EXHIBIT 10-14
Loan Agreement
by and between
Artistic Greetings Incorporated
and
New York State Urban Development Corporation
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS AND ACCOUNTING TERMS.
Section 1.01 Certain Defined Terms
Section 1.02 Accounting Terms
ARTICLE 2: THE CREDIT.
Section 2.01 The Loan
Section 2.02 The Note
Section 2.03 Purpose of Loan; Project
Section 2.04 Prepayments
Section 2.05 Interest
Section 2.06 Payments
ARTICLE 3: CONDITIONS PRECEDENT.
Section 3.01 Conditions Precedent
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF BORROWER.
Section 4.01 Incorporation, Good Standing and Due Qualification
Section 4.02 Corporate Power and Authority; No Conflicts
Section 4.03 Legally Enforceable Agreements
Section 4.04 Litigation
Section 4.05 Financial Statements
Section 4.06 Ownership and Liens
Section 4.07 Taxes
Section 4.08 Operation of Business; Compliance with Laws
Section 4.09 Subsidiaries and Ownership of Stock
Section 4.10 Credit Arrangements
Section 4.11 No Default on Outstanding Judgments or Orders
Section 4.12 Labor Disputes and Acts of God
Section 4.13 Financial Support
Section 4.14 Application and Documents Submitted to Lender
ARTICLE 5: AFFIRMATIVE COVENANTS.
Section 5.01 Maintenance of Existence
Section 5.02 Conduct of Business
Section 5.03 Maintenance of Properties
Section 5.04 Maintenance of Records
Section 5.05 Maintenance of Insurance
Section 5.06 Compliance with Laws
Section 5.07 Taxes
Section 5.08 Right of Inspection and Audit
Section 5.09 Reporting Requirements
Section 5.10 Employee Reporting Form
Section 5.11 Reduction in Permanent Workforce
Section 5.12 Non-Discrimination and Affirmative Action
ARTICLE 6: NEGATIVE COVENANTS.
Section 6.01 Debt
Section 6.02 Transactions with Affiliates
Section 6.03 Location of Business
Section 6.04 Compensation
ARTICLE 7: EVENTS OF DEFAULT.
Section 7.01 Events of Default
Section 7.02 Remedies
ARTICLE 8: MISCELLANEOUS.
Section 8.01 Amendments and Waivers
Section 8.02 Usury
Section 8.03 Expenses
Section 8.04 Indemnification
Section 8.05 Assignment
Section 8.06 Notices
Section 8.07 Jurisdiction; Immunities
Section 8.08 Captions
Section 8.09 Severability
Section 8.10 Counterparts
Section 8.11 Governing Law
EXHIBITS
Exhibit A Note
Exhibit B Employee Reporting Form
Exhibit C Request for Disbursement
SCHEDULES
Schedule 3.01(d)Support
Schedule 4.06Liens
LOAN AGREEMENT
THIS AGREEMENT made this 23rd day of October, 1995, by and between
Artistic Greetings Incorporated, a corporation duly organized and
existing under the laws of the State of Delaware, having its principal
offices and place of business at Xxx Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxx,
Xxx Xxxx 00000-0000 ("Borrower") and New York State Urban Development
Corporation, a corporate governmental agency of the State of New York,
constituting a political subdivision and public benefit corporation,
having its principal office and place of business at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000 ("Lender").
ARTICLE 1: DEFINITIONS AND ACCOUNTING TERMS.
Section 1.01. CERTAIN DEFINED TERMS. As used herein, the following
terms have the following meanings (terms defined in the singular shall
have the same meaning when used in the plural and VICE VERSA):
"Affiliate" means any Person: (a) which is a director, officer
or employee of Borrower; (b) which directly or indirectly controls,
or is controlled by, or is under common control with, Borrower; or
(c) which directly or indirectly beneficially owns or holds 10% or
more of any class of voting stock of Borrower. The term "control"
means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise.
"Application" means the application submitted by Borrower to UDC
in connection with the Loan as such application may have been
amended or supplemented.
"Capital Lease" means any lease which has been capitalized on the
books of the Borrower in accordance with GAAP.
"Debt" means, with respect to any Person, all indebtedness of
such Person for borrowed money, whether fixed or contingent or
secured or unsecured, including, without limitation, indebtedness
for the deferred purchase price of property or services, the face
amount of any outstanding letters of credit issued for the account
of such Person, all guaranties, endorsements (other than for
collection in the ordinary course of business) and other contingent
obligations to purchase, to provide funds for payment, to supply
funds to invest in any Person, or otherwise to assure a credit
against loss, any obligations secured by any Lien on property of
such Person, and all obligations of such Person as lessee under
Capital Leases.
"Default" means any event which with the giving of notice or
lapse of time, or both, would become an Event of Default.
"Default Rate" means a variable rate per annum of 2% above the
Prime Rate as in effect from time to time upon the occurrence of
each event which causes the Loan to bear interest at the Default
Rate.
"Event of Default" has the meaning set forth in Section 7.01.
"Full-Time Permanent Employee" means either (a) an employee on
Borrower's payroll, who has worked at the Premises for a minimum of
thirty-five hours per week for not less than twelve consecutive
weeks and who is entitled to receive the usual and customary fringe
benefits extended by Borrower to other employees with comparable
rank and duties; or (b) two employees on Borrower's payroll, who
have worked at the Premises for a combined minimum of thirty-five
hours per week for not less than twelve consecutive weeks and who
are entitled to receive the usual and customary fringe benefits
extended by Borrower to other employees with comparable rank and
duties.
"GAAP" means generally accepted accounting principles in the
United States of America, as in effect on the date hereof.
"Lien" means any lien (statutory or otherwise), security
interest, mortgage, deed of trust, priority, pledge, charge,
conditional sale, title retention agreement, financing lease or
other encumbrance or similar right of others, or any agreement to
give any of the foregoing.
"Loan" means the loan made by Lender to Borrower pursuant to this
Agreement.
"Loan Documents" means this Agreement and the Note.
"Note" shall have the meaning set forth in Section 2.02 hereof.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever nature.
"Premises" means the principal office of the Borrower located at
the address listed on page 1 of this Agreement or any of its
production facilities.
"Prime Rate" means the prime rate of interest as published in The
Wall Street Journal from time to time.
"Project" shall have the meaning set forth in Section 2.03
hereof.
"Reduction in Permanent Workforce" shall have the meaning set
forth in Section 5.11 hereof.
"Related Person" means any Person related by blood or marriage to
another Person.
"Subsidiary" means, as to any Person, any corporation or other
entity of which at least a majority of the securities or other
ownership interests having ordinary voting power (absolutely or
contingently) for the election of directors or other persons
performing similar functions are at the time owned directly or
indirectly by such Person.
"Support Schedule" shall mean a schedule supporting the
disbursement substantially in the form of Schedule 3.01(d) hereto.
Section 1.02. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP,
and all financial data required to be compiled or delivered hereunder
shall be prepared in accordance with GAAP.
ARTICLE 2: THE CREDIT.
Section 2.01. THE LOAN. Subject to the terms, covenants and
conditions of the Loan Documents, Lender agrees to lend to Borrower the
aggregate sum of Four Hundred Thousand Dollars ($400,000) (the "Loan").
The Loan shall be disbursed in one lump sum on
October 24, 1995 (the "Disbursement Date").
Section 2.02. THE NOTE. The Loan shall be evidenced by a
promissory note of even date herewith duly completed and executed by
Borrower in substantially the form attached hereto as Exhibit A (the
"Note"), the terms, covenants and conditions of which are hereby
incorporated herein.
Section 2.03. PURPOSE OF LOAN; PROJECT. Borrower has substantially
completed the renovation of its production facility on Lake Road in
Elmira, New York (the "Project") and will use the proceeds of the Loan as
reimbursement for a portion of the expenditures (such expenditures in an
amount substantially exceeding the amount of the Loan) already made by
the Borrower in connection with the Project.
Section 2.04. PREPAYMENTS. Borrower shall have the right to prepay
the Loan at any time or from time to time without penalty.
Section 2.05. INTEREST. No interest shall accrue on the
outstanding and unpaid principal amount of the Loan.
Section 2.06. PAYMENTS. The Loan shall be payable in accordance
with the Note.
ARTICLE 3: CONDITIONS PRECEDENT.
Section 3.01. CONDITIONS PRECEDENT. The obligation of Lender to
the disbursement under the Loan on the Disbursement Date shall be subject
to the following conditions precedent as of such date:
I. The following statements shall be true:
A. the representations and warranties contained in Article 4
of this Agreement are true and correct on and as of the
Disbursement Date; and
B. no Default or Event of Default has occurred or would
result from the disbursement.
II. Lender shall have received such approvals, opinions or documents as
provided in this Agreement.
III.The Borrower shall not have suffered a material adverse change in
its financial condition.
IV. Lender shall have received a Request for Disbursement in the form
set forth as Exhibit C to this Agreement, together with a Support
Schedule in the form set forth as Schedule 3.01(d) attached hereto.
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants as follows:
Section 4.01. INCORPORATION, GOOD STANDING AND DUE QUALIFICATION.
Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, has the corporate power
and authority to own its assets and to transact business in which it is
now engaged and is duly qualified as a foreign corporation and in good
standing under the laws of each other jurisdiction in which such
qualification is required.
Section 4.02. CORPORATE POWER AND AUTHORITY; NO CONFLICTS. The
execution, delivery and performance by Borrower of the Loan Documents
have been duly authorized by all necessary corporate action and do not
and will not: (a) require any consent or approval of its stockholders or
Board of Directors; (b) contravene its charter or by-laws; (c) violate
any provision of, or require any filing, registration, consent or
approval under, any law, rule, regulation, order writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to Borrower or any of its Affiliates; (d) result in a
breach of, or constitute a default or require any consent under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which Borrower is a party or by which it or its properties
may be bound or affected; (e) result in, or require, the creation or
imposition of any Lien, upon or with respect to any of the properties now
owned by Borrower; or (f) cause Borrower (or any Affiliate) to be in
default under any law, rule, regulation, order writ, judgment,
injunction, decree, determination or award or any such indenture,
agreement, lease or instrument.
