MORTGAGE
THIS MORTGAGE, made the 25th day of February, 1998 by USA DETERGENTS,
INC., a corporation organized and existing under the laws of the State of
Delaware, and duly authorized to do business in the State of New Jersey,
located at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000 ("Mortgagor"),
and PNC BANK, NATIONAL ASSOCIATION, having an office at Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000 ("Mortgagee").
W I T N E S S E T H:
Mortgagor, intending to be legally bound and for the purpose of
securing strict, absolute and unconditional payment and performance under
certain Notes of even date herewith [as defined in an Amended and Restated Loan
and Security Agreement (hereafter the "Loan Agreement") executed
contemporaneously herewith], together with any amendments thereto, extensions
or renewals thereof, or any substitutions or replacements therefore, with
interest thereon, in the aggregate principal amount of Thirty-Five Million Nine
Hundred Ninety-Seven Thousand Nine Hundred Eighty-Three Dollars and Sixteen
Cents ($35,997,983.16) executed and delivered by Mortgagor to Mortgagee and
payment and performance of any and all liabilities, debts and obligations of
Mortgagor related thereto whether under any and all agreements now or hereafter
entered into between Mortgagor and Mortgagee or otherwise, without limitations,
and to secure performance of the covenants contained in this Mortgage does
hereby give, grant, bargain, sell, release, transfer, alien, enfeoff, convey
and confirm to Mortgagee, the lands, premises and property situate in the
Township of North Brunswick, County of Middlesex and State of New Jersey,
commonly known as 0000 X.X. Xxxxxxx Xxx Xxxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx,
Block 143, Lot 18.3 on the Tax Map of the Township of North Brunswick, and more
particularly described in Schedule "A" annexed hereto and made a part hereof.
The loans from Mortgagee to Mortgagor which is evidenced by the Notes is
hereinafter referred to as the "Loans". The documents evidencing and/or
securing the Loans are hereinafter collectively referred to as the "Relevant
Documents." Notwithstanding anything contained herein to the contrary, this
Mortgage shall constitute a first mortgage lien on the Subject Premises (as
hereinafter defined) securing the principal sum of $5,000,000.00, interest
thereon and costs and expenses related thereto and a third mortgage lien on the
Subject Premises securing the principal sum of $30,997,983.16, interest thereon
and costs and expenses relating thereto, which third mortgage lien shall be
subject and subordinate to that certain second mortgage (the "Second Mortgage")
securing the principal sum of $4,000,000.00 and interest thereon granted to 101
Realty Associates, L.L.C., a New Jersey limited liability company ("101
Realty").
TOGETHER with all and singular the present and future buildings and
improvements thereon and the appurtenances thereto.
AND TOGETHER with the buildings, streets, alleys, easements, passage
ways, water, watercourses, rights, liberties, privileges, improvements, mineral
rights, hereditaments and appurtenances whatsoever thereunto belonging or in
any way appertaining, and the reversions and remainders.
AND ALSO TOGETHER with any and all fixtures, machinery, equipment and
other articles of real, personal or mixed property at any time attached to or
situate or installed in or upon the above described real estate or the
buildings and improvements now or hereafter erected
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thereon, whether or not such real, personal or mixed property is or shall be
affixed to the same, including, without limitations to things similar or
dissimilar;
All furniture, furnishings, floor coverings, household appliances,
office equipment, and articles of interior decoration;
All machinery, equipment, lifts, cranes, hoists, platforms;
All cleaning, ventilating, refrigerating, vending, incinerating, waste
disposal, conveyor, communications, alarm, fire prevention and fire
extinguishing systems, apparatus and equipment;
All passenger and freight elevators, escalators and machinery and
equipment pertaining thereto;
All pipes, conduits, pumps, boilers, tanks, motors, engines, furnaces,
and compressors;
All heating, lighting, water, power, plumbing, gas-burning,
air-conditioning and electrical fixtures, machinery and equipment of
whatsoever kind and nature;
All computers, disc drives, tape drives, modems, data lines, memory
blanks, processors, and all hardware and software relating thereto;
All additions thereto and accessions thereon; and
All replacements thereof and substitutions therefor as well as the
proceeds thereof, including, without limitation, proceeds of insurance
and condemnation awards;
all of which are hereby declared and shall be deemed to be real estate
fixtures, accessory to the freehold and a part of the reality. It being the
intention of the parties, without limiting the generality of the foregoing,
