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