Section 4.03. LEGALLY ENFORCEABLE AGREEMENTS. Each Loan Document
is, or when delivered under this Agreement will be, a legal, valid and
binding obligation of Borrower enforceable against Borrower in accordance
with its terms, except to the extent that such enforcement may be limited
by bankruptcy, insolvency and other similar laws affecting creditors'
rights generally.
Section 4.04. LITIGATION. There are no actions, suits or
proceedings pending or, to the knowledge of Borrower, threatened against
or affecting Borrower before any court, governmental entity or
arbitrator, which may, in any one case or in the aggregate, materially
adversely affect the financial condition, operations, properties or
business of Borrower, or the ability of Borrower to perform its
obligations under the Loan Documents.
Section 4.05. FINANCIAL STATEMENTS. The financial statements of
Borrower for the fiscal year of Borrower ended on December 31, 1994,
together with the opinion thereon, dated February 17, 1995, of
independent certified public accountants, and the interim financial
statements of Borrower for the six months ended on June 30, 1995, copies
of which have been furnished to Lender, are complete and correct and
fairly present the financial condition of Borrower as of such dates and
the results of the operations of Borrower for the periods covered by such
statements, all in accordance with GAAP consistently applied (subject to
year-end adjustments in the case of the interim financial statements).
There are no liabilities of Borrower, fixed or contingent, which are
material but are not reflected in such financial statements or in the
notes thereto. Since the date of the financial statements for the most
recently concluded fiscal reporting period of Borrower referred to above
and submitted to Lender, there has been no material adverse change in the
financial condition of Borrower.
Section 4.06. OWNERSHIP AND LIENS. Borrower has to, or valid
leasehold interests in, all of its properties and assets, real and
personal, including the properties and assets, and leasehold interests
identified in the Application or in any information, report or exhibit
submitted in connection with the Application or reflected in the
financial statements referred to in Section 4.05 (other than any
properties or assets disposed of in the ordinary course of business), and
none of the properties and assets owned by Borrower and none of its
leasehold interests are subject to any Lien, except as disclosed in the
Application, or such information, exhibit, report or financial statements
or as listed on Schedule 4.06 attached hereto or as may be permitted
hereunder.
Section 4.07. TAXES. Borrower has filed all tax (federal, state
and local) returns required to be filed and has paid all taxes,
assessments and governmental charges and levies thereon to be due,
including interest and penalties (except such amounts being protested in
good faith as of the date hereof).
Section 4.08. OPERATION OF BUSINESS; COMPLIANCE WITH LAWS.
Borrower possesses all material licenses, permits, franchises, patents,
copyrights, trademarks and trade names, or rights thereto, to conduct its
business substantially as now conducted and as presently proposed to be
conducted, and Borrower is not aware that it is in violation of any valid
rights of others with respect to any of the foregoing.
To its knowledge, the Borrower is in compliance in all respects with
all applicable laws, rules, regulations and orders applicable to it.
Section 4.09. SUBSIDIARIES AND OWNERSHIP OF STOCK. The Borrower
has no subsidiaries.
Section 4.10. CREDIT ARRANGEMENTS. Except as has been disclosed to
Lender in writing, the financial statements of Borrower referred in
Section 4.05 identify all credit agreements, indentures, purchase
agreements, guaranties, Capital Leases and other investments, agreements
and arrangements in effect as of the date of such financial statements
providing for or relating to extensions of credit (including agreements
and arrangements for the issuance of letters of credit) in respect of
which Borrower is in any manner directly or contingently obligated, which
individually or in the aggregate exceed $1,000,000; and the maximum
principal or face amounts of the credit in question outstanding and which
can be outstanding are correctly stated, and all Liens of any nature
given as security therefor are correctly described or indicated in such
financial statements.
Section 4.11. NO DEFAULT ON OUTSTANDING JUDGMENTS OR ORDERS.
Borrower has satisfied all judgments and is not in default with respect
to any judgment, writ, injunction, decree, rule or regulation of any
court, arbitrator or federal, state, municipal or other governmental
authority, commission, board, bureau, agency or instrumentality, domestic
or foreign that would have a material adverse effect on the Borrower's
financial condition. The Borrower is not a party to any indenture, loan
or credit agreement or any lease or other agreement or instrument or
subject to any charter or corporate restriction which would have a
material adverse effect on the financial condition of Borrower or the
ability of Borrower to carry out its obligations under the Loan
Documents.
Section 4.12. LABOR DISPUTES AND ACTS OF GOD. Neither the business
nor the properties of Borrower are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance), materially and adversely affecting
the financial condition of the Borrower.
Section 4.13. FINANCIAL SUPPORT.
(a) Borrower has obtained financial support or secured binding, written
commitments to provide financial support in the amount necessary to
undertake the Project to completion. The following Persons have
provided Borrower with financial support or commitments to provide
financial support in amounts not less than those set forth opposite
their names:
Southern Tier Economic Development Corporation$200,000
(b) The amount contributed by Borrower in support of the Project is
$4,200,000.
Section 4.14. APPLICATION AND DOCUMENTS SUBMITTED TO LENDER. All
information contained in the Application or submitted to Lender in
connection with the Loan is complete and correct and fairly presents the
condition, operations and prospects of Borrower as of the date hereof.
Borrower has not misstated, omitted or withheld any fact in connection
with its Application upon which Lender may have relied in its decision to
make the Loan. Each invoice, xxxx of sale, receipt, check or other
document or instrument, heretofore or hereafter submitted to Lender by
Borrower in connection with the Loan, upon submission was or shall be
complete and genuine and accurately reflect the transaction to which it
relates.
ARTICLE 5: AFFIRMATIVE COVENANTS. So long as the Note shall remain
unpaid, Borrower agrees as follows:
Section 5.01. MAINTENANCE OF EXISTENCE. Borrower shall preserve
and maintain its corporate existence and good standing in the
jurisdiction of its incorporation, and qualify and remain qualified, as a
foreign corporation in each jurisdiction in which such qualification is
required.
Section 5.02. CONDUCT OF BUSINESS. Borrower shall continue to
engage in its business substantially as conducted by it on the date of
this Agreement. Notwithstanding the foregoing, the Borrower may expand
its business in the event Borrower, in its sole judgment, deems such
expansion necessary.
Section 5.03. MAINTENANCE OF PROPERTIES. Borrower shall maintain,
keep and preserve all of its properties (tangible and intangible)
necessary or useful in the proper conduct of its business in good working
order and condition, ordinary wear and tear excepted.
Section 5.04. MAINTENANCE OF RECORDS. Borrower shall keep adequate
records and books of account, in which complete entries will be made in
accordance with GAAP, reflecting all financial transactions of Borrower
and retain such records and books for three years after payment in full
of the Loan.
Section 5.05. MAINTENANCE OF INSURANCE. Borrower shall maintain in
full force and effect adequate insurance substantially similar to the
insurance in place on the date hereof.
Section 5.06. COMPLIANCE WITH LAWS. Borrower shall comply in all
material respects with all applicable federal, state and local laws,
rules, regulations and orders.
Section 5.07. TAXES. Borrower shall file when due all tax returns
required to be filed by all applicable federal, state and local laws and
shall make timely payment of all taxes, assessments and governmental
charges and levies assessed, charged or properly imposed upon Borrower or
any of its properties.
Section 5.08. RIGHT OF INSPECTION AND AUDIT. At any reasonable
time and upon reasonable notice, Borrower shall permit Lender or any
agent or representative thereof, to examine and make copies and abstracts
from the records and books of account of, and visit the properties of the
Borrower and to discuss the affairs, finances and accounts of Borrower
with officers of the Borrower and with Borrower's independent
accountants. Lender's right of inspection and audit pursuant to this
Section shall survive the payment of the Loan and remain in full force
and effect for three years thereafter.
Section 5.09. REPORTING REQUIREMENTS. Borrower shall furnish to
Lender the following financial information:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within 120 days after the end of each fiscal year of Borrower
financial statements of Borrower reasonably detailed and stating in
comparative form the respective figures for the corresponding date
and period in the prior fiscal year and prepared in accordance with
GAAP and accompanied by an opinion thereon reasonably satisfactory
to Lender by the Borrower's independent public accountant.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in any
event within 90 days subsequent to the end of each of the first
three quarters of each fiscal year of Borrower financial statements
of Borrower as of the end of such quarter, reasonably detailed and
stating in comparative form the respective figures for the
corresponding date and period in the previous fiscal year and
prepared in accordance with GAAP and certified by the chief
financial officer of Borrower (subject to year-end adjustments).
(c) MANAGEMENT LETTERS. Promptly upon receipt thereof, copies of any
reports submitted to Borrower by independent public accounts in
connection with examination of the financial statements of Borrower
made by such accountants.
(d) NOTICE OF LITIGATION. Promptly after the commencement thereof,
notice of all actions, suits, and proceedings before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting Borrower which, if
determined adversely to Borrower, would have a material adverse
effect on the financial condition of Borrower.
(e) NOTICE OF DEFAULTS AND EVENTS OF DEFAULT. As soon as possible and
in any event within 30 days after the occurrence of a Default or
Event of Default, a written notice setting forth the details of such
Default or Event of Default and the action which is proposed to be
taken by Borrower with respect thereto.
(f) PROXY STATEMENTS, ETC. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports which Borrower sends to its stockholders and all
registration statements which Borrower files with the Securities and
Exchange Commission or any governmental authority which may be
substituted therefor, or with any national securities exchange.
