[EXHIBIT 10.23]
RESTATED MORTGAGE NOTE
$575,000.00 Rochester, New York
FOR VALUE RECEIVED, the undersigned, THE ESTATE OF XXXX
X. XXXXXXX, with an office c/x Xxxxxxx Realty, Inc., with an
office at 000 Xxxxxx Xxxx Xxxxx, Xxxxx X, Xxxxxxxxx, Xxx Xxxx
00000 (hereinafter called "Borrower"), promises to pay FIRST
NATIONAL BANK OF ROCHESTER, a national banking association, or
order, (hereinafter called "Lender") at its principal office at
00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, or at such other place as
may be designated in writing by the holder of this Restated
Mortgage Note ("Mortgage Note" or "Note"), the sum of FIVE
HUNDRED SEVENTY-FIVE THOUSAND and 00/100 DOLLARS ($575,000.00),
in lawful money of the United States, or so much as may be
advanced, referred to as "principal sum", with interest thereon
to be computed from the date hereof, or of each advance, at the
rate of eight and three quarters percent (8.75%) per annum.
Interest only on the unpaid principal sum, from the date of
this Note to December 31, 1996 shall be due and payable the
date of this Note.
Commencing on the first day of February 1997, installments
of principal and interest shall be paid in the sum of
$5,746.83 based upon an amortization period of fifteen (15)
years, and a like amount on the first day of each and every
month thereafter until the principal sum and interest are
fully paid; said monthly payments to be applied first to the
payment of accrued interest at the above rate and the
balance to be applied to the reduction of the principal sum.
The entire principal sum evidenced hereby, if not sooner
paid, shall be due and payable on January 1, 2002.
The rate of interest set forth herein shall continue in
effect until all sums owed Lender are paid in full.
The rate of interest shall not exceed that permitted by
applicable Federal and New York State law.
Interest shall be computed for the actual number of days
elapsed on the basis of a year consisting of 360 days.
If for any reason whatsoever this Note is prepaid in part or
in full within one (1) year from the date hereof, a prepayment
fee of five percent (5.0%) of the original amount of the
principal sum will be charged. Beginning with the second loan
year, the prepayment fee shall be reduced by one percent (1.0%)
each year. A loan year begins on the date this Mortgage Note is
executed and on each anniversary thereof.
In the event any payment due hereunder shall remain unpaid
for more than ten days, the holder hereof may collect a late
charge in the amount of $50.00 or 6.0% of said payment, whichever
is greater, to cover its extra handling expense.
If this Note is referred to attorneys for collection, all
parties now or hereafter personally liable for the indebtedness
hereby evidenced, jointly and severally agree to pay, the
principal and interest due, all costs and expenses, including
reasonable attorneys' fees, incurred by the holder hereof, with
or without the institution of an action or proceeding.
The rate of interest hereunder shall increase to three
percent (3.0%) above the rate of interest then applicable to this
Note upon the maturity date of this Note or upon an event of
default under this Note or the Mortgage securing the Note.
This Note is secured by a Mortgage and Consolidation
Agreement ("Mortgage") of even date herewith on property known as
0000 Xxxx Xxxxxx xxx 0-0 Xxxxxxxx Xxxxx, Xxxx xx Xxxxxxxxx,
Xxxxxx Xxxxxx, Xxx Xxxx ("Property").
In the event the Debt Service Coverage Ratio ("DSCR"), as
defined below, for the Property at any time is less than 1.0
("Minimum DSCR"), as reasonably determined by the Lender, the
Lender may, by written notice to Mortgagor, require a payment
toward principal within thirty (30) days of such notice so as to
achieve the Minimum DSCR, with failure to make such principal
payment to bring a default under the Mortgage. In such event,
the applicable prepayment fee shall not be collected by Xxxxxx,
and the monthly payment of principal and interest shall be
recalculated based upon the reduced principal sum and the
remaining amortization period. DSCR shall mean Net Income (as
defined below) divided by annual payments of principal and
interest pursuant to this Note. Net Operating Income shall mean
annual rental income available after payment of annual real
estate taxes, utilities, management fees, repairs, maintenance,
property insurance, reasonable salaries, reasonable
administrative expenses, and other normal operating expenses,
exclusive of depreciation amortization and interest expense.
This Note is being delivered solely for the purpose of
modifying, amending and restating the terms of the notes which
are secured by the Mortgage. This Note does not create a new or
additional indebtedness or obligation other than the principal
indebtedness or obligation secured by or which under any
contingency may be secured by the Mortgage.
It is hereby expressly agreed, that the principal sum
secured by this Note shall become due at the option of the holder
thereof on the happening of any default or event by which under
the terms of the Mortgage, the principal sum may or shall become
due and payable; also, that all of the covenants, conditions and
agreements contained in the Mortgage are hereby made part of this
instrument.
Presentment for payment, notice of dishonor, protest and
notice of protest are hereby waived.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
In the event any one or more of the provisions of the Note
shall for any reason be invalid, illegal or unenforceable in
whole or in part, then only such provision or provisions shall be
deemed to be null and void and of no force or effect, but shall
not affect any other provision of the Note.
This Note may not be changed or terminated orally.
Signed and sealed as of the 3rd day of December, 1996.
ESTATE OF XXXX X. XXXXXXX
By:s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Executrix
STATE OF NEW JERSEY)
COUNTY OF MONMOUTH ) SS:
On this 27th day of November, 1996, before me, the
subscriber, personally appeared XXXXXX XXXXXX, Executrix of the
Last Will and Testament of XXXX X. XXXXXXX, to me personally
known and known to me to be the same person described in and who
executed the within Instrument, and she acknowledged to me that
she executed the same as such Executrix.
s/Xxxxxxx X. Xxxxxxxx
Notary Public
Notary Public State of New Jersey
Qualified in Ocean County
Commission Expires October 28, 1999
MORTGAGE
WITH CONSOLIDATION AGREEMENT
This Mortgage, made as of the 3rd day of December, 1996
between THE ESTATE OF XXXX X. XXXXXXX, with an office c/x Xxxxxxx
Realty, Inc., 000 Xxxxxx Xxxx Xxxxx, Xxxxx X, Xxxxxxxxx, Xxx Xxxx
00000 (herein called the "Mortgagor"), and FIRST NATIONAL BANK OF
ROCHESTER, a national banking association with its principal
office at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx,
(herein called the "Mortgagee").
W I T N E S S E T H, to secure the payment of an
indebtedness in the sum of FIFTY-TWO THOUSAND ONE HUNDRED FORTY
ONE AND 79/100 DOLLARS ($52,141.79) lawful money of the United
States (or so much as may be advanced) to be paid with interest
thereon to be computed from the date hereof, to be paid according
to a certain bond, note, or obligation bearing even date herewith
("Note"), the Mortgagor hereby mortgages to the Mortgagee the
premises described in Schedule "A" attached hereto and made a
part hereof (herein called the "Mortgaged Premises" or
"Premises").
TOGETHER with all the right, title and interest of the
Mortgagor in and to any and all unearned premiums accrued,
accruing or to accrue under any and all insurance policies now or
hereafter obtained by the Mortgagor on the Mortgaged Premises,
TOGETHER with the appurtenances and all the estate and
rights of the Mortgagor in and to said Xxxxxxxx,
TOGETHER with all and singular the tenements, hereditaments,
and appurtenances belonging or in any way appertaining to said
Premises, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof.
TOGETHER with and including any and all strips and gores of
land adjoining or abutting said Premises,
TOGETHER with all right, title, and interest of the
Mortgagor in and to the land lying in the bed of any street,
road, avenue or alley, open or proposed, in front of, running
through or adjoining said Premises,
TOGETHER with all buildings, structures, and improvements
now or at any time hereafter erected, constructed or situated
upon the Premises, and apparatus, fixtures, chattels, and
articles of personal property now or hereafter attached to or
used in connection with said Premises, including but not limited
to furnaces, boilers, oil boilers, radiators and piping, coal
stokers, plumbing and bathroom fixtures, refrigeration, air-
conditioning and sprinkler systems, wash-tubs, sinks, gas and
electric fixtures, stoves, ranges, awnings, screens, window
shades, elevators, motors , dynamos, refrigerators, kitchen
cabinets, incinerators, plants and shrubbery and all other
equipment and machinery, appliances, fittings and fixtures of
every kind in or used in the operation of the buildings standing
on said Premises, together with any and all replacements thereof
and additions thereto,
TOGETHER with all awards heretofore and hereafter made to
the Mortgagor for taking by eminent domain the whole or any part
of said Premises or any easement therein, including any awards
for changes of grade of streets, which said awards are hereby
assigned to the Mortgagee, who is hereby authorized to collect
and receive the proceeds of such awards and to give proper
receipts and acquittances therefor, and to apply the same toward
the payment of the mortgage debt, except as otherwise provided in
this Mortgage, notwithstanding the fact that the amount owing
thereof may not then be due and payable; and the Mortgagor hereby
agrees, upon request, to make, execute and deliver any and all
assignments and other instruments sufficient for the purpose or
assigning said awards to the Mortgagee, free, clear, and
discharged of any encumbrances of any kind or nature whatsoever,
The Mortgagor covenants with the Mortgagee that:
PAY INDEBTEDNESS. The Mortgagor will pay the indebtedness
secured hereby with interest thereon as herein provided and
according to the Note, and if default shall be made in the
payment of part thereof, the Mortgagee shall have power to sell
the Mortgaged Premises according to law.
