet to a point; thence North 74
deg. 23 min. East 104.24 feet to its intersection with the above
first mentioned common division line; thence South 56 deg. 05
min. East along the said above first mentioned common division
line 774.44 feet to the point or place of beginning and
containing 8.87 acres of land more or less.
EXCEPTING AND RESERVING THEREFROM, all that certain
piece or parcel of land described in a certain Notice of
Appropriation dated September 27, 1990 and recorded the same day
in the Albany County Clerk's Office in Book 2424 of Deeds at
page 132.
Tax Account Number: Portion of 18-1-24
Property Address: Portion of 000 Xxxxxx-Xxxxxx
Xxxx, Xxxxxx, Xxx Xxxx 00000
PARCEL C
ALL THAT TRACT PIECE OR PARCEL OF LAND, situate, lying
and being in the Town of Colonie, Albany County, New York, lying
along the Westerly side of the Albany-Shaker Road, and being
further bounded and described as follows:
BEGINNING at an iron pipe in the westerly line of the
Albany-Shaker Road distant North 11 deg. 21 min. west,
ninety-five (95) feet from an iron pipe in the north-easterly
corner of the lands now or formerly of Xxxxxx XxXxxx and runs
thence along the westerly side of the Albany-Shaker Road, north
11 deg. 21 min. west, one hundred feet (100.0') to an elm tree;
thence along the southerly line of lands now or formerly of Xxxx
Male, south 80 deg. 22 min. west, one hundred sixty-three feet
(163.0') to an iron pipe; thence south 11 deg. 21 min. east, one
hundred feet (100.0') to an iron pipe; thence north 80 deg. 22
min. east, one hundred sixty-three feet (163.0') to the point or
place of beginning and containing about 0.374 of an acre of land.
The above bearings being as surveyed by C.T. Male Associates,
Xxxxxxx X. Male, Jr. L.S., June 7, 1956.
Being and intending to convey the same premises
conveyed to mortgagor by deed dated November 3, 1981 and recorded
in the Albany County Clerk's Office on November 18, 1981 in
Book 2214 of Deeds at Page 845.
Tax Account Number:
Property Address: 000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