Section 5.10. EMPLOYEE REPORTING FORM. Borrower shall furnish to
Lender, not later than March 1 of each year, an employee reporting form
substantially in the form attached hereto as Exhibit B stating the number
of Full-Time Permanent Employees as of the immediately preceding January
1.
Section 5.11. REDUCTION IN PERMANENT WORKFORCE. Borrower shall
notify Lender in writing, not less than ninety (90) days subsequent to a
Reduction in Permanent Workforce. For the purposes hereof, "Reduction in
Permanent Workforce" means a reduction in the number of Borrower's Full-
Time Permanent Employees which, individually or in the aggregate, results
in a reduction of the greater of (a) 600 Full-Time Permanent Employees or
(b) 50% or more of the number of Full-Time Permanent Employees on the
date of the first reduction.
Section 5.12. NON-DISCRIMINATION AND AFFIRMATIVE ACTION.
(a) Borrower shall comply in all material respects with all United
States and New York State laws and regulations prohibiting
discrimination against any employee or applicant for employment
because of race, creed, color, national origin, ancestry, sex, age,
disability or marital status.
(b) Borrower shall continue its program of equal opportunity pursuant to
which Borrower shall provide all employees of Borrower, and
applicants for employment with Borrower, with equal employment
opportunities with respect to, but not limited to, recruitment, job
assignment, promotion, demotion, transfer, lay-off or termination,
rates of pay or other compensation, and selection for training or
re-training, including apprenticeship and on-the-job training.
ARTICLE 6: NEGATIVE COVENANTS. So long as the Note shall remain unpaid,
Borrower agrees as follows:
Section 6.01. DEBT. Borrower shall not create, incur, assume or
suffer to exist any Debt, except:
(a) Debt of Borrower under this Agreement or the Note;
(b) Debt that would be reasonably likely to prevent the Borrower from
repaying the Loan or satisfy its obligations under this Agreement or
the Note.
Section 6.02. TRANSACTIONS WITH AFFILIATES.
(a) Borrower shall not enter into any transaction, including, without
limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate, including without
limitation, the purchase, sale or exchange of property or the
rendering of any service with any Affiliate, except in the ordinary
course of and pursuant to the reasonable requirements of Borrower's
business and upon fair and reasonable terms no less favorable to
Borrower than would obtain in a comparable arm's length transaction
with a Person who is not an Affiliate.
Section 6.03. LOCATION OF BUSINESS. Borrower shall not remove its
business operations away from the State of New York.
Section 6.04. COMPENSATION. Borrower shall not pay any
compensation (whether by way of salary, emoluments, stock options, bonus
or otherwise) to any director, officer, employee or agent in excess of
that which is reasonable and customary for enterprises engaged in a
similar business and similarly situated.
ARTICLE 7: EVENTS OF DEFAULT.
Section 7.01. EVENTS OF DEFAULT. Any of the following events shall
be an "Event of Default":
(a) Borrower shall fail to pay the principal of the Note within forty-
five (45) days after such principal payment is due and payable.
(b) Any representation or warranty made or deemed made by Borrower in
any Loan Document or which is contained in any certificate,
document, opinion, financial or other statement furnished at any
time under or in connection with any Loan Document shall have been
incorrect in any material respect on or as of the date made or
deemed made.
(c) Borrower shall fail to perform or observe any term, covenant or
agreement on its part to be performed or observed in any Loan
Document and such failure shall continue for sixty (60) consecutive
days after notice.
(d) Borrower shall fail to perform or observe any material term,
covenant or condition on its part to be performed or observed under
any agreement or instrument relating to any such indebtedness, when
required to be performed or observed, if the effect of such failure
to perform or observe would (i) have a material adverse effect on
the financial condition of the Borrower; and (ii) cause the
acceleration or permit the acceleration of, after the giving of
notice or passage of time, or both, the maturity of such
indebtedness unless such failure to perform or observe shall be
waived by the holder of such indebtedness.
(e) Borrower (i) shall be unable to, or shall admit in writing its
inability to, pay its debts as such debts become due; or (ii) shall
petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part of its
assets; or (iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statue of any jurisdiction, whether now or
hereafter in effect; or (iv) shall have had any such petition or
application filed or any such proceeding shall have been commenced
against it in which an adjudication or appointment is made or order
for relief is entered, or which petition, application or proceeding
remains undismissed for a period of 90 days or more; or (v) by any
act or omission shall indicate its consent to, approval of or
acquiescence in any such petition, application or proceeding or
order for relief or the appointment of a custodian, receiver or
trustee for all or any substantial part of its properties; or (vi)
shall suffer any such custodianship, receivership or trusteeship to
continue undischarged for a period of 90 days or more.
(f) One or more judgments, decrees or orders for the payment of money
which individually or in the aggregate shall result in a material
adverse change in the financial condition of Borrower or any such
judgments, decrees or orders shall continue unsatisfied and in
effect for a period of 90 consecutive days without being vacated,
discharged, satisfied or stayed or bonded pending appeal.
(g) If Borrower shall dissolve or for any reason cease to be in
existence.
Section 7.02. REMEDIES. If any Event of Default shall occur,
Lender may, by notice to Borrower, declare the outstanding principal of
the Note and all other amounts payable under this Agreement and the Note
to be forthwith due and payable, whereupon the Note, all such amounts
shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by Borrower.
The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
ARTICLE 8: MISCELLANEOUS.
Section 8.01. AMENDMENTS AND WAIVERS. No amendment or waiver of
any provision of this Agreement nor consent to any departure by Borrower
therefrom shall in any event be effective unless the same shall be in
writing and signed by an authorized officer of Lender, and then such
waiver or consent shall be effective only in the specific instance and
for the specified purpose for which given. No failure on the part of
Lender to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof of preclude any other or further exercise
thereof or the exercise of any other right.
Section 8.02. USURY. Anything herein to the contrary
notwithstanding, the obligations of Borrower under this Agreement and the
Note shall be subject to the limitation that payments of interest shall
not be required to the extent that receipt thereof would be contrary to
provisions of law applicable to Lender limiting rates of interest which
may be charged or collected by Lender.
Section 8.03. EXPENSES. Borrower shall reimburse Lender on demand
for all reasonable costs, expenses and charges (including, without
limitation, reasonable fees and charges of external legal counsel for
Lender) incurred by Lender in connection with the preparation,
performance or enforcement of this Agreement or the Note or the making of
the Loan. The obligations of Lender under this Section shall survive the
repayment of the Loan.
Section 8.04. INDEMNIFICATION. Borrower agrees to indemnify Lender
and its directors, officers, employees and agents from, and hold each of
them harmless against, any and all losses, liabilities, claims, damages
or expenses incurred by any of them arising out of or by reason of any
investigation or litigation or other proceedings (including any
threatened investigation obligation or other proceedings) relating to any
actual use by Borrower of the proceeds of the Loan, including without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings
(but excluding any such losses, liabilities, claims, damages or expenses
incurred by reason of the negligence or misconduct of Lender). The
obligations of Borrower under this Section shall survive repayment of the
Loan.
Section 8.05. ASSIGNMENT. This Agreement shall be binding upon,
and shall inure to the benefit of, Borrower, Lender and their respective
successors and assigns. Upon the consent of the Borrower and such
consent shall not be unreasonably withheld, Lender may assign all or any
part of the Loan to a bank or other entity, in which event upon notice
thereof by Lender to Borrower, the assignee shall have, to the extent of
such assignment (unless otherwise provided therein), the same rights and
benefits as it would have if it were Lender hereunder. Lender may
furnish any information concerning Borrower in the possession of Lender
from time to time to assignees and prospective assignees.
Section 8.06. NOTICES. Unless the party to be notified otherwise
notifies the other party in writing as provided in this Section and
except as otherwise provided in this Agreement, notices shall be given to
Lender and to Borrower by hand, by facsimile confirmed in writing or by
certified mail, return receipt requested, addressed to such party at its
address set forth below. Notices shall be effective:
(a)if given by certified mail, 72 hours after deposit in the mails
with first class postage prepaid, addressed and aforesaid;
(b)if sent by facsimile upon receipt; and
(c)if given by hand, upon receipt:
Address for notices to Lender
New York State Urban Development Corporation
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxx, Executive Vice President
Facsimile No:
Address for notices to Borrower
Artistic Greetings Incorporated
Xxx Xxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, General Counsel
Facsimile No:(000) 000-0000
Section 8.07. JURISDICTION; IMMUNITIES.
(a)Borrower hereby irrevocably submits to the jurisdiction of any New
York State or United States Federal court sitting in New York State
or, at Lender's sole discretion, over any action or proceeding
arising out of or relating to this Agreement or the Note, and
Borrower hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such New
York State or Federal Court. Borrower irrevocably consents to the
service of any and all process in any such action or proceeding by
the mailing of copies of such process to Borrower at its address set
forth above. Borrower agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law.
(b)Nothing in this Section shall affect the right of either party
hereto to serve legal process in any other manner permitted by law
or affect the right of Lender to bring any action or proceeding
against Borrower or its property in the courts of any other
jurisdictions.
(c)To the extent that Borrower has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect
to itself or its property, Borrower hereby irrevocably waives such
immunity in respect of its obligations under this Agreement and the
Note.
Section 8.08. CAPTIONS. The captions and headings hereunder are
for convenience only and shall not affect the interpretation or
construction of this Agreement.
Section 8.09. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this
Agreement shall be held invalid or unenforceable in whole or in part in
any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
in any manner affecting the validity or enforceability thereof in any
other jurisdiction or the remaining provisions hereof in any
jurisdiction.
Section 8.10. COUNTERPARTS. This agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
and the same instrument and any party hereto may execute this Agreement
by signing any such counterpart.
Section 8.11. GOVERNING LAW. This Agreement shall be governed by,
and interpreted and construed in accordance with, the laws of the State
of New York.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed as of the day and year first above written.