INSURANCE. The Mortgagor will keep the buildings on the
Premises and the fixtures and articles of personal property
covered by the Mortgage insured against loss by fire and other
hazards, casualties and contingencies, including flood insurance
if required by law, regulation or Mortgagee, for the benefit of
the Mortgagee in an amount not less than the unpaid principal
balance due hereunder. The fire insurance policy as required
hereby shall contain the usual extended coverage endorsement and
shall provide for twenty (20) days written notice to Mortgagee
prior to cancellation. Mortgagor will maintain liability
insurance in minimum amounts of $1,000,000.00 per occurrence for
bodily injury and $100,000.00 for property damage. In addition
thereto the Mortgagor within thirty (30) days after notice and
demand will keep the Premises insured against any other hazard
that may reasonably be required by law, regulation or Mortgagee.
The Mortgagor will assign and deliver said policies to the
Mortgagee and the Mortgagor will reimburse the Mortgagee for any
premiums paid for the insurance made by the Mortgagee on the
Mortgagor's default in so insuring the buildings or in so
assigning and delivering the policies. All the provisions of
this paragraph or of any other provisions of the Mortgage
pertaining to fire insurance or any other additional insurance
which may be required hereunder shall be construed in accordance
with Section 254 Subdivision 4 of the New York Real Property Law.
Notwithstanding the provisions of the aforesaid Section 254,
Subdivision 4, the Mortgagor consents that the Mortgagee may
without qualification or limitation by virtue of said section,
retain and apply the proceeds of any such insurance in
satisfaction or reduction of the Mortgage, or it may at its
election pay the same, either in whole or in part, to the
Mortgagor or its successors or assigns for the repair or
replacement of the buildings or of the insured articles of
personal property or for any other purpose or object reasonably
satisfactory to the holder of the Mortgage, and if the Mortgagee
shall receive and retain such insurance money, the lien of the
Mortgage shall be affected only by a reduction of the amount of
such lien by the amount of such insurance money received and
retained by the Mortgagee.
Notwithstanding the foregoing election available to
Mortgagee, the proceeds of such insurance shall be made available
to Mortgagor if, at the time such proceeds are delivered to
Mortgagee, there is no uncured default under the Note or this
Mortgage and the loan to value ratio (i.e. the then unpaid
principal balance pursuant to the Note divided by the value of
the Premises as reasonably determined by Mortgagee) shall not be
more than 75%. Mortgagee shall disburse such proceeds to
Mortgagor upon completion of work and invoices therefor approved
by Mortgagee, and any excess proceeds shall be utilized to reduce
the unpaid principal sum secured by this Mortgage.
ALTERATIONS, DEMOLITION OR REMOVAL. No building, fixtures
or personal property covered by the Mortgage shall be removed,
demolished, or substantially altered without the prior written
consent of the Mortgagee.
WASTE, MAINTENANCE AND REPAIRS. The Mortgagor will not
commit any waste on the Premises or make any change in the use of
the Premises which will in any way increase any ordinary fire or
other hazard arising out of construction or operation. The
Mortgagor will keep and maintain or cause to be kept and
maintained all buildings and other improvements now or at any
time hereafter erected upon or constituting any portion of the
Mortgaged Premises, and the sidewalks and curbs abutting the
same, in good order and condition and in a rentable and
tenantable state or repair, and will make or cause to be made, as
and when the same shall become necessary, all structural and non-
structural exterior and interior, ordinary and extraordinary,
foreseen and unforeseen repairs, renewals, and replacements
necessary to that end. In the event that the Mortgaged Premises
shall be damaged or destroyed in whole or in part, by fire or any
other casualty, or in the event of a taking of a portion of the
Mortgaged Premises as a result of any exercise of the power of
eminent domain, the Mortgagor shall promptly restore, replace,
rebuild or alter the same as nearly as possible to the condition
they were in immediately prior to such fire, other casualty or
taking, provided the proceeds of the condemnation or any
insurance policy are made available to Mortgagor. Although
damage to or destruction of the Mortgaged Premises, or any
portion thereof, shall not of itself constitute a default
hereunder, the failure of the Mortgagor to restore, replace,
rebuild, or alter the same, as hereinabove provided, shall
constitute a default hereunder. The Mortgagor covenants that it
will give to the Mortgagee prompt written notice of any damage or
injury to the Mortgaged Premises and will give like notice to the
Mortgagee of the commencement of any condemnation proceeding
affecting the whole or any portion of Mortgaged Premises. The
Mortgagor shall have the right, at any time and from time to
time, to remove and dispose of building service equipment which
may have become obsolete or unfit for use or which is no longer
useful in the operation of the building now or hereafter
constituting a portion of the Mortgaged Premises. The Mortgagor
agrees promptly to replace with other building service equipment,
free of superior title, liens or claims, not necessarily of the
same character but of at least equal usefulness and quality, any
such building service equipment so removed or disposed of, except
that, if by reason of technological or other developments in the
operation and maintenance of buildings of the general character
of the building constituting a portion of the Mortgaged Premises,
no replacement of the building service equipment so removed or
disposed of is necessary or desirable in the proper operation or
maintenance of said building, the Mortgagor shall not be required
to replace the same.
TAXES, ASSESSMENTS, ETC. The Mortgagor will pay all taxes,
assessments, insurance premiums, sewer rents, or water rates, and
in default thereof, the Mortgagee may pay the same. Any sums so
advanced by the Mortgagee shall bear interest at the maximum
legal rate of interest at the time of such advance or at the
highest rate of interest set forth herein or in the Note,
whichever is greater, and any such sum and the interest thereon
shall be a lien on said Premises, prior to any right, or title
to, interest in or claim upon said Xxxxxxxx, or accruing
subsequent to the lien of the Mortgage and shall be deemed
secured hereby. Upon written request from Mortgagee, Xxxxxxxxx
shall deliver to Mortgagee receipted tax bills showing payment of
all taxes on the Premises within the applicable grace period.
ESTOPPEL STATEMENT. The Mortgagor within ten (10) days upon
request in person or within twenty (20) days upon request by mail
will furnish a written statement duly acknowledged of the amount
due on the Mortgage and whether any offsets or defenses exist
against the Note and Mortgage.
MORTGAGEE MAY CURE MORTGAGOR'S DEFAULTS. The Mortgagor
covenants and agrees with the Mortgagee that the holder of the
Mortgage may cure any default of Mortgagor on the Mortgage or any
prior or subsequent mortgage, including payment of any
installments of principal and interest or part thereof, and that
all costs and expenses, including reasonable attorneys' fees
together with interest thereon at the highest legal rate of
interest at the time of such default or at the highest rate of
interest set forth herein or in the Note secured by the Mortgage,
whichever is the greater, paid by the Mortgagee in so curing said
default, shall be repaid by the Mortgagor to the Mortgagee on
demand and the same shall be deemed to be secured by the Mortgage
and to be collectible in like manner as the principal sum.
WARRANTY OF TITLE. The Mortgagor warrants the title to the
Premises and will execute any further assurance of the title to
the Premises as Mortgagee may require.
LIEN LAW COVENANT. The Mortgagor will, in compliance with
Section 13 of the New York Lien Law, receive the advances secured
hereby and will hold the right to receive such advances as a
trust fund to be applied first for the purpose of paying the cost
of the improvement and will apply the same first to the payment
of the cost of the improvements before using any part of the
total of the same for any other purpose.
ESCROW FOR TAXES/INSURANCE. The Mortgagee may request at
any time after a default by Mortgagor in payment when due of
property taxes and/or insurance premiums on the Mortgaged
Premises that, in addition to the monthly payments of principal
and interest, the Mortgagor will pay monthly to the Mortgagee on
or before the first day of each and every calendar month, until
the Note is fully paid, a sum equal to one-twelfth of the known
or estimated yearly taxes, assessments, liens and charges levied
or to be levied against the Mortgaged Premises and/or premiums
for insurance held or required by Mortgagee. The Mortgagee shall
hold such payments in trust without obligation to pay interest
thereon, except such interest as may be made mandatory by law or
regulation, to pay such taxes, assessments, liens, charges and
insurance premiums within a reasonable time after they become
due. If the total of payments made by the Mortgagor for taxes,
assessments, liens, charges and insurance premiums shall exceed
the amount of payments actually made by the Mortgagee, such
excess shall be credited by the Mortgagee on subsequent payments
to be made by the Mortgagor or refunded upon payment in full of
the Note. If the total of payments made by the Mortgagor for
taxes, assessments, liens, charges and insurance premiums shall
not be sufficient to pay therefor, then the Mortgagor shall pay
to the Mortgagee any amount necessary to make up the deficiency
on or before the date when such amounts shall be due.
LATE CHARGES. If any payment required to be made under the
Mortgage or the note or the obligations secured by the Mortgage
shall be overdue in excess of 10 days, a late charge of $.06 of
each $1.00 so overdue or $50.00, whichever is greater, will be
paid by the Mortgagor for the purpose of defraying the expenses
incident to handling such delinquent payments.
LEASES. Pursuant to the provisions of Section 291-f of the
New York Real Property Law, the Mortgagor, except for residential
leases with a term not exceeding one (1) year, shall not (a)
amend, cancel, abridge, terminate, or otherwise modify any lease
of said Premises or of any part thereof, or (b) accept prepayment
of rent or installments of rent for more than one month in
advance, without the written consent of the Mortgagee and in the
event of any default under the terms of this paragraph the whole
of said principal sum shall become due immediately upon the
happening thereof at the option of the Mortgagee.
In addition thereto, except for residential leases with a
term not exceeding one (1) year, (a) the Mortgagor shall not make
any new lease or lease renewal or extension (other than those the
Mortgagor as landlord may be required to grant by the terms of an
existing lease) without the prior written consent of the
Mortgagee and (b) the Mortgagor shall furnish to the Mortgagee,
within thirty (30) days after a request by the Mortgagee to do
so, a written statement containing the names of all lessees of
the Premises, the terms of their respective leases, the space
occupied and the rentals payable thereunder.
FINANCIAL STATEMENTS. The Mortgagor will furnish the
Mortgagee with copies of its signed Federal Tax returns as they
are timely filed, but not later than 120 days after the end of
Xxxxxxxxx's fiscal year.
Any guarantor(s) of payment of the indebtedness also shall
provide Mortgagee with copies of their signed Federal Tax Returns
as they are timely filed and with annual personal financial
statements on forms provided by Mortgagee.
The Mortgagee shall have the right to examine the financial
records covering the operation of the Premises at least once a
year or as often as the Mortgagee may require if the Mortgagor be
in default.
PREPAYMENT FEE. If for any reason whatsoever the
indebtedness secured by the Mortgage is prepaid in part or in
full within one (1) year from the date hereof, a prepayment fee
of five percent (5.0%) of the original amount of the consolidated
principal sum will be charged. Beginning with the second loan
year, the prepayment fee shall be reduced by one percent (1.0%)
each year. A loan year begins on the date the Mortgage is
executed and on each anniversary thereof. The amount of such
prepayment consideration shall be added to and secured by the
Note and Mortgage and shall be recoverable by the Mortgagee in
the same manner as the principal balance hereof, and in addition
thereto, in any action brought either on the Note or for the
foreclosure of the Mortgage.
ACCELERATION OF PRINCIPAL ON TRANSFER, ETC. The principal
sum with interest thereon shall become immediately due and
payable, upon the voluntary or involuntary conveyance or transfer
by operation of law or otherwise of all or any part of the
Mortgaged Premises, or any interest or estate therein, including
testate or intestate succession and conveyance by land contract.
Acceptance of payments by the Mortgagee subsequent to any such
conveyance, transfer, or encumbering shall not be deemed a waiver
of any of the Mortgagee's rights.
If the Mortgagor is a corporation, the sale, assignment,
transfer, or other disposition of any stock by any party owning
ten (10%) percent or more of the stock, of any corporation owning
all or any part of the Mortgaged Premises or any other similar
significant change in ownership of such stock or in the relative
distribution thereof, by any method or means, whether by
increased capitalization, merger with another corporation,
corporate or other amendments, issuance of additional or new
stock, reclassification of stock or otherwise shall be deemed a
conveyance or transfer within the meaning of this provision.
If the Mortgagor is a partnership, a sale or transfer by
operation of law or otherwise of any partners' interest in the
partnership or a change in the identity or composition of the
partners of the Mortgagor shall be deemed a conveyance or
transfer within the meaning of this provision.
Notwithstanding the foregoing, transfers of interests in the
Premises to Xxxx and/or Xxxxxx Xxxxxx or their children, or to
trusts or other entities controlled by Xxxx Xxxxxx and/or Xxxxxx
Xxxxxx, shall be permitted without the Mortgagee's consent
provided that (a) notice of transfer is given to Mortgagee; (b)
such transferee assumes the indebtedness evidenced by this
Mortgage; and (c) such transfer shall not affect the liability of
any guarantor.
ACCELERATION OF PRINCIPAL ON DEFAULT, ETC. The whole of the
principal sum and interest shall become due at the option of the
Mortgagee, after (a) default in the payment of any installment of
principal or of interest for thirty (30) days; or, (b) default in
the payment of any tax, water rate, assessment, insurance
premiums, or sewer rent for thirty (30) days after notice and
demand or default after notice and demand either in assigning and
delivering the policies insuring the buildings against any
casualty or in reimbursing the Mortgagee for premiums paid on
such insurance, as herein provided; or (c) default upon request
in furnishing a statement of the amount due and whether any
offsets or defenses exist against the mortgage debt, as provided
herein in the Section entitled "Estoppel Statement"; or (d)
failure to exhibit to the Mortgagee, within ten (10) days after
demand, receipts showing payment of all taxes, water rates, sewer
rents and assessments; or (e) the actual or alteration,
demolition or removal of any building on the Premises without the
written consent of the Mortgagee; or (f) the assignment of the
rents of the Premises or any part thereof without the written
consent of the Mortgagee; or (g) the buildings on said Premises
are not maintained in reasonably good repair; or (h) failure to
comply with any requirement or order or notice of violation of
law or ordinance issued by any governmental department claiming
jurisdiction over the Premises within two (2) months from the
issuance thereof unless such requirement, order or notice is
being lawfully challenged by Xxxxxxxxx and there is no risk of
forfeiture of any of Mortgagor's rights in the Premises; or (i)
refusal of two or more fire insurance companies lawfully doing
business in the State of New York to issue policies insuring the
buildings on the premises; or (j) the removal, demolition or
destruction in whole or in part of any of the fixtures, chattels
or articles of personal property covered hereby, unless the same
are promptly replaced by similar fixtures, chattels and articles
of personal property at least in quality and condition to those
replaced, free from security interests or other encumbrances
thereon and free from any reservation of title thereof; or (k)
thirty (30) days notice to the Mortgagor, in the event of the
passage of any law deducting from the value of land for the
purposes of taxation any lien thereon, or changing in any way the
laws for the taxation of mortgages or debts secured thereby for
state or local purposes; or (1) the Mortgagor fails to keep,
observe and perform any of the other covenants, conditions or
agreements contained in the Mortgage; or (m) use of said Premises
for any unlawful purpose or public or private nuisance; or (n)
the Mortgagor commits or permits waste; or (o) any default under
any mortgage or other lien on the Premises or any default under
any other note, loan agreement or other instrument evidencing
Xxxxxxxxx's indebtedness to Mortgagee; or (p) the Note becomes
non-recourse to the Mortgagor.
NOTICES. Notice and demand to or request upon the Mortgagor
may be oral or in writing and, if in writing, may be served in
person or by mail.
APPOINTMENT OF RECEIVER. The Mortgagee, in any action to
foreclose the Mortgage, shall be entitled, without notice or
demand and without regard to the adequacy of any security for the
indebtedness hereby or the solvency or insolvency of any person
liable for the payment thereof, to the appointment of a receiver
of the rents, issues and profits of the Mortgaged Premises.
SALE IN ONE PARCEL. In case of a foreclosure sale, said
Premises, or so much thereof as may be affected by the Mortgage,
may be sold in one parcel, any provision of law to the contrary
notwithstanding.
ASSIGNMENT OF RENTS. The Mortgagor hereby absolutely and
unconditionally assigns, transfers and conveys to the Mortgagee
the rents, issues, and profits of the Premises as further
security for the payment of the Note, it being the intention of
Mortgagor and Mortgagee that this assignment be treated and
construed as an absolute assignment and not an assignment for
additional security only. The Mortgagor further grants to the
Mortgagee the right to enter upon and to take possession of the
Premises for the purpose of collecting the same and to let the
Premises or any part thereof, and to apply the rents, issues and
profits, after payment of all necessary charges and expenses, on
account of the Note. This assignment and grant shall continue in
effect until the Note is paid. The Mortgagee hereby waives the
right to enter upon and to take possession of the Premises for
the purpose of collecting the rents, issues, and profits, and the
Mortgagor shall be entitled to collect and receive the rents,
issues and profits as trustee for the benefit of Mortgagee and
Mortgagor until default under any of the covenants, conditions,
or agreements contained in the Mortgage; Xxxxxxxxx agrees to use
such rents, issues and profits in payment of principal and
interest and in payment of taxes, assessments, sewer rents, water
rates, and carrying charges against the Premises, but such right
of the Mortgagor may be revoked by the Mortgagee upon any
default, on five (5) days written notice. The Mortgagor will
not, without the written consent of the Mortgagee, receive or
collect rent from any tenant of the Premises or any part thereof
for a period of more than one month in advance, and in the event
of any default under the Mortgage will pay monthly in advance to
the Mortgagee, or to any receiver appointed to collect the rents,
issues and profits, the fair and reasonable rental value for the
use and occupation of the Premises or of such part thereof as may
be in the possession of the Mortgagor, and upon default in any
such payment will vacate and surrender the possession of the
Premises to the Mortgagee or to such receiver, and in default
thereof may be evicted by summary proceedings. Mortgagor shall
and does hereby agree to indemnify and hold Mortgagee and its
representatives harmless of and from any and all liability, loss
of damage which Mortgagor or its representatives may or might
incur under or by reason of (a) any tenant of the Premises, (b)
this Mortgage, (c) any action taken by Mortgagee or its
representatives hereunder, unless constituting willful
misconduct, or (d) claims and demands which may be asserted
against Mortgagee or its representatives by reason of any alleged
obligations or undertakings on its or their part to perform or
discharge any of the terms, covenants or agreements contained in
any lease affecting the Premises. This Mortgage shall not
operate to place upon Mortgagee any responsibility for the
management, operation or maintenance of the Premises, and the
execution of this Mortgage by Mortgagor shall constitute
conclusive evidence that all responsibility for the management,
operation and maintenance of the Premises is, shall be and shall
remain that of Mortgagor, in the absence of the taking of actual
possession of the Premises by Mortgagee. The provisions of the
foregoing indemnification obligation shall survive the assignment
or repayment of the Note, the assignment, satisfaction,
foreclosure or other termination of this Mortgage and the sale or
other transfer or conveyance of the Premises.