ARTISTIC GREETINGS INCORPORATED
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title:General Counsel
NEW YORK STATE URBAN
DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Title:Executive Vice President
STATE OF NEW YORK )
) SS:
COUNTY OF CHEMUNG )
On the 23rd day of October, 1995, before me personally came Xxxxxx
X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx; that he is the
General Counsel of Artistic Greetings Incorporated, the corporation
described in and which executed the foregoing instrument; and that he
signed his name thereto.
____________________________
Notary Public
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On the [ ] day of October, 1995, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say
that he resides at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx; that he is the
Executive Vice President of the New York State Urban Development
Corporation, the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the
directors of said corporation.
____________________________
Notary Public
Exhibit A
NOTE
(Single Disbursement)
October 23, 0000
Xxx Xxxx, Xxx Xxxx $400,000.00
FOR VALUE RECEIVED, Artistic Greetings Incorporated, a corporation
organized under the laws of the State of Delaware, having its principal
office and place of business at Xxx Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxx,
Xxx Xxxx 00000-0000 ("Borrower") hereby unconditionally promises to pay
to the order of New York State Urban Development Corporation with offices
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, ("Lender"), the
principal sum of Four Hundred Thousand Dollars ($400,000) (the "Principal
Amount") pursuant to that certain Loan Agreement of even date herewith
between Borrower and Lender (the "Loan Agreement").
The terms, covenants and conditions of the Loan Agreement are by
this reference incorporated herein. Defined terms utilized and not
otherwise defined herein shall have the meaning assigned to such term in
the Loan Agreement. The Loan Agreement provides for the acceleration of
the amounts payable under this Note upon the occurrence and/or
continuance of Events of Default.
1. PAYMENTS. The Loan shall be payable in accordance with the
amortization schedule attached hereto as Schedule I.
All payments of principal shall be made in lawful funds of the
United States of America and sent to the New York State Urban Development
Corporation, 0000 Xxxxxxxx, Xxx Xxxx Xxx Xxxx 00000-0000, to the
attention of the Controller, or to such other address as the holder
hereof may designate in writing to Borrower from time to time. Payments
shall be deemed made when received by the holder hereof in accordance
with the foregoing.
Borrower hereby waives presentment, notice of dishonor, protest and
any other notice or formality with respect to this Note.
2. LATE CHARGE; RETURNED CHECKS. In the event that any payment
required hereby shall become overdue for a period in excess of thirty
(30) days, a late charge of five cents ($.05) for each dollar so overdue
shall become immediately due and payable. Borrower shall pay Lender a
returned check charge of the greater of twenty-five dollars ($25.00) or
costs incurred by Lender for each check tendered by Borrower as payment
of any payment under the Loan Documents which is returned unpaid for any
reason by Lender's depository bank.
3. PREPAYMENTS. Borrower shall have the right from time to time to
prepay the unpaid principal balance due hereunder, in whole or in part,
without premium or penalty; PROVIDED, HOWEVER, that any such prepayment
shall be applied first to accrued and unpaid interest, other amounts
payable under the Loan Documents and then to principal installments.
4. DEFAULT RATE. If any amount of principal, interest or any other
amount payable under the Loan Documents shall not be paid when due (at
stated maturity, by acceleration or otherwise), interest shall accrue on
such amount from and including such due date to but excluding the date
paid in full at the Default Rate. Interest accruing at the Default Rate
shall be due and payable from time to time on demand of Lender.
5. MISCELLANEOUS. This Note may not be modified, amended, waived or
otherwise altered in whole or in part except by a further writing signed
by the party to be charged. This Note shall be binding upon the Borrower
and its successors and assigns and shall inure to the benefit of Lender
and its successors, assigns and transferees.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by
its duly authorized officer as of the date and year set forth above.
ARTISTIC GREETINGS INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title:General Counsel
STATE OF NEW YORK )
) SS:
COUNTY OF CHEMUNG )
On the 23rd day of October, 1995, before me personally came Xxxxxx
X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx; that he is the
General Counsel of Artistic Greetings Incorporated, the corporation
described in and which executed the foregoing instrument; and that he
signed his name thereto.
____________________________
Notary Public
Exhibit B
EMPLOYEE REPORTING FORM
ANNUAL REPORT OF EMPLOYMENT
As of January 1, 1995
Date:[ ], 1996
To: New York State Urban Development Corporation
Attention: Director, Project Administration
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
From: Artistic Greetings Incorporated
Attention: Xxxx Xxxxxx, Training and Community Relations
Coordinator
Xxx Xxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxx Xxxx 00000-0000
RE: UDC Project Name: [ ]
Please fill in the following information as of January 1, 1995
FULL-TIME EMPLOYEES
Total
MALE FEMALE EMPLOYED
White
Black
Hispanic
Asian
American Indian
NOTE:A full-time employee works 35-40 hours per week. Use a fraction for
part-time employees (i.e., .5 = one employee working 17 1/2-20 hours per
week).
As a condition of funding, your company has agreed for new employment
opportunities, individuals on Public Assistance and those eligible to
participate in federal Job Training Partnership Act Programs:
Please check all that apply
________ I have contacted the NYS Department of Labor Job Service and
interviewed recipients.
________ I need from UDC additional assistance in contacting NYS
Department of Labor Job Service.
________ I have hired employees through the DOL Job Service and I have
found my experience with DOL Job Service to be:
Excellent Good Acceptable Unacceptable
Do you have any additional needs in identifying or training
disadvantaged workers that UDC or NYS Department of Labor could
be helpful with?
____________________________________________________________
____________________________________________________________
The information included herein is correct to the best of my knowledge
and belief.
Signature:________________________________ Date:___________________
Print Name and Title:________________________________
Any false statement herein may cause the borrower to be in default under
its loan agreement with UDC.
REQUEST FOR DISBURSEMENT
Artistic Greetings Incorporated ("Borrower") hereby requests,
pursuant to that certain Loan Agreement, dated as of October 23, 1995
("Loan Agreement") by and between Borrower and the New York State Urban
Development Corporation ("Lender"), disbursement by Lender of Four
Hundred Thousand dollars ($400,000) of the Loan to be made to Borrower
pursuant to the Loan Agreement.
1. Attached to this Disbursement Request are documents evidencing
the amount and purpose of the disbursement
condition of the Loan Agreement;
2. All warranties and representations of Borrower set forth in the
Loan Agreement are true and correct as of the date hereof; and
3. Each invoice, xxxx of sale, receipt, check or other document or
instrument submitted in support of this Disbursement Request is
complete and genuine and accurately reflects the transaction to
which it relates.
ARTISTIC GREETINGS INCORPORATED
By:_____________________________
Name: Xxxxxx X. Xxxxxxx
Title:General Counsel
(
INTEREST RATE SUBSIDY
GRANT AGREEMENT
RELATING TO
ARTISTIC GREETINGS INCORPORATED
LAKE STREET
INDUSTRIAL PROJECT
(Project No. [ ])
(
GRANT AGREEMENT between the NEW YORK STATE URBAN DEVELOPMENT
CORPORATION ("UDC"), a corporate governmental agency of the State of New
York constituting a political subdivision and public benefit corporation,
having an office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, and
ARTISTIC GREETINGS INCORPORATED ("Grantee"), a Delaware corporation with
a principal office located at Xxx Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxx,
Xxx Xxxx 00000-0000.
1. PRELIMINARY STATEMENT
(a) The Legislature of the State of New York has appropriated certain
funds for the Strategic Resurgence Industrial Effectiveness, Expansion,
Retention and Attraction Program ("SRP").
(b) Grantee has undertaken a certain project in connection with
Grantee's purchase of land and construction of a building in the City of
Elmira, New York (as more fully described in Section 3 below, the
"Project") and seeks reimbursement of interest paid in connection with
funds borrowed for the Project and, in connection therewith, has applied
to UDC for financial assistance.
(c) On September , 1995 the Board of Directors of UDC adopted a
resolution to award a grant (the "Grant") to the Grantee of up to Five
Hundred Thousand Dollars ($500,000) in SRP funds.
(d) The Grant will effectively reimburse the Grantee for interest
paid in connection with funds borrowed for the Project.
(e) The Grantee and UDC (collectively, the "Parties") desire to set
forth the terms and conditions of the administration and disbursement of
the Grant.
2. DEFINITIONS. For the purposes of this Agreement the following terms
shall have the following meanings:
"Application" means the application of Grantee to UDC for SRP
assistance a such Application may have been amended or supplemented.
"Default"means any event which with the giving of notice or
lapse of time, or both, would become an Event of Default.
"Effective Date" shall mean the date when all of the conditions
set forth in
Section 5 hereof are satisfied.
"Event of Default" means any event upon the occurrence of which
the Lender may declare the outstanding principal amount of the Loan,
all interest thereon and other amounts payable in connection
therewith to be forthwith due and payable, or both.
"Premises" shall have the meaning assigned to such term in
Section 3 hereof.
"Prohibited Expenditures" means expenditures of Grant funds for
any of the following purposes:
(a) POLITICAL ACTIVITIES. Political activities of any kind
including, but not limited to, promoting the election or defeat
of any candidate for public, political or party office, or
furthering the passage, defeat, or repeal of any legislation.
(b) RELIGIOUS ACTIVITIES. Religious worship, instruction or
proselytizing.
(c) PAYMENTS TO RELATED PARTIES. Payments to any Related
Parties.
"Project" shall have the meaning assigned to such term in Section
3 hereof.
"Related Parties" means (a) any person who (i) directly or
indirectly controls the Grantee, or (ii) is related by blood or
marriage to any person who directly or indirectly controls the
Grantee, and (b) any partnership, corporation, trust or other entity
which directly or indirectly controls, or is controlled by, or is
under common control with the Grantee.