SECURITY AGREEMENT. The Mortgage constitutes a security
agreement under the Uniform Commercial Code and creates a
security interest in all fixtures and equipment and other
personal property (and the proceeds thereof) now or hereafter
affixed to or constituting a portion of the Premises. Mortgagor
shall execute, deliver, file and refile any financing statement,
continuation statements, or other security agreements Mortgagee
may require from time to time to confirm the lien of the Mortgage
with respect to such property.
ANTI-MARSHALLING. The Mortgagee may resort for the payment
of any indebtedness, liability, or obligation secured hereby to
its several securities therefor, in such order and manner as it
may see fit, and the Mortgagee may maintain an action to
foreclose the Mortgage notwithstanding the pendency of any action
to recover any part of the indebtedness secured hereby, or the
recovery of any judgment in such action. The Mortgagee shall not
be required during the pendency of any action to foreclose the
Mortgage, to obtain leave of any court in order to commence or
maintain any other action to recover any part of the indebtedness
secured hereby.
The Mortgagee shall also have the right in the event of
default under the Mortgage or the obligation secured hereby to
proceed against any or all interests of the Mortgagor and the
Mortgagor agrees that the Mortgagee shall have the right to elect
in writing not to cut off any interest that any Mortgagor might
have and in the event that Mortgagee shall so elect, Xxxxxxxxx
agrees that all of its duties and obligations as to such interest
shall continue.
COMPLIANCE WITH LAWS, ETC. The Mortgagor will comply with,
or cause compliance with, all present and future laws,
ordinances, rules, regulations, zoning and other requirements of
all governmental authorities whatsoever having jurisdiction of or
with respect to the Mortgaged Premises or any portion thereof or
the use or occupation thereof; provided, however, that the
Mortgagor may postpone such compliance if and so long as the
validity or legality of any such governmental requirement shall
be contested by the Mortgagor, with diligence and in good faith,
by appropriate legal proceedings.
COMPLIANCE WITH ZONING, ETC. The Mortgagor covenants: (a)
that the buildings and improvements now on the Mortgaged Premises
are in full compliance with all applicable zoning codes,
ordinances and regulations and deed restrictions, if any; and (b)
that such compliance is based solely upon Mortgagor's ownership
of such Premises, and not upon title to or interest in any other
Premises; and (c) buildings or improvements hereafter constructed
on such Premises shall be in compliance as in (a) and (b) hereof
provided, shall lie wholly within the boundaries of such Premises
and, shall be independent and self-contained operating units
(except for utility lines and conduits coming directly to the
Premises from a public road or from a private road an easement
over which for the maintenance of such utilities is covered by
the lien hereof.)
LEGAL EXPENSES. If any action or proceeding be commenced
(except an action to foreclose the Mortgage or to collect the
debt secured thereby), to which action or proceeding the
Mortgagee is made a party, or in which it becomes necessary to
defend or uphold the lien of the Mortgage, all sums paid by the
Mortgagee for the expense of any litigation to prosecute or
defend the rights and lien created by the Mortgage (including
counsel fees), shall be paid by the Mortgagor, together with
interest thereon at the legal rate of interest at the time of
said payment or at the highest rate of interest set forth herein
or in the Note secured by the Mortgage, whichever is greater, and
any such sum and interest thereon shall be a lien on said
Premises, prior to any right, or title to, interest in or claim
upon said Premises attaching or accruing subsequent to the lien
of the Mortgage, and shall be deemed to be secured by the
Mortgage.
If the Mortgage is referred to attorneys for collection or
foreclosure, the Mortgagor shall pay all sums, including
attorneys' fees, incurred by the Mortgagee, together with all
statutory costs, disbursements, and allowances, with or without
the institution of an action or proceeding. All such sums with
interest thereon at the rate set forth herein shall be deemed to
be secured by the Mortgage and collectible out of the Mortgaged
Premises.
CONDEMNATION AWARD. In the event of a condemnation award
for a portion of the Premises payable to Mortgagee and Mortgagor,
Mortgagee shall make the proceeds of such award available to
Mortgagor if, at the time such proceeds are delivered to
Mortgagee, there is no uncured default under the Note or this
Mortgage and the loan to value ratio (i.e. the then unpaid
principal balance pursuant to the Note divided by the value of
the Premises as reasonably determined by Mortgagee) shall not be
more than 75%. Mortgagee shall disburse such proceeds to
Mortgagor upon completion of work and invoices therefor approved
by Mortgagee, and any excess proceeds shall be utilized to reduce
the unpaid principal sum secured by this Mortgage.
INTEREST ON CONDEMNATION AWARD. In the event of
condemnation, or taking by eminent domain, the Mortgagee shall
not be limited to the interest paid on the award by the
condemning authority but shall be entitled to receive out of the
award interest on the entire unpaid principal sum at the rate
herein provided; the Mortgagor does hereby assign to the
Mortgagee so much of the balance of the award payable by the
condemning authority as is required to pay such total interest.
INTEREST IN THE EVENT OF DEFAULT. If default be made in the
payment of the said indebtedness when due, pursuant to the terms
hereof, the Mortgagee shall be entitled to receive interest on
the entire unpaid principal sum at the legal rate of interest at
the time of such default or at the highest rate of interest set
forth herein or in the Note secured by the Mortgage, whichever is
the greater, to be computed from the due date and until the
actual receipt and collection of the entire indebtedness. This
charge shall be added to and shall be deemed secured by the
Mortgage. The within clause, however, shall not be construed as
an agreement or privilege to extend the Mortgage, nor as a waiver
of any other right or remedy accruing to the Mortgagee by reason
of any such default.
RENT/BUSINESS INTERRUPTION INSURANCE. The Mortgagor will
keep the buildings and improvements now erected or hereafter to
be erected on the Mortgaged Premises and all personal property
and fixtures covered by the Mortgage insured for the benefit of
the Mortgagee against loss of rents or business income, as the
case may be, by reason of fire or other casualties and in such
amounts as may from time to time be reasonably required by the
Mortgagee and in companies reasonably satisfactory to the
Mortgagee, and will assign and deliver to the Mortgagee such
policies of insurance.
NO SECONDARY FINANCING. The Mortgagor will not, without the
Mortgagee's prior written consent, mortgage (including the so-
called "wrap-around mortgage"), pledge, assign, grant a security
interest in, cause any lien or encumbrance to attach to or any
levy to be made on the Mortgaged Premises except for (a) taxes
and assessments not yet delinquent and (b) any mortgage, pledge,
security interest, assignment or other encumbrance to the
Mortgagee.
BANKRUPTCY. Upon the making of an assignment for the
benefit of creditors by, or upon the filing of a petition in
bankruptcy by or against the Mortgagor, or any person or
corporation who is the guarantor hereof or whose indebtedness is
secured hereby, or upon the application for the appointment of a
receiver of the property of the Mortgagor or any such person or
corporation, or of the property of any person or corporation
which may become and be owner of the Mortgaged Premises, or upon
any act of insolvency or bankruptcy of the Mortgagor or any such
person or corporation or of any such subsequent owner, or upon
the legal incapacity of the Mortgagor or any such person or
corporation or owner, or any of them, the whole of said
indebtedness of every kind or nature held by the Mortgagee and
now or hereafter secured hereby shall immediately become due and
payable with interest thereon, and Mortgagor and any guarantor(s)
hereby waive presentment, demand of payment, protest, notice of
non-payment, and/or protest of any instrument on which the
Mortgagor or such guarantors are or may become liable now or
hereafter secured hereby, and the Mortgagor expressly agrees that
the Mortgagee may release or extend the time of any party liable
on any such obligation without notice and without affecting his
obligation thereon or under this instrument.
LIENS. The Premises shall be kept free and clear from any
liens and/or encumbrances of any type and description after the
date hereof. Upon the recording of any lien or encumbrance, and
the same not having been cleared or bonded of record within
thirty (30) days after filing thereof, the entire debt secured
hereby shall immediately become due and payable.
RIGHT TO INSPECT. The Mortgagee and any persons authorized
by Mortgagee shall have the right to enter and inspect the
Mortgaged Premises at all reasonable times during usual business
hours.
WAIVER. No waiver by the Mortgagee of the breach of any of
the covenants contained in the Note, the Mortgage, or other loan
document, or failure of the Mortgagee to exercise any option
given to it, shall be deemed to be a waiver of any other breach
of the same or any other covenant, or of its rights thereafter to
exercise any such option.
MODIFICATION. No change, amendment, modification,
cancellation or discharge hereof, or any part hereof, shall be
valid unless in writing and signed by the parties hereto or their
respective successors and assigns.
COVENANTS SHALL RUN WITH THE LAND, ETC. The covenants
contained in the Mortgage shall run with the land and bind the
Mortgagor, the heirs, personal representatives, successors and
assigns of the Mortgagor and all subsequent owners,
encumbrancers, tenants and subtenants of the Premises, and shall
enure to the benefit of the Mortgagee, the personal
representatives, successors and assigns of the Mortgagee and all
subsequent holders of the Mortgage.
CONSOLIDATION/SPREADING AGREEMENT. The Mortgage is
consolidated with prior existing mortgages according to Schedule
B attached hereto and made a part hereof.
ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
1. Except as otherwise disclosed in the Phase I
Assessment referenced in the Indemnification Agreement (as
hereinafter defined), Mortgagor makes the following
representations and warranties which shall survive the closing of
this loan:
A. Mortgagor is in compliance in all respects
with all applicable federal, state and local laws, including,
without limitation, those relating to toxic and hazardous
substances and other environmental matters.
B. No portion of the Premises is being used or
has been used at any previous time, for the disposal, storage,
treatment, processing or other handling of any hazardous or toxic
substances.
2. Xxxxxxxxx agrees that Mortgagee or its agents or
representatives may, at any reasonable time and at Xxxxxxxxx's
expenses inspect Xxxxxxxxx's books and records and inspect and
conduct any tests on the Property including taking soil samples
in order to determine whether Xxxxxxxxx is in continuing
compliance with all environmental laws and regulations.
3. If any environmental contamination is found on the
property for which any removal or remedial action is required
pursuant to law, ordinance, order, rule, regulation or
governmental action, Xxxxxxxxx agrees that it will at its sole
cost and expense remove or take such remedial action promptly and
to Mortgagee's satisfaction.
4. Xxxxxxxxx agrees to defend, indemnify and hold
harmless Mortgagee, its employees, agents, officers and directors
from and against any claims, actions, demands, penalties, fines,
liabilities, settlements, damages, costs or expenses (including,
without limitation, attorney and consultant fees, investigation
and laboratory fees, court costs and litigation expenses) of
whatever kind or nature known or unknown contingent or otherwise
arising out of or in any way related to:
A. The past or present disposal, release or
threatened release of any hazardous or toxic substances on the
Premises;
B. Any personal injury (including wrongful death
or property damage, real or personal) arising out of or related
to such hazardous or toxic substances;
C. Any lawsuit brought or threatened, settlement
reached or government order given relating to such hazardous or
toxic substances; and/or
D. Any violation of any law, order, regulation,
requirement, or demand of any government authority, or any
policies or requirements of Mortgagee, which are based upon or in
any way related to such hazardous or toxic substances.
5. Mortgagor knows of no on-site or off-site
locations where hazardous or toxic substances from the operation
of the facility on the Premises have been stored, treated,
recycled or disposed of.
6. Xxxxxxxxx agrees that it will conduct no
excavations at the Premises unless it gives Mortgagee ten days'
notice of its intention to do so. Xxxxxxxxx further agrees that
it will not commence such excavation until Mortgagee has had the
opportunity to sample and test at the excavation location if
Mortgagee so desires. Should the testing results disclose the
presence of hazardous or toxic substances which require removal
and/or remedy under any environmental laws or regulations, the
suspension of excavation activity at such location shall continue
until the hazardous or toxic substances are removed and/or
remedied to Mortgagee's reasonable satisfaction. Mortgagor shall
pay for any and all reasonable costs for any such testing and
removal and/or remedy conducted pursuant to this paragraph.
7. Unless waived in writing by Mortgagee, the breach
of any of the covenants and warranties contained in this section
shall be an event of default under the Mortgage.
8. For purposes of this section, "hazardous and toxic
substances" includes, without limit, any flammable explosives,
radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials defined in the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, the Hazardous Materials Transportation
Act, as amended, the New York State Environmental Conservation
Law, the Resource Conservation and Recovery Act, as amended, and
in the regulations adopted and publications promulgated pursuant
thereto. The provisions of this section shall be in addition to
any other obligations and liabilities Mortgagor may have to
Mortgagee at common law, and shall survive the transactions
contemplated herein. Mortgagee may, at its option, require
Mortgagor to carry adequate insurance, if available at a
reasonable cost, to fulfill Mortgagor's obligations under this
paragraph. Xxxxxxxxx's failure to obtain insurance within 30
days after being requested to do so by Mortgagee, shall
constitute an event of default hereunder.
9. When the terms and provisions contained in the
foregoing Paragraphs 1-8 in any way conflict with the terms and
provisions contained in a certain Environmental Compliance and
Indemnification Agreement of even date herewith ("Indemnification
Agreement"), the terms and provisions contained in the
Indemnification Agreement shall prevail, and, in the event of any
overlapping terms, covenants and conditions, insofar as possible,
the terms, covenants and conditions contained herein and in the
Indemnification Agreement shall both be applicable.
TAX ON NOTE. That in the event that hereafter it is
claimed by any governmental agency that any tax or other
governmental charge or imposition is due, unpaid and payable by
the Mortgagor or the Mortgagee upon the Note (other than a tax on
the interest receivable by the Mortgagee thereunder), the
Mortgagor will upon sixty (60) days prior written notice either
(a) pay such tax and within a reasonable time thereafter deliver
to the Mortgagee satisfactory proof of payment thereof or (b)
deposit with the Mortgagee the amount of such claimed tax,
together with interest and penalties thereon, pending an
application for a review of the claim for such tax, and within a
reasonable time, deliver to the Mortgagee either (i) evidence
satisfactory to the Mortgagee that such claim of taxability has
been withdrawn or defeated in which event any such deposit shall
be returned to the Mortgagor or (ii) a direction from the
Mortgagor to the Mortgagee to pay the same out of the deposit
above mentioned, any excess due over the amount of said deposit
to be paid by the Mortgagor directly to the taxing authority and
any excess of such deposit over such payment by the Mortgagee to
be returned promptly to the Mortgagor. Upon the failure of the
Mortgagor to comply with the provisions of this Article, the
whole of said principal sum and interest secured by the Mortgage
shall at the option of the Mortgagee become due and payable. If
liability for such tax is asserted against the Mortgagee, the
Mortgagee will give to the Mortgagor prompt notice of such claim,
and the Mortgagor, upon complying with the provisions of this
Article, shall have full right and authority to contest such
claim of taxability.
COMPLIANCE WITH ARTICLE 31-B OF NEW YORK STATE TAX LAW.
The Mortgagor will keep true and complete records pertaining to
its acquisition of title to the Premises, all subsequent
transfers of any interests in the Premises or any part thereof
and all changes in the controlling interest (by way of changes in
stock ownership, capital, profits, beneficial interest or
otherwise) in the Mortgagor or any related entity which may
hereafter own the Premises, including, but not limited to, a copy
of the contract of sale, title report, deed, closing statement,
transferor's affidavit, questionnaire or return, statement of
tentative assessment and any other notices or determinations of
tax received from the New York State Department of Taxation and
Finance, transferor's supplemental return, the date and cost of
all "capital improvements" made to the Premises or any part
thereof and evidence of the payment of any real property transfer
gains tax imposed by reason of Article 31-B of the New York State
Tax Law and the filing of all reports and any other information
or documentation required by the New York State Department of
Taxation and Finance by reason of said Article or any regulations
promulgated thereunder. All such records shall be made available
to Mortgagee for inspection from time to time upon its request.
If any real property transfer gains tax shall be due
and payable upon the conveyance of the Premises pursuant to a
judicial sale in any action, suit or proceeding brought to
foreclose the Mortgage or deed in lieu of foreclosure, the
Mortgagor will, at Mortgagee's request, (a) provide Mortgagee
with a copy of all such records and will prepare, execute,
deliver and file any affidavits, records questionnaires, returns
or supplemental returns required of the Mortgagor, as transferor,
including, but not limited to, a statement in affidavit form as
to the "original purchase price" of the Premises and the cost of
all "capital improvements" made to the Premises or any part
thereof by the Mortgagor or any related entity and the date or
dates on which such improvements were made and (b) pay or cause
to be paid any real property transfer gains tax, together with
interest and penalties thereon, which may be due and payable by
reason of such conveyance. The Mortgagor hereby irrevocably
appoints Mortgagee its agent and attorney-in-fact (which
appointment shall be deemed to be an agency coupled with an
interest), with full power of substitution in the Premises, to
prepare, execute, deliver and file on its behalf any and all
affidavits, questionnaires, returns and supplemental returns
which the Mortgagor, as transferor, has failed or refused to
execute and deliver to Mortgagee within 10 days after notice and
request therefor by Mortgagee. In the event that the Mortgagor
fails to pay any such tax, interest and penalties within 20 days
after notice and demand for payment is given by Mortgagee,
Mortgagee is hereby authorized to pay the same, and the amount
thereof so paid by Mortgagee, together with all costs and
expenses incurred by Mortgagee in connection with such payment,
including, but not limited to, reasonable attorneys' fees and
disbursements and interest on all such amounts, costs and
expenses at the rate of one percent (1%) in excess of the rate
specified in the Note, but in no event in excess of the maximum
interest rate permitted by law, shall be paid by the Mortgagor to
Mortgagee on demand. Until paid by the Mortgagor, all such
amounts, costs and expenses, together with interest thereon,
shall be secured by the Mortgage and may be added to the judgment
in any suit brought by Mortgagee against the Mortgagor hereon.