3. THE PROJECT. The Project consists of the purchase of land and
the refurbishment on said land of a building located on Lake Street in
the City of Elmira, New York (the "Premises") and the permanent financing
thereof.
4. DISBURSEMENT OF THE GRANT. Subject to the terms, covenants and
conditions of this Grant Agreement, UDC shall disburse the Grant to the
Grantee in a single installment as follows:
(a) The Grant shall be disbursed after receipt by UDC of a statement
signed by the General Counsel of Grantee requesting that UDC pay the
proceeds of such Grant to Grantee, at its principal office located at Xxx
Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxx 00000-0000.
(b) The disbursal of the Grant shall be made on October 24, 1995.
5. CONDITIONS PRECEDENT AND EFFECTIVE DATE. This Agreement shall
become effective when all of the following conditions precedent have been
satisfied.
(a) EXECUTED AGREEMENT. UDC has received a copy of this Agreement
executed by an authorized representative of the Grantee.
(b) OPINION OF COUNSEL. UDC has received an opinion from General
Counsel to the Grantee in substantially the form appended to this
Agreement as Exhibit A.
(c) CERTIFICATE OF APPROVAL OF AVAILABILITY OF FUNDS. A certificate
of approval of availability of funds has been issued by the Director of
the Budget of the Sate of New York, and the Grant funds have been
received by UDC.
(d) CURRENT FINANCIAL STATEMENTS. Grantee shall deliver to UDC
current financial statements for the Grantee, no older than six months
prior to date hereof.
6. WARRANTIES AND REPRESENTATIONS. The Grantee warrants and
represents to UDC as follows:
(a) FORMATION AND GOOD STANDING. It is duly formed and validly
existing as a corporation under the laws of the jurisdiction of Delaware;
and it has the corporate power and authority to own its assets and to
transact the business in which it is now engaged.
(b) ENFORCEABLE AGREEMENT. The execution, delivery and performance
of this Agreement has been authorized by all necessary corporate action
on its part and constitutes a valid and binding obligation enforceable
against it in accordance with its terms.
(c) APPLICATION. All information contained in the Application or
submitted to UDC in connection therewith is complete and correct and does
not contain any material misstatement or omission of fact which may have
been taken into consideration by UDC in its determination to make the
Grant.
(d) NO UNDUE INFLUENCE. Neither the Grantee nor any of its partners,
officers, employees or agents have given anything of value to any
director, officer, employee or agent of UDC to procure the Grant or to
influence the judgment of any such person in the exercise of its official
duties in connection with the making of the Grant or the matters
contemplated by this Agreement.
(e) NECESSARY AUTHORIZATIONS. All authorizations, consents,
approvals and licenses of all pertinent governmental authorities
necessary under applicable law or regulation for it to implement the
Project have been obtained and are in full force and effect.
(f) LOAN DOCUMENTS. The Loan Documents are in full force and effect
and remain unamended.
(g) NO DEFAULTS OR EVENTS OF DEFAULT. No Default or Event of Default
has occurred with respect to any Loan Document.
7. CERTAIN COVENANTS OF THE GRANTEE. The Grantee hereby agrees as
follows:
(a) TASKS AND INTERIM REPORTS. The Grantee will perform such tasks
and submit such interim reports regarding the Project as UDC shall
reasonably require from time to time.
(b) REPORTS. In addition to any other reports UDC may request, at
the conclusion of the Project, the Grantee will submit to UDC a final
report ("Final Report"). The Final Report shall describe the objectives
of the Project and describe the problems encountered and the results
accomplished by the Grantee in the implementation of the Project. In
addition, the Final Report shall include an accounting of costs and
expenditures incurred in connection with the Project and identify cash
and in-kind contributions made by the Grantee and all other funding
sources in support of the Project.
(c) PROHIBITED EXPENDITURES. The Grantee shall not use Grant funds
for any Prohibited Expenditures.
(d) OTHER FUNDING SOURCES. Other than financing provide for the
acquisition of the land and construction of the Project, the Grantee
shall inform UDC in writing about any financial assistance promised or
awarded to the Grantee by any source for the purposes of the Project
within sixty (60) days after having any knowledge thereof. The Grantee
shall provide UDC with a copy of the proposal and budget, if any, upon
which such financial assistance was made. The Grant funds cannot be
applied to any expenses paid or payable from any other funding source.
(e) COST OVERRUNS. The Grantee is solely responsible for funding all
Project costs in excess of the Grant amount.
(f) BOOKS AND RECORDS. The Grantee will maintain true and complete
records and books of account concerning the Project and retain such
records and books of account for a period of at least three (3) years
after the expiration of this Agreement.
(h) AUDITS. At any reasonable time and from time to time, the
Grantee shall permit UDC and its agents upon reasonable notice to conduct
a partial or complete audit of the records and books of account
maintained by the Grantee with respect to the Project including, without
limitation, any bank or other records relating to the Grant funds, and to
make copies of such records and books of account. This provision shall
survive disbursement of the Grant funds and shall remain in effect for
three (3) years after the expiration of this Agreement.
(i) INSPECTIONS. At any reasonable time and from time to time, the
Grantee shall permit UDC and its agent to visit the properties of the
Grantee and to conduct an inspection thereof to determine whether the
Grantee is in compliance with this Agreement.
(j) INDEMNIFICATION. The Grantee shall indemnify and hold harmless
UDC, the State of New York and their respective agents, officers,
employees and directors (herein collectively called the "Indemnitees")
from and against any and all damages, costs, claims, liabilities and
expenses (including, but not limited to, reasonable attorneys' fees and
disbursements), resulting from, arising out of, or occurring in
connection with, the implementation of the Project by the Grantee and the
performance by the Grantee of its obligations hereunder, except any such
costs, claims, liabilities or expenses which result from the negligence
or misconduct of UDC. The provisions of this Section shall survive the
disbursement of the Grant funds and the termination of this Agreement.
(k) AMENDMENT OF LOAN DOCUMENTS. The Grantee shall not, without the
prior written consent of UDC, amend, or consent to an amendment of, the
terms, covenants and conditions of the Loan Documents which would
conflict with the terms hereof.
(l) NOTICE OF DEFAULT. The Grantee shall notify UDC of the
occurrence of a Default or an Event of Default, promptly, after having
knowledge thereof.
(m) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in any
event within one hundred twenty (120) days after the end of each fiscal
year of Grantee, Grantee shall deliver or cause to be delivered financial
statements of the Grantee, reasonably detailed and stating in comparative
form the respective figures for the corresponding date and period in the
prior fiscal year and prepare din accordance with generally accepted
accounting principles in the United States of America (in effect as of
the date hereof) and reviewed by a certified public accountant and
certified by an authorized representative of the Grantee.
8. RELATIONSHIP. The Grantee shall be an independent contractor at
all times during the term of this Agreement and, neither the Grantee nor
any of its employees, agents or representatives hall be deemed to be an
employee, agent, or representative of either UDC or the State of New York
for any purpose, or be eligible to participate in any benefits or
privileges given or extended by either UDC or the State of New York to
its employees. Nothing in this Agreement shall constitute the Grantee as
UDC's agent for any purpose and the Grantee shall have no power to act
for or bind either UDC or the State of New York. Nothing in this
Agreement shall be construed as creating a partnership or joint venture
between the parties.
9. CANCELLATION OF GRANT. Upon the occurrence of any of the
following events, UDC may, in its sole discretion, cancel the Grant.
(a) EVENTS OF DEFAULT. If an Event of Default shall occur under any
Loan Document.
(b) AMENDMENTS OF LOAN DOCUMENT. If any of the terms of payment of
the loan shall be amended so as to conflict with the terms hereof without
the prior written consent of UDC.
(c) FAILURE TO PERFORM BY GRANTEE. If the Grantee fails to perform
any of its obligations hereunder within ninety (90) days after notice by
UDC to Grantee of such failure.
(d) FAILURE TO COMPLETE PROJECT. If Grantee abandons the Project or
fails to undertake the Project to completion.
(e) FALSE REPRESENTATIONS AND WARRANTIES. If any representation or
warranty made by the Grantee in this Agreement or in the Application
shall prove to have been incorrect or untrue in any material respect as
of the date when made or deemed made.
(f) UNDUE DELAYS. If the Grantee fails to satisfy the conditions
precedent to the effectiveness of this Agreement set forth in Section 6,
above, within a reasonable time, or fails to complete the Project within
2 years after the disbursement of Grant funds.
(g) REIMBURSEMENT OF IMPROPER DISBURSAL. If UDC determines that any
Grant funds have been disbursed in violation of the terms of this
Agreement, or based upon a false representation or warranty (hereinafter
an "Improper Disbursal"), UDC may require, in its sole discretion, that
the party responsible for such Improper Disbursal reimburse UDC in an
amount equal to the Grant funds improperly disbursed. In such event, the
Grantee or the Bank, as the case may be, shall reimburse UDC for all
Improper Disbursal of Grant funds for which it may be responsible upon
demand therefor by UDC.
(h) CUMULATIVE REMEDIES. The remedies provided to UDC herein are
cumulative and not exclusive of any other remedies available to UDC at
law, equity or otherwise.
10. MISCELLANEOUS.
(a) NOTICES. Each notice, demand, request or other communication
required or otherwise permitted hereunder shall be in writing and shall
be effective upon receipt if personally delivered or sent by any
overnight service or 3 days after dispatch by certified mail, return
receipt requested, to the addresses set forth below:
(i)to the Grantee:
(
(Artistic Greetings Incorporated
(One Xxxxx Xxxxxx, X.X. Xxx 0000
(Xxxxxx, Xxx Xxxx 00000-0000
(Attention: Xxxxxx X. Xxxxxxx, General Counsel
(
(ii)to UDC:
(
(New York State Urban Development Corporation
(Broadway
(New York, New York 10036-8960
(Attention: Xxx Xxxx, Executive Vice President
All other communications, including any reports required by of this
Agreement, to UDC at the address in the preceding paragraph, to the
Attention of the Director of Project Administration, or to such other
address as UDC may designate in writing.
(b) AMENDMENTS AND WAIVERS. No amendment or waiver of any provision
of this Agreement nor consent to any departure by either Grantee or any
Lender therefrom shall in any event be effective unless the same shall be
in writing and signed by an authorized representative of UDC, and then
such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the part of
UDC to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof or preclude any other or further exercise
thereof or the exercise of any other right.
(c) CAPTIONS. The captions and headings hereunder are for
convenience only and shall not affect the interpretation or construction
of this Agreement.
(d) SEVERABILITY. The provisions of this Agreement are intended to
be severable. If for any reason any provision of this Agreement shall be
held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one and the same
instrument, and any party hereto may execute this Agreement by executing
any such counterpart.
(f) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York.
NEW YORK STATE URBAN
DEVELOPMENT CORPORATION
By:_____________________________
Name: Xxx Xxxx
Title: Executive Vice President
ARTISTIC GREETINGS INCORPORATED
By:____________________________
Name: Xxxxxx X. Xxxxxxx
Title: General Counsel
_________________________________________________________________________
DIRECT
MORTGAGE
Dated as of November 6, 1995
In the Amount of
$400,000.
By
ARTISTIC GREETINGS, INC.
Xxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
to
NEW YORK STATE URBAN DEVELOPMENT CORPORATION
D/B/A EMPIRE STATE DEVELOPMENT CORP.
having an office at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Location of Premises
Street Address: 0000 Xxxx Xxxxxx
City : Elmira
County : Chemung
State : New York
Section : 79.15
Block : 2
Lot : 1.2
TABLE OF CONTENTS
ARTICLE 1 CERTAIN REPRESENTATIONS AND WARRANTIES.
Section 1.01 Legally Enforceable Agreements
Section 1.02 Warranty of Title
Section 1.03 Ownership and Liens
Section 1.04 Creation of Lien
Section 1.05 Taxes
Section 1.06 Use of the Collateral
Section 1.07 No Authorization Required
ARTICLE 2 CERTAIN COVENANTS.
Section 2.01 Insurance
Section 2.02 Taxes and Other Charges
Section 2.03 Maintenance of the Premises
Section 2.04 Use of Premises
Section 2.05 Estoppel Certificate
Section 2.06 Subordination of Leases
Section 2.07 Restrictions Against Sale,
Conveyance, Etc.
Section 2.08 Lien Law
Section 2.09 Further Agreements
ARTICLE 3 EMINENT DOMAIN
Section 3.01 Assignment of Condemnation Proceeds
Section 3.02 Application of Condemnation Proceeds
ARTICLE 4 HAZARDOUS SUBSTANCES
Section 4.01 Representation and Warranties
Section 4.02 Covenants
Section 4.03 Environmental Audits
ARTICLE 5 EVENTS OF DEFAULT
Section 5.01 Remedies Upon Default
Section 5.02 Cumulative Remedies
Section 5.03 Receiver
Section 5.04 Single Parcel
Section 5.05 Multiple Actions
Section 5.06 Waiver of Exemptions, Marshalling,
Etc.
ARTICLE 6 REAL COVENANTS
ARTICLE 7 MISCELLANEOUS
Section 7.01 Waiver and Amendment
Section 7.02 Expenses
Section 7.03 Joint and Several Obligations
Section 7.04 Notices
Section 7.05 Captions
Section 7.06 Severability
Section 7.07 Governing Law
Section 7.08 Trial by Jury; Counterclaims
Section 7.09 Immunities
Section 7.10 Successors and Assigns, Transfer
of Rights
SCHEDULE A DESCRIPTION OF THE PREMISES
MORTGAGE, made as of the 6th day of November, 1995, by Artistic
Greetings, Inc., a corporation duly organized and existing under the laws
of Delaware, having its principal office and place of business at Xxx Xxxxx
Xxxxxx, Xxxxxx, Xxx Xxxx, 00000 to New York State Urban Development
Corporation d/b/a Empire State Development Corp., 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
PRELIMINARY STATEMENT.
1. The Mortgagee has entered into a Loan Agreement dated October 24,
1995 (the Loan Agreement, as it may hereafter be amended from time to time,
being the "Loan Agreement") with the Mortgagor providing for the making of
a loan in the principal amount of $400,000 (the "Loan") (the Loan
Agreement, and each and every document executed and delivered in connection
with the Loan shall hereinafter be referred to collectively, as the "Loan
Documents").
2. It is a condition precedent to the making of the Loan by the
Mortgagee that the Mortgagor execute and deliver this Mortgage as security
for its obligations to the Mortgagee arising out of or in connection with
the Loan Documents (such obligations as the same may be amended, modified
or extended are hereinafter referred to as the "Obligations"). Defined
terms utilized and not otherwise defined herein shall have the meaning
assigned to such terms in the Loan Agreement.
WITNESSETH, that to secure the payment of the Obligations to the
Mortgagee, the Mortgagor hereby mortgages to the Mortgagee and grants to
the Mortgagee a security interest in:
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected or to be erected situate, lying and being in
the County of Chemung, State of New York, more particularly bounded and
described in Schedule A (the "Premises") hereto annexed and all materials
intended for construction, reconstruction, alteration and repair of such
buildings and improvements now or hereafter delivered to the Premises, all
of which materials shall be deemed to be included in and as part of the
Premises upon the delivery thereof to the Premises;
TOGETHER with all right, title and interest, if any, of the Mortgagor
of, in and to the land lying in the streets, roads or avenues, open or
proposed, in front of or adjoining the Premises and of, in and to any
strips or gores of land adjoining the Premises and all easements and
appurtenances thereto;
TOGETHER, ALSO, with (a) all unearned premiums, accrued, accruing or
to accrue under any insurance policies now or hereafter obtained by the
Mortgagor and the Mortgagor's interest in and to all proceeds which now or
hereafter may be paid in connection with the conversion of the Premises or
any portion thereof into cash or liquidated claims, together with the
interest payable thereon and the right to collect and receive the same,
including, but without limiting the generality of the foregoing, proceeds
of casualty
insurance, title insurance and any other insurance now or hereafter
maintained with respect to the Premises or in connection with the use or
operation thereof and (b) all awards, payments and/or other compensation,
together with the interest payable thereon and the right to collect and
receive the same which now or hereafter may be made with respect to the
Premises as a result of (i) a taking by eminent domain, condemnation or
other governmental action or purchase in lieu thereof including, without
limitation, the change of grade of any street, road or avenue or the
widening of any streets, roads or avenues adjoining or abutting the
Premises (hereinafter, "Condemnation Proceeds"), or (ii) any other injury
to, or decrease in value of, the Premises or any portion thereof, in any of
the foregoing circumstances described in clause (a) or (b) above, to the
extent of the entire amount of the Obligations outstanding as of the date
of receipt by the Mortgagee of any such insurance proceeds or awards,
notwithstanding that the entire amount of the Obligations may not then be
due and payable, and also to the extent of reasonable attorneys' fees,
costs and disbursements incurred by the Mortgagee in connection with the
collection of any such insurance proceeds or awards; and the Mortgagor
hereby assigns to the Mortgagee, and the Mortgagee is hereby authorized to
collect and receive, all insurance proceeds and awards and to give proper
receipts and acquittances therefor and to apply the same toward the
outstanding amount of the Obligations notwithstanding that the entire
amount of the Obligations may not then be due and payable, and also to the
extent of reasonable attorneys' fees, costs and
disbursements incurred by the Mortgagee in connection with the collection
of any such insurance proceeds or awards; and the Mortgagor hereby agrees
to make, execute and deliver, from time to time, upon demand, such further
documents, instruments, or assurances as may be requested by the Mortgagee
to confirm the assignment of the insurance proceeds and the awards to the
Mortgagee, free and clear of any interest of the Mortgagor whatsoever
therein and free and clear of any other liens, claims or encumbrances of
any kind or nature whatsoever;
TO HAVE AND TO HOLD the Premises and other property, privileges,
rights, interests and franchises hereby granted or mortgaged, or intended
so to be, unto the Mortgagee, their successors and assigns forever;
AND the Mortgagor represents, covenants, and agrees with the Mortgagee
as follows:
ARTICLE 1. CERTAIN REPRESENTATIONS AND WARRANTIES
For so long as any of the Obligations shall remain outstanding, the
Mortgagor hereby represents and warrants to the Mortgagee, as follows:
SECTION 1.01. LEGALLY ENFORCEABLE AGREEMENTS. This Mortgage is, or
when delivered will be a legal, valid and binding obligation of the
Mortgagor enforceable against the Mortgagor in accordance with its terms,
except to the extent that such enforcement may be limited by bankruptcy,
insolvency and other similar laws affecting creditor's rights generally.
SECTION 1.02. WARRANTY OF TITLE. The Mortgagor has good and
marketable title to the Premises and the Building Equipment.SECTION 1.03.
OWNERSHIP AND LIENS. The Mortgagor owns the Premises free and clear of all
known security interests encumbrances and Liens, except for the Lien
created by this Mortgage.
SECTION 1.04. CREATION OF LIEN. This Mortgage creates a valid first
priority Lien on the Premises securing the payment of the Obligations and
all actions necessary or desirable to protect such Lien have been duly
taken.
SECTION 1.05. TAXES. The Mortgagor has filed all tax (federal, state
and local) returns required to be filed and has paid all taxes, assessments
and governmental charges and levies thereon to be due, including interest
and penalties except those taxes being contested in good faith. The
Mortgagor has no knowledge of any claims for taxes due and unpaid which
might become a Lien upon the Premises or the Building Equipment.
SECTION 1.06. USE OF THE COLLATERAL. The Premises will not be used
for personal, family, household or farming use.