The foregoing shall not be applicable if the aforesaid
Article 31-B does not pertain to the Premises.
CONSTRUCTION. The word "Mortgagor" shall be construed as if
it read "Mortgagors" and the "Mortgagee" shall be construed as if
it read "Mortgagees" whenever the sense of the Mortgage so
requires. This Mortgage shall be governed by and construed in
accordance with the laws of the State of New York.
CONFLICT WITH OTHER LOAN AGREEMENTS. Mortgagor represents
and warrants to Mortgagee that the execution and delivery of this
Mortgage and all related documents and the performance of any
term, covenant, or condition herein provided in any agreement or
instrument executed in connection therewith, have been duly
authorized on behalf of the Mortgagor by all proper and necessary
action, and are not in conflict with, or result in any breach of,
or constitute a default under or violate:
A. Any of the terms, conditions, or provisions of any
agreement, lease or other instrument to which Mortgagor
is a party or subject to; or,
B. Any law, regulation, order, writ, injunction or decree
to which Mortgagor is subject or any rules or
regulations of any administrative agency which have
jurisdiction over Mortgagor or over any property of
Mortgagor that would have a material adverse affect on
Mortgagor's business or financial condition.
SEVERABILITY. In the event any one or more of the
provisions of the Mortgage or the Note shall for any reason be
invalid, illegal or unenforceable in whole or in part, then only
such provision or provisions shall be deemed to be null and void
and of no force or effect, but shall not affect any other
provision of the Mortgage or the Note.
ASSIGNMENT OF MORTGAGE. Upon Mortgagee's receipt of payment
in full of the indebtedness evidenced by the Note and Mortgage
and receipt of a $200.00 assignment processing fee to Mortgagee,
Mortgagee covenants to assign the Mortgage to any new lender
selected by Mortgagor on the following conditions:
A. The Assignment shall be in accordance with Section
275 of the Real Property Law and in a form reasonably acceptable
to Mortgagee and such new lender, suitable for recording in the
Monroe County Clerk's Office, but without any representation or
warranty by, or recourse to, Mortgagee.
B. The Note shall be endorsed, without recourse, as
reasonably requested by such new lender.
C. The Note, Mortgage and Assignment shall be
delivered to such new lender.
IN WITNESS WHEREOF, the Mortgage has been duly executed by
the Mortgagor and Mortgagee, the day and year first above
written.
ESTATE OF XXXX X. XXXXXXX
By: s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Executrix
FIRST NATIONAL BANK OF ROCHESTER
By: s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Vice President
STATE OF NEW JERSEY )
COUNTY OF MONMOUTH ) SS:
On this 27th day of November, 1996, before me, the
subscriber, personally appeared XXXXXX XXXXXX, Executrix of the
Last Will and Testament of XXXX X. XXXXXXX, to me personally
known and known to me to be the same person described in and who
executed the within Instrument, and she acknowledged to me that
she executed the same as such Executrix.
s/Xxxxxxx X. Xxxxxxxx
Notary Public
Notary Public State of New Jersey
Qualified in Ocean County
Commission Expires October 28, 1999
STATE OF NEW YORK)
COUNTY OF MONROE )
On this 4th day of December, 1996, before me, the
subscriber, personally appeared XXXXXX X. XXXXXXX, to me known,
who, being by me duly sworn, did depose and say that he resides
in Rochester, New York, that he is the Vice President of FIRST
NATIONAL BANK OF ROCHESTER, the corporation described in, and
which executed the within Instrument, and that he signed his name
thereto by order of the Board of Directors.
s/Xxxxxx X. Xxxxxx
Notary Public
SCHEDULE A
Description of Mortgaged Premises - omitted in this exhibit.
SCHEDULE B
CONSOLIDATION/SPREADING AGREEMENT
The Mortgage is hereby consolidated, combined and made equal
and coordinate in lien without priority of one over the other
with certain note(s) and mortgage(s) owned and held by the
Mortgagee herein and made, executed and acknowledged by the then
owners of the Mortgaged Premises and described as follows in
attached Schedule C:
The above described mortgage(s), which may be valid liens on
only a portion of the Mortgaged Premises, are hereby modified so
that the liens thereof shall be spread over the whole of the
Mortgaged Premises.
The above described mortgage(s) and the Mortgage shall
constitute in law but one first mortgage and a single lien upon
the Mortgaged Premises for the total sum of FIVE HUNDRED SEVENTY-
FIVE THOUSAND and 00/100 Dollars ($575,000.00) which the
Mortgagor does hereby assume, agree and bind itself to pay to the
Mortgagee with interest thereon to be computed from the date
hereof, or of each advance, at the rate of interest set forth in
a certain Restated Mortgage Note ("Restated Note") executed by
Xxxxxxxxx on even date herewith and the terms of the above-
described mortgage(s) and the Mortgage and the notes which they
secure, are coordinated and consolidated and extended so that the
total mortgage indebtedness shall become due and payable with
interest in accordance with the Restated Note.
The terms, covenants and conditions of the Mortgage
containing these consolidation provisions are hereby incorporated
in and made the terms, covenants and conditions of the notes and
mortgages consolidated herewith and of the Restated Note to the
same effect as though originally incorporated therein, and the
same shall apply to the full amount of the mortgage debt as
consolidated hereby. When the terms and provisions contained
herein in any way conflict with the terms and provisions
contained in the notes and mortgages consolidated herewith, and
of the Restated Note, the terms and provisions herein contained
shall prevail, and, in the event of any overlapping terms,
covenants and conditions, insofar as possible, the terms,
covenants and conditions contained herein and in the notes and
mortgages consolidated herewith and the Restated Note shall both
be applicable. The said notes and mortgages shall otherwise
remain in full force and effect and as modified by this
Agreement, the notes and mortgages are hereby ratified and
confirmed. If the instruments which are being consolidated
herewith are bonds and mortgages, then whenever the words "Note"
or "Notes" appear herein, the same shall be construed to mean
"bond" or "bonds".
SCHEDULE C
Mortgages Being Consolidated
1. Mortgage made by XXXX X. XXXXXXX and XXXXXXX X.
XXXXXXXXX to XXXX MANOR, INC. in the original principal amount of
$1,100,000.00, dated August 6, 1987 and recorded August 10, 1987
in the Monroe County Clerk's Office in Liber 8334 of Mortgages,
at page 230.
The above mortgage was assigned by XXXX MANOR, INC. to XXXX
X. XXXXXXXXXXXX, XXXX X. XXXXXXXXXXXX, XXXXXX XXXXXXXXXXXX, XXXXX
XXXXXXXXXXXX, XXXXX XXXXXXXXXXXX and XXXXX XXXXXXXXXXXX, by an
assignment dated August 6, 1992 and recorded September 1, 1992 in
the Monroe County Clerk's Office in Liber 926 of Assignments of
Mortgages, page 495.
The above mortgage was assigned by XXXXX XXXXXXXXXXXX to
XXXX X. XXXXXXXXXXXX, XXXX X. XXXXXXXXXXXX, XXXXXX XXXXXXXXXXXX,
XXXXX XXXXXXXXXXXX and XXXXX XXXXXXXXXXXX, by an assignment dated
October 12, 1988 and recorded September 1, 1992 in the Monroe
County Clerk's Office in Liber 926 of Assignments of Mortgages,
page 498.
The above mortgage was assigned by XXXXX XXXXXXXXXXXX to
FLEET BANK OF NEW YORK N.A., by an assignment dated August 31,
1992 and recorded September 1, 1992 in the Monroe County Clerk's
Office in Liber 926 of Assignments of Mortgages, page 501.
The above mortgage was assigned by XXXXXX XXXXXXXXXXXX to
FLEET BANK OF NEW YORK N.A., by an assignment dated August 31,
1992 and recorded September 1, 1992 in the Monroe County Clerk's
Office in Liber 926 of Assignments of Mortgages, page 504.
The above mortgage was assigned by XXXX X. XXXXXXXXXXXX,
XXXX X. XXXXXXXXXXXX and XXXXX XXXXXXXXXXXX to FLEET BANK OF NEW
YORK N.A., by an assignment dated August 29, 1992 and recorded
September 1, 1992 in the Monroe County Clerk's Office in Liber
926 of Assignments of Mortgages, page 507.
The above mortgage was modified by a Mortgage Modification,
Extension, Spreading & Security Agreement made by and between
XXXX X. XXXXXXX and FLEET BANK OF NEW YORK, N.A., dated September
1, 1992 and recorded September 1, 1992 in Liber 11119 of
Mortgages, page 518.
The unpaid principal balance on the above mortgage is
$522,858.21.
CONTINUING UNLIMITED GUARANTY
In consideration of any extension of credit by FIRST
NATIONAL BANK OF ROCHESTER, (hereinafter called "Bank") to the
ESTATE OF XXXX X. XXXXXXX, L.P., (hereinafter called "Customer"),
either alone or with one or more persons, the undersigned does
hereby (jointly and severally if the undersigned be more than one
person) guarantee the full and prompt payment to said Bank, when
due, whether accelerated or not, of any and all indebtedness,
liabilities and obligations of every nature and kind, whether
heretofore or hereafter arising of Customer to Bank, including
but not limited to all currently existing indebtedness of Company
to Bank, and all indebtedness of Company to Bank hereafter
incurred, all of which is referred to herein as the
"Indebtedness".
1. The undersigned further (jointly and severally, if the
undersigned be more than one person) agree(s) to pay all costs,
expenses and reasonable attorney's fees at any time paid or
incurred by the Bank in endeavoring to collect the Indebtedness
or any part thereof and in and about the enforcement of this
instrument.
2. This instrument is and is intended to be a continuing
guaranty for the Indebtedness (irrespective of the aggregate
amount thereof, or changes in the same from time to time) to the
extent above specified, independent of and in addition to any
other guaranty, endorsement or security held by Bank therefor,
and without right of subrogation on the part of the undersigned
until the Indebtedness is paid in full. The undersigned
acknowledge that this guaranty does not modify or terminate any
previous guaranties executed and delivered to Bank by the
undersigned or either of them, which guaranties, if any, remain
in full force and effect. This guaranty shall remain in full
force and effect until the Bank or its successors or assigns,
shall actually receive written notice of its discontinuance or
notice of the death of the undersigned and all of the
Indebtedness contracted for or created before the receiving of
such notice, and any extensions or renewals thereof whether made
before or after the receipt of such notice, together with
interest accrued thereon, shall be paid in full. In the event of
the discontinuance of this guaranty as to any of the undersigned
because of receipt by the Bank of notice of death or notice of
discontinuance, this guaranty shall, notwithstanding, still
continue and remain in full force against the survivor or
survivors of the undersigned until discontinued as to them in the
same manner. In the event all of the Indebtedness shall at any
time, or from time to time, be satisfied, this guaranty shall,
nevertheless, continue in full force and effect as to any such
Indebtedness contracted for or incurred thereafter, from time to
time, before receipt by Bank of written notice of discontinuance
or written notice of death of the undersigned.
3. If any default shall be made in the payment of any or
all of the Indebtedness, the undersigned hereby (jointly and
severally, if the undersigned be more than one person) agree(s)
to pay the same without requiring protest or notice of
non-payment or notice of default to the undersigned, to the
Customer, or to any other person, without proof of demand and
without requiring the Bank to resort first to the Customer or to
any other guaranty, security or collateral which it may have or
hold. The undersigned hereby waives demands of protest and
notice of non-payment and protest to the undersigned, to the
Customer, or to any other person; notice of acceptance hereof or
assent hereto by Bank; and notice that any Indebtedness has been
incurred by the Customer to Bank, and notice in the change of the
terms of payment of any of the Indebtedness, including but not
limited to a change in the interest rate on any or all of the
Indebtedness.
4. Upon default being made in the payment of any of the
Indebtedness, the undersigned authorize(s) and empowers the Bank,
in addition to its other remedies, to charge any account of
the undersigned, and if the undersigned be more than one person,
any account of any or all of the undersigned with the full amount
then due on this guaranty and to sell, at any broker's board or
at a public or private sale, (with such notice, if any, referred
under the Uniform Commercial Code, to the undersigned,) any
property of the undersigned (or any of them) in the possession or
custody of the Bank and to apply the proceeds thereof to any
balance due on this guaranty. Upon any such sale the Bank may
itself purchase the whole or any part of any property sold free
from any right of redemption which is expressly waived and
released.
5. The undersigned also further agree(s) that the Bank
shall have the irrevocable right, in its sole discretion, with or
without notice to the undersigned, either before or after the
institution of bankruptcy or other legal proceedings by or
against the undersigned or any of them, or before or after
receipt of written notice of the death of the undersigned, or any
of them, or written notice of discontinuance of any of the
undersigned's liability hereunder from any of the undersigned, to
extend the time given for the payment of the Indebtedness or any
part thereof. Bank may accept one or more renewal notes for the
Indebtedness which shall be considered not as new obligations but
as extensions of the obligations renewed, and no such extensions
shall discharge or in any manner affect the liability of the
undersigned, or the liability of the estate or estates of either
or any of the undersigned under this guaranty.
6. The liability of the undersigned hereunder shall not be
affected or impaired by any acceptance by the Bank of security
for payment of the Indebtedness, or any part thereof, or by any
disposition of or failure, neglect or omission on the part of the
Bank to realize upon any such security or any security at any
time held by or left with the Bank for any or all of the
Indebtedness, or upon which a lien may exist therefor, may be
exchanged, withdrawn or surrendered from time to time or
otherwise dealt with by the Bank without notice to or assent from
the undersigned, to the same extent as though this guaranty had
not been given. Bank shall have the exclusive right to determine
how, when and what application of payments and credits, if any,
shall be made on the Indebtedness, or any part thereof, and may
apply the same upon principal or interest or fees or expense as
it sees fit. The undersigned hereby (jointly and severally)
agree(s) and consent(s) that the Bank shall have the right to
make any agreement with the Customer or with any party to or any
one liable for the payment of all or any of the Indebtedness or
interested therein, for the compounding, compromise, discharge or
release thereof, in whole or in part, for any modification or
alteration of any of the terms thereof, including but not limited
to, a change in the interest rate, or of any contract between the
Bank and the Customer or any other party without notice to or
assent from the undersigned. The Bank shall also have the right
to discharge or release one or more of the undersigned from any
obligation hereunder, in whole or in part, without in any way
releasing, impairing or affecting its rights against the other or
others of the undersigned.
7. This guaranty is absolute and unconditional and shall
not be affected by any act or thing whatsoever, except the
payment in full of the Indebtedness hereby secured. This is a
guaranty of payment and not collection. The failure of any other
person to sign this guaranty shall not release or affect the
liability of any signer hereof. This guaranty has been
unconditionally delivered to Bank by each of the persons who have
signed it.
8. If a claim is made upon Bank at any time for repayment
or recovery of any amount of the Indebtedness, or other value
received by Bank from any source, in payment of or on account of
any of the Indebtedness, and Bank repays or otherwise becomes
liable for all or any part of such claim by reason of (a) any
judgment, decree, or order of any court or administrative body,
or (b) any settlement or compromise of such claim or claims, the
undersigned shall remain liable to Bank hereunder for the amount
so repaid or for which Bank is otherwise liable, to the same
extent as if any such amounts had not been received by Bank,
notwithstanding any return or destruction of the original of this
guaranty, or termination hereof or cancellation of any note, bond
or other obligation which evidences all or a portion of the
Indebtedness.
9. The undersigned unconditionally agrees that he will not
assert, and he does hereby waive, any right he may have against
Customer for indemnity, subrogation, reimbursement, contribution,
or any other claim to Xxxxxxxx's assets, thereby relinquishing
any right he may have to be a creditor of Customer.
10. This document is the final expression of this guaranty
of the undersigned in favor of Bank, and is the complete and
exclusive statement of the terms of this guaranty. No course of
prior dealings between the undersigned and Bank, nor any usage of
trade, nor any parol or extrinsic evidence of any nature or kind,
shall be used or be relevant to supplement, explain or modify
this guaranty.
11. All payments of principal or interest made on the
Indebtedness by the Customer to the Bank shall be deemed to have
been made as agent for the undersigned for the purpose of tolling
or renewing the Statute of Limitations.
12. This guaranty and every part hereof shall be binding
(jointly and severally) upon the undersigned and the heirs, legal
representatives, successors and assigns of the undersigned, and
shall inure to the benefit of the Bank, its successors and
assigns.
13. This instrument cannot be changed or modified or
discharged in whole or in part, orally, and shall be governed by
New York law. Any litigation involving this guaranty shall, at
Bank's option, be tried only in a court of competent jurisdiction
located in Monroe County, New York.
14. All obligations of the undersigned under this guaranty
are joint and several.
IN WITNESS WHEREOF the undersigned has signed and sealed
this instrument at Ocean County, New Jersey, as of the 3rd day of
December, 1996
s/Xxxx Xxxxxx
(L.S.)