SECTION 1.07. NO AUTHORIZATION REQUIRED. No authorization, approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required either for (a) the grant by the
Mortgagor of the Lien granted hereby or the execution, delivery or
performance of this Mortgage by the Mortgagor or (b) the exercise by the
Mortgagee of its rights and remedies hereunder.
ARTICLE 2. CERTAIN COVENANTS.
For so long as any of the Obligations shall remain outstanding, the
Mortgagor agrees as follows:
SECTION 2.01. INSURANCE.
(a) The Mortgagor shall keep the buildings on the Premises insured
against: (i) loss of fire, (ii) additional perils customarily covered under
an all-risk policy and (iii) flood hazard, if the Premises are located in
an area identified by the Secretary of Housing and Urban Development as an
area having special flood hazards and in which flood insurance has been
made available under the National Flood Insurance Act of 1968, as amended.
The insurance required in this paragraph (a) shall provide coverage for an
amount not less than the full replacement value of the buildings on the
Premises or such other amount as the Mortgagee may reasonably require,
provided that (i) the amount of insurance coverage shall be in an amount
sufficient to satisfy, at all times, any co-insurance requirements, and
(ii) the amount of any flood hazard insurance shall not exceed the maximum
amount of coverage available under the National Flood Insurance Act.
(b) The premises are presently insured by Royal Insurance and if this
policy is replaced it shall be by a policy issued by a comparable company
pursuant to a policy satisfactory to Mortgagee in form and substance.
Without limiting the generality of the foregoing, the policies of insurance
required hereby shall provide for ten (10) days' prior written notice of
cancellation and shall be payable to the Mortgagee pursuant to a New York
standard mortgagee endorsement.
(c) The Mortgagor shall give prompt written notice to the Mortgagee
in the event of damage to the Premises by reason of fire or other hazard or
casualty.
(d) Notwithstanding the provisions of Subdivision 4 of Section 254 of
the Real Property Law, the Mortgagee shall be entitled to retain and apply
the proceeds of any insurance required hereby to the payment of the
Obligations or, in the sole discretion of the Mortgagee, apply any or all
such proceeds to the cost of restoration of the Premises, in which case the
Mortgagor shall proceed with reasonable diligence to repair, replace or
rebuild the Premises to substantially their condition prior to such damage
in full compliance with all legal requirements.
(e) The Mortgagor shall provide the Mortgagee with copies of all
policies of insurance (or certificates thereof) for the required insurance
coverages in form and substance satisfactory to the Mortgagee. In
addition, the Mortgagor shall provide the Mortgagee with copies of renewal
policies (or certificates thereof) or temporary binders in the event
renewal policies have not been issued, in a timely manner. The Mortgagor
must, in any event, provide Mortgagee with satisfactory confirmation of
renewal coverage by the renewal date.
(f) In the event that the Mortgagor fails to maintain the insurance
required hereby, the Mortgagee may obtain such insurance and pay the
premiums therefor and the Mortgagor shall, on demand, reimburse the
Mortgagee for any insurance premiums paid, together with interest thereon
computed at the highest rate per annum
allowable under New York State law. The obligations of the Mortgagor to
reimburse the Mortgagee pursuant to this paragraph (g) shall be secured by
this Mortgage.
(g) The Mortgagor will not take any action, or permit any condition
to exist, with respect to the Premises which may, in any manner, partially
or wholly invalidate the insurance on the Premises required hereby.
SECTION 2.02. TAXES AND OTHER CHARGES. The Mortgagor shall pay all
taxes, assessments, water rates, sewer rents and other charges now or
hereafter levied against the Premises or any part thereof and also any and
all license fees or similar charges which might be imposed by any
municipality in which the Premises are situated for the use of vaults,
chutes, areas and other space beyond the lot line and on or abutting the
public sidewalks in front of or adjoining the Premises, together with any
penalties or interest on any of the foregoing. The Mortgagee may, but
shall not be obligated to, pay any such taxes, assessments, water rates,
sewer rents, license fees or similar charges in the event that the
Mortgagor shall default in the payment thereof, and the Mortgagor shall, on
demand, reimburse the Mortgagee for all amounts so paid together with
interest thereon computed at the highest rate per annum allowable under New
York State law, and such amounts shall be secured by this Mortgage. Upon
request of the Mortgagee, the Mortgagor will furnish to the Mortgagee
receipts for the payment of all items specified in this Section prior to
the date when the same become delinquent.
SECTION 2.03. MAINTENANCE OF THE PREMISES.
(a) The Mortgagor shall maintain the Premises in good condition
and repair, and not commit or suffer any waste thereof or the conduct of
any nuisance or unlawful occupation or business on, or use of, the
Premises, and to comply with, or cause to be complied with, all statutes,
ordinances and requirements of any governmental authority relating to the
Premises.
(b) The Mortgagor shall promptly repair, restore, replace or
rebuild any part of the Premises now or hereafter subject to the Lien of
this Mortgage which may be substantially damaged or destroyed by any
casualty whatsoever or which may be materially affected by any proceeding
of the character referred herein; and the Mortgagor will not initiate, join
in, or consent to any change in any private restrictions, limiting or
defining the uses which may be made of the Premises or any part thereof.
(c) The Mortgagor shall not remove, demolish or materially alter
any building or other property now or hereafter covered by the Lien of this
Mortgage, or permit any such building or other property to be removed,
demolished or materially altered, without the prior written consent of the
Mortgagee.
SECTION 2.04. USE OF PREMISES. Except as approved by the Mortgagee,
which approval shall not be unreasonably withheld, the Mortgagor shall not
permit the Premises to be used for any purpose other than the operation of
the Mortgagor's business, as it is presently conducted.
SECTION 2.05. ESTOPPEL CERTIFICATE. Within ten (10) business days
after a request therefor, the Mortgagor shall furnish a written statement
duly acknowledged of the amount due on this Mortgage and whether any
offsets or defenses exist against the Obligations.
SECTION 2.06. SUBORDINATION OF LEASES. The Mortgagor shall cause all
present and future leases affecting the Premises to be subject and
subordinate to this Mortgage.
SECTION 2.07. RESTRICTIONS AGAINST SALE, CONVEYANCE, ETC. The
Mortgagor shall not sell, convey, transfer, lease, further encumber or
otherwise dispose of the Premises or any part thereof or any interest
therein without the prior written approval of the Mortgagee, which approval
shall not be unreasonably withheld. The lease of the premises to the
Chemung County Industrial Development Agency is specifically excluded from
this provision.
SECTION 2.08. LIEN LAW. In compliance with Section 13 of the Lien
Law, the Mortgagor shall receive the advances secured hereby and hold such
advances as a trust fund to be applied first for the purpose of paying the
cost of improvement and before using any part of the total of the same for
any other purpose.
SECTION 2.09. FURTHER AGREEMENTS. The Mortgagor shall undertake all
such further acts and execute, acknowledge and deliver, at its sole cost
and expense, all such further acts, deeds, conveyances, mortgages,
assignments, estoppel certificates, notices of assignment, transfers and
assurances as the Mortgagee may reasonably require from time to time in
order to confirm,
convey, grant, transfer and assign, confirm unto the Mortgagee, the rights
now or hereafter intended to be granted to the Mortgagor under this
Mortgage.
ARTICLE 3. EMINENT DOMAIN.
SECTION 3.01. ASSIGNMENT OF CONDEMNATION PROCEEDS. All Condemnation
Proceeds are hereby assigned to and shall be paid to the Mortgagee. The
Mortgagor hereby authorizes the Mortgagee to collect and receive such
Condemnation Proceeds to give proper receipts and acquittances therefor and
to apply the same toward the payment of the Obligations notwithstanding the
fact that all of the Obligations may not then be due and payable. Upon
request by the Mortgagee, the Mortgagor shall make, execute and deliver any
and all assignments and other instruments necessary or appropriate, in the
reasonable discretion of the Mortgagee, in order to effect the pledge,
transfer and assignment to the Mortgagee of the aforesaid Condemnation
Proceeds free and clear of any Liens, charges or encumbrances of any kind
or nature whatsoever. The Mortgagor shall continue to pay interest on the
entire principal amount or any of the Obligations, until the Condemnation
Proceeds for such taking or other action shall have been actually received
by the Mortgagee.
SECTION 3.02. APPLICATION OF CONDEMNATION PROCEEDS. The Condemnation
Proceeds assigned hereby may be applied by the Mortgagee in such
proportions and priority as the Mortgagee, in its sole discretion, may
elect, to the payment of principal, interest or other sums, secured by this
Mortgage and/or to the payment to
the Mortgagor, on such terms as the Mortgagee may specify, for the sole
purpose of altering, restoring or rebuilding any part of the Premises which
may have been altered, damaged or destroyed as a result of any such taking
or other action. If, prior to the receipt by the Mortgagee of any
Condemnation Proceeds the Premises shall have been sold on foreclosure of
this Mortgage, the Mortgagee shall have the right to receive and apply said
Condemnation Proceeds to the extent of any deficiency found to be due upon
such sale, with legal interest thereon, whether or not a deficiency
judgment on this Mortgage shall have been sought or recovered or denied,
together with reasonable counsel fees and the costs and disbursements
incurred by the Mortgagee in connection with the collection of said
Condemnation Proceeds.
ARTICLE 4. HAZARDOUS SUBSTANCES.
SECTION 4.01. REPRESENTATION AND WARRANTIES. The Mortgagor hereby
warrants and represents that there are no known Hazardous Substances (as
hereinafter defined) at or affecting the Premises in any manner which
violates Federal, State or local laws, ordinances, rules or regulations
governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of Hazardous Substances.
SECTION 4.02. COVENANTS. For so long as any of the Obligations shall
remain unpaid, the Mortgagor agrees as follows:
(a) the Mortgagor shall keep or cause the Premises to be kept
free of Hazardous Substances and not cause or permit the
Premises to be used to generate, manufacture, refine, transport, treat,
store, handle, dispose, produce or process Hazardous Substances, except in
compliance with all applicable Federal, State and local laws, ordinances,
rules or regulations.
(b) the Mortgagor shall require compliance by all operators and
occupants of the Premises with all applicable Federal, State and local
laws, ordinances, rules and regulations by ensuring that all such operators
and occupants obtain and comply with any and all required approvals,
registrations or permits.
For the purposes of this Article 6, "Hazardous Substance" shall mean
any and all substances and/or conditions, on or affecting the Premises,
which are now deemed to be hazardous substances, or that may present an
unreasonable risk to health or the environment, as determined pursuant to
any Federal, State or local laws, ordinance, rule or regulation governing
the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous substances including but not
limited to solid wastes, toxic materials and asbestos.
ARTICLE 5. REMEDIES.
SECTION 5.01. REMEDIES UPON DEFAULT. Upon the occurrence of any
Event of Default under the Loan Agreement, the Mortgagee may, in addition
to any rights or remedies available to it under the other Loan Documents,
at law or at equity, take such action as it
deems advisable to protect and enforce its rights against the Mortgagor and
in and to the Premises including, but not limited to, the following
actions, each of which may be pursued concurrently or otherwise, at such
time and in such sequence as the Mortgagee may determine, in its sole
discretion, without impairing or otherwise affecting any other rights or
remedies of the Mortgagee: (a) apply for the appointment of a custodian,
trustee, receiver, liquidator or conservator of the Premises, without
regard for the adequacy of the security for the indebtedness and without
regard for the solvency of the Mortgagor, or any Third Party; (b) institute
an action, suit or proceeding in equity for the specific performance of any
covenants, conditions or agreements contained herein or in the Obligations;
(c) institute proceedings for the foreclosure of this Mortgage, in which
case the Premises may be sold in one or more parcels; (d) enter upon the
Premises and dispossess the Mortgagor and its agents and servants
therefrom; or (e) pursue such other remedies as the Mortgagee may have at
equity, at law under this Mortgage of under any of the Loan Documents.
SECTION 5.02. CUMULATIVE REMEDIES. The rights of the Mortgagee under
this Mortgage and the other Loan Documents shall be separate, distinct and
cumulative and none of them shall be to the exclusion of the others or of
other rights conferred by law; and no act of the Mortgagee shall be
construed as an election to proceed under any one provision herein as an
election to proceed under any one provision herein to the exclusion of any
other provision, anything herein or otherwise to the contrary
notwithstanding.
SECTION 5.03. RECEIVER. The holder of this Mortgage, in any action
to foreclose it, shall be entitled to the appointment of a receiver,
without notice and without regard to the adequacy of any
security for the Obligations secured hereby and any such receiver shall
have the right, INTER ALIA, to enter upon the Premises.
SECTION 5.04. SINGLE PARCEL. In case of a foreclosure sale, the
Premises, or so much thereof as may be affected by this Mortgage, may be
sold in one parcel and as an entirely or in such parcels, manner or order
as the Mortgage, in its sole discretion may elect.
SECTION 5.05. MULTIPLE ACTIONS. To the extent permitted by law, the
Mortgagee shall have the right from time to time to xxx for any sums,
whether interest, damages for failure to pay principal or any installment
thereof, taxes, installments of principal, or any other sums required to be
paid under the terms of the Obligations or this Mortgage as the same become
due, without regard to whether or not the principal sum of the Obligations
or any other sums secured by this Mortgage shall be due and without
prejudice to the right of the Mortgagee thereafter to bring an action to
foreclosure, or any other action, for a default or defaults by the
Mortgagor existing at the time such earlier action was commenced.
SECTION 5.06. WAIVER OF EXEMPTIONS, MARSHALLING, ETC. The Mortgagor
will not at any time insist upon, or plead, or in any manner whatever claim
or take any benefit or advantage of any stay or extension or moratorium
law, any exemption from execution or sale of the Premises or any part
thereof, wherever enacted, now or at any time hereafter in force, which may
affect the covenants and terms of performance of this Mortgage, nor claim,
take or insist
upon any benefit or advantage of any law now or hereafter in force
providing for the valuation or appraisal of the Premises, or any part
thereof, prior to any sale or sales thereof which may be made pursuant to
any provision herein, or pursuant to the decree, judgment or order of any
court of competent jurisdiction; nor, after any such sale or sales, claim
or exercise any right under any statute heretofore or hereafter enacted to
redeem the property so sold or any part thereof and the Mortgagor hereby
expressly waives all benefit or advantage of any such law or laws and
covenant not to hinder, delay or impede the execution of any power herein
granted or delegated to the Mortgagee, but to suffer and permit the
execution of every power as though no such law or laws have been made or
enacted. The Mortgagor for itself and all who may claim under it, waive,
to the extent that they lawfully may claim under it, waive, to the extent
that they lawfully may, all right to have the Premises marshaled upon any
foreclosure hereof and further waive and release all technical procedural
errors, defects, and imperfections in any proceeding instituted by the
Mortgagee hereunder.
ARTICLE 6. REAL COVENANTS.
The terms, covenants and conditions of this Mortgage shall
run with the land, shall constitute real covenants and be binding upon the
Mortgagor, its successors and assigns, and all subsequently mortgagees,
tenants and subtenants of the Premises and shall inure to the benefit of
the Mortgagee, subsequent holders of this Mortgage and their respective
successors and assigns.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.01. WAIVER AND AMENDMENT. No amendment or waiver of any
provision of this Mortgage nor consent to any departure by the Mortgagor
therefrom shall in any event be effective unless the same shall be in
writing and signed by an authorized officer of the Mortgagee, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No failure on the part of the
Mortgagee to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof or preclude any other or further exercise
thereof or the exercise of any other right.
SECTION 7.02. EXPENSES. The Mortgagor shall reimburse the Mortgagee
on demand for all reasonable costs, expenses, and charges incurred by the
Mortgagee in connection with the performance, or enforcement of this
Mortgage.
SECTION 7.03. JOINT AND SEVERAL OBLIGATIONS. As used herein the term
Mortgagor shall include all signatories hereto, if more than one. In such
event, the obligations, representations and warranties of the Mortgagor
hereunder shall be joint and several.
SECTION 7.04. NOTICES. Unless the party to be notified otherwise
notifies the other party in writing as provided in this Section, and except
as otherwise provided in this Mortgage, notices shall be given to the
Mortgagee and to the Mortgagor by hand or by certified mail, return receipt
requested, addressed to such party at its address set forth below. Notices
shall be effective: (a) if given by certified mail, 72 hours after deposit
in the mails with
first class postage prepaid, addressed as aforesaid; and (b) if given by
hand, upon receipt, provided that notices to the Mortgagee shall be
effective only upon receipt;
Address for notices to the Mortgagee
New York State Urban Development Corporation
d/b/a Empire State Development Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President and
General Counsel
Address for notices to the Mortgagor
Artistic Greetings, Inc.
One Xxxxx Xxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxx Xxxx 00000-0000
Attention: Xxx Xxxxxxx
SECTION 7.05. CAPTIONS. The captions and headings hereunder are for
convenience only and shall not affect the interpretation or construction of
this Mortgage.
SECTION 7.06. SEVERABILITY. The provisions of this Mortgage are
intended to be severable. If for any reason any provision of this Mortgage
shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction
or the remaining provisions hereof in any jurisdiction.
SECTION 7.07. GOVERNING LAW. This Mortgage shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New
York.
SECTION 7.08. TRIAL BY JURY; COUNTERCLAIMS.
(a) WAIVER OF TRIAL BY JURY. The Mortgagor hereby waives all
rights to trial by jury in any action, proceeding, claim or counterclaim
arising out of this Mortgage.
(b) COUNTERCLAIMS, ETC. Anything contained in this Mortgage to
the contrary notwithstanding, the Mortgagor does hereby waives any
counterclaim, defense,set-off or right of recoupment in any action or
proceeding to foreclose this Mortgage or to recover payment of any amount
payable to the Mortgagee under this Mortgage, the Obligations or any of the
Loan Documents.
SECTION 7.09. IMMUNITIES. To the extent that the Mortgagor has or
hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, the Mortgagor hereby irrevocably waives
such immunity with respect to its obligations under this Mortgage.
SECTION 7.10. SUCCESSORS AND ASSIGNS; TRANSFER OF RIGHTS. This
Mortgage shall be binding upon the Mortgagor and any of its successors,
assigns and transfers as may be permitted by the Mortgagee and shall inure
to the benefit of the Mortgagee, its successors and assigns. None of the
rights or obligations of the Mortgagor hereunder may be assigned or
otherwise transferred without the prior written consent of the Mortgagee.
The Mortgagee may assign all or any part of the Obligations to a bank or
other entity, in which event, upon notice by the Mortgagee to the
Mortgagor, the assignee shall have, to the extent of such assignment
(unless otherwise provided herein), the same rights and benefits with
respect to the Premises and the Building Equipment as it would have if it
were the Mortgagee hereunder. The Mortgagee may furnish any information in
the possession of the Mortgagee concerning the Mortgagor, the Premises or
the Building Equipment to any assignee or prospective assignees.
IN WITNESS WHEREOF, this Mortgage has been duly executed as of the day
and year first above written.
ARTISTIC GREETINGS, INC.
By:/s/ Xxxxxx X. Xxxxxxx
Title: General Counsel
STATE OF NEW YORK )
) SS:
COUNTY OF CHEMUNG )
On the 5th day of November, 1995, before me personally came XXXXXX
X. XXXXXXX, to me known, who, being by me duly sworn, did depose and say that
he resides at Elmira, New York; that he is the General Counsel of Artistic
Greetings, Inc., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the
directions of said corporation.
______________________________
NOTARY PUBLIC