Xxxx Xxxxxx
STATE OF NEW JERSEY )
COUNTY OF MONMOUTH ) SS:
On this 27th day of November, 1996, before me
personally appeared XXXX XXXXXX, to me personally known and known
to me to be the same person described in and who executed the
within Guaranty, and he duly acknowledged to me that he executed
the same.
s/Xxxxxxx X. Xxxxxxxx
Notary Public
Notary Public State of New Jersey
Qualified in Ocean County
Commission Expires October 28, 1999
CONTINUING UNLIMITED GUARANTY
In consideration of any extension of credit by FIRST
NATIONAL BANK OF ROCHESTER, (hereinafter called "Bank") to the
ESTATE OF XXXX X. XXXXXXX, (hereinafter called "Customer"),
either alone or with one or more persons, the undersigned does
hereby (jointly and severally if the undersigned be more than one
person) guarantee the full and prompt payment to said Bank, when
due, whether accelerated or not, of any and all indebtedness,
liabilities and obligations of every nature and kind, whether
heretofore or hereafter arising of Customer to Bank, including
but not limited to all currently existing indebtedness of Company
to Bank, and all indebtedness of Company to Bank hereafter
incurred, all of which is referred to herein as the
"Indebtedness".
1. The undersigned further (jointly and severally, if the
undersigned be more than one person) agree(s) to pay all costs,
expenses and reasonable attorney's fees at any time paid or
incurred by the Bank in endeavoring to collect the Indebtedness
or any part thereof and in and about the enforcement of this
instrument.
2. This instrument is and is intended to be a continuing
guaranty for the Indebtedness (irrespective of the aggregate
amount thereof, or changes in the same from time to time) to the
extent above specified, independent of and in addition to any
other guaranty, endorsement or security held by Bank therefor,
and without right of subrogation on the part of the undersigned
until the Indebtedness is paid in full. The undersigned
acknowledge that this guaranty does not modify or terminate any
previous guaranties executed and delivered to Bank by the
undersigned or either of them, which guaranties, if any, remain
in full force and effect. This guaranty shall remain in full
force and effect until the Bank or its successors or assigns,
shall actually receive written notice of its discontinuance or
notice of the death of the undersigned and all of the
Indebtedness contracted for or created before the receiving of
such notice, and any extensions or renewals thereof whether made
before or after the receipt of such notice, together with
interest accrued thereon, shall be paid in full. In the event of
the discontinuance of this guaranty as to any of the undersigned
because of receipt by the Bank of notice of death or notice of
discontinuance, this guaranty shall, notwithstanding, still
continue and remain in full force against the survivor or
survivors of the undersigned until discontinued as to them in the
same manner. In the event all of the Indebtedness shall at any
time, or from time to time, be satisfied, this guaranty shall,
nevertheless, continue in full force and effect as to any such
Indebtedness contracted for or incurred thereafter, from time to
time, before receipt by Bank of written notice of discontinuance
or written notice of death of the undersigned.
3. If any default shall be made in the payment of any or
all of the Indebtedness, the undersigned hereby (jointly and
severally, if the undersigned be more than one person) agree(s)
to pay the same without requiring protest or notice of
non-payment or notice of default to the undersigned, to the
Customer, or to any other person, without proof of demand and
without requiring the Bank to resort first to the Customer or to
any other guaranty, security or collateral which it may have or
hold. The undersigned hereby waives demands of protest and
notice of non-payment and protest to the undersigned, to the
Customer, or to any other person; notice of acceptance hereof or
assent hereto by Bank; and notice that any Indebtedness has been
incurred by the Customer to Bank, and notice in the change of the
terms of payment of any of the Indebtedness, including but not
limited to a change in the interest rate on any or all of the
Indebtedness.
4. Upon default being made in the payment of any of the
Indebtedness, the undersigned authorize(s) and empowers the Bank,
in addition to its other remedies, to charge any account of
the undersigned, and if the undersigned be more than one person,
any account of any or all of the undersigned with the full amount
then due on this guaranty and to sell, at any broker's board or
at a public or private sale, (with such notice, if any, referred
under the Uniform Commercial Code, to the undersigned,) any
property of the undersigned (or any of them) in the possession or
custody of the Bank and to apply the proceeds thereof to any
balance due on this guaranty. Upon any such sale the Bank may
itself purchase the whole or any part of any property sold free
from any right of redemption which is expressly waived and
released.
5. The undersigned also further agree(s) that the Bank
shall have the irrevocable right, in its sole discretion, with or
without notice to the undersigned, either before or after the
institution of bankruptcy or other legal proceedings by or
against the undersigned or any of them, or before or after
receipt of written notice of the death of the undersigned, or any
of them, or written notice of discontinuance of any of the
undersigned's liability hereunder from any of the undersigned, to
extend the time given for the payment of the Indebtedness or any
part thereof. Bank may accept one or more renewal notes for the
Indebtedness which shall be considered not as new obligations but
as extensions of the obligations renewed, and no such extensions
shall discharge or in any manner affect the liability of the
undersigned, or the liability of the estate or estates of either
or any of the undersigned under this guaranty.
6. The liability of the undersigned hereunder shall not be
affected or impaired by any acceptance by the Bank of security
for payment of the Indebtedness, or any part thereof, or by any
disposition of or failure, neglect or omission on the part of the
Bank to realize upon any such security or any security at any
time held by or left with the Bank for any or all of the
Indebtedness, or upon which a lien may exist therefor, may be
exchanged, withdrawn or surrendered from time to time or
otherwise dealt with by the Bank without notice to or assent from
the undersigned, to the same extent as though this guaranty had
not been given. Bank shall have the exclusive right to determine
how, when and what application of payments and credits, if any,
shall be made on the Indebtedness, or any part thereof, and may
apply the same upon principal or interest or fees or expense as
it sees fit. The undersigned hereby (jointly and severally)
agree(s) and consent(s) that the Bank shall have the right to
make any agreement with the Customer or with any party to or any
one liable for the payment of all or any of the Indebtedness or
interested therein, for the compounding, compromise, discharge or
release thereof, in whole or in part, for any modification or
alteration of any of the terms thereof, including but not limited
to, a change in the interest rate, or of any contract between the
Bank and the Customer or any other party without notice to or
assent from the undersigned. The Bank shall also have the right
to discharge or release one or more of the undersigned from any
obligation hereunder, in whole or in part, without in any way
releasing, impairing or affecting its rights against the other or
others of the undersigned.
7. This guaranty is absolute and unconditional and shall
not be affected by any act or thing whatsoever, except the
payment in full of the Indebtedness hereby secured. This is a
guaranty of payment and not collection. The failure of any other
person to sign this guaranty shall not release or affect the
liability of any signer hereof. This guaranty has been
unconditionally delivered to Bank by each of the persons who have
signed it.
8. If a claim is made upon Bank at any time for repayment
or recovery of any amount of the Indebtedness, or other value
received by Bank from any source, in payment of or on account of
any of the Indebtedness, and Bank repays or otherwise becomes
liable for all or any part of such claim by reason of (a) any
judgment, decree, or order of any court or administrative body,
or (b) any settlement or compromise of such claim or claims, the
undersigned shall remain liable to Bank hereunder for the amount
so repaid or for which Bank is otherwise liable, to the same
extent as if any such amounts had not been received by Bank,
notwithstanding any return or destruction of the original of this
guaranty, or termination hereof or cancellation of any note, bond
or other obligation which evidences all or a portion of the
Indebtedness.
9. The undersigned unconditionally agrees that he will not
assert, and he does hereby waive, any right he may have against
Customer for indemnity, subrogation, reimbursement, contribution,
or any other claim to Xxxxxxxx's assets, thereby relinquishing
any right he may have to be a creditor of Customer.
10. This document is the final expression of this guaranty
of the undersigned in favor of Bank, and is the complete and
exclusive statement of the terms of this guaranty. No course of
prior dealings between the undersigned and Bank, nor any usage of
trade, nor any parol or extrinsic evidence of any nature or kind,
shall be used or be relevant to supplement, explain or modify
this guaranty.
11. All payments of principal or interest made on the
Indebtedness by the Customer to the Bank shall be deemed to have
been made as agent for the undersigned for the purpose of tolling
or renewing the Statute of Limitations.
12. This guaranty and every part hereof shall be binding
(jointly and severally) upon the undersigned and the heirs, legal
representatives, successors and assigns of the undersigned, and
shall inure to the benefit of the Bank, its successors and
assigns.
13. This instrument cannot be changed or modified or
discharged in whole or in part, orally, and shall be governed by
New York law. Any litigation involving this guaranty shall, at
Bank's option, be tried only in a court of competent jurisdiction
located in Monroe County, New York.
14. All obligations of the undersigned under this guaranty
are joint and several.
IN WITNESS WHEREOF the undersigned has signed and sealed
this instrument at Ocean County, New Jersey, as of the 3rd day of
December, 1996
s/Xxxxxx Xxxxxx
(L.S.)
Xxxxxx Xxxxxx
STATE OF NEW JERSEY )
COUNTY OF MONMOUTH ) SS:
On this 27th day of November, 1996, before me
personally appeared XXXXXX XXXXXX, to me personally known and
known to me to be the same person described in and who executed
the within Guaranty, and she duly acknowledged to me that she
executed the same.
s/Xxxxxxx X. Xxxxxxxx
Notary Public
Notary Public State of New Jersey
Qualified in Ocean County
Commission Expires October 28, 1999