that the aforesaid indebtedness shall be secured, inter alia, upon the
buildings and improvements erected on said real estate, fully furnished and
equipped and that all articles of real, personal or mixed property, furniture
and furnishings, machinery and equipment, necessary or useful for any purpose
to which such buildings and improvements are now or hereafter put, which may at
any time hereafter be in, on or about the premises, not limited to those
enumerated herein (but excluding all consumable stores and all furniture,
furnishings, appliances, trade fixtures, fixtures, and other personal property
owned by tenants and installed for the purpose of their tenancies with right of
removal at or before the expiration of the terms of their leases) as well as
the proceeds thereof, shall be deemed to be a part of the security for said
indebtedness and subject to the lien of this Mortgage. This Mortgage shall also
constitute a security agreement under the Uniform Commercial Code, and
Mortgagor grants and Mortgagee shall have and may enforce a security interest,
to secure payment of all sums due or to become due to the Mortgagee, in any or
all said fixtures, machinery, inventory, furniture, equipment, furnishings and
other articles of real, personal or mixed property in addition to (but not in
limitation of) the lien upon the same, as part of the reality, imposed by the
foregoing provisions hereof, such security interest to attach at the earliest
moment permitted by law and also to include and attach to all accounts,
accounts receivable, contract rights, chattel paper, documents, instruments,
goods and general intangibles of Mortgagor obtained in connection with or
relating to the operation, construction and maintenance of the premises, or
used or useable in connection therewith, including, without limitation, all
plans, blueprints, surveys, operating manuals, diagrams, drawings, records,
books, computer programs, computer tapes, discs, computer printouts, as well as
any and all items of property in the foregoing classifications which are
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hereafter acquired and in all cash and non-cash proceeds thereof (including
insurance proceeds) and proceeds of proceeds.
AND ALSO TOGETHER, with all of the rents, issue, profits and proceeds
of the premises, including without limitation all of the rents, issue, profits
and proceeds of all of the foregoing. (All of the property, whether real,
personal or mixed in which Mortgagor is granting a lien and/or security
interest is referred to herein as the "Subject Premises").
TO HAVE AND TO HOLD the said hereditaments and Subject Premises
granted above, or intended to be so granted, with the appurtenances, unto the
Mortgagee to and for the only proper use and behoof of the Mortgagee, forever.
AND the Mortgagor does hereby covenant with Mortgagee that Mortgagor
is lawfully seized of an indefeasible estate in fee simple in the Subject
Premises; that Mortgagor is the sole legal and beneficial owner thereof and
does not hold as straw party for or nominee of any other person, firm or
corporation; that Mortgagor has good right and lawful authority to sell or
mortgage the same; and that Mortgagor's title to the Subject Premises is free
and clear of all liens and encumbrances and shall defend same against all
willful claims whatsoever.
This Mortgage secures repayment of moneys due under the Notes
and the other Relevant Documents. The Notes is also secured by any and all
guaranty agreements heretofore or hereafter executed and delivered which assure
payment and performance as therein specified of the obligations of the
Mortgagor therein specified and such other monies as may be due from Mortgagor
to Mortgagee now or hereafter as further set out below (collectively, the
"Guaranty Agreement"). Each party to a Guaranty Agreement is hereinafter
referred to as a "Guarantor". The original stated amount of the obligations
secured hereby including the Notes is the total of the sums aforementioned
including sums due or to become due in the future from Mortgagor to Mortgagee
in connection with any of the foregoing, provided, however the dollar amount
set forth herein is solely for the purposes of this Mortgage and shall not be
construed as limiting or modifying the Guaranty Agreement in any way. This
Mortgage contemplates future advances to Mortgagor and shall secure repayment
of all monies due from Mortgagor to Mortgagee now or in the future whether due
under this Mortgage, the Notes, the Loan Agreement (as defined herein), or any
of the other Relevant Documents. In addition to the principal under the Notes,
this Mortgage shall secure payment of interest under the Notes on the unpaid
principal balance thereof (including interest at the Taxable Rate as set out in
the Notes if this Mortgage secures repayment of the Loans the interest on which
is exempt from federal taxation) from the date of the Notes until paid.
TAX IDENTIFICATION NUMBER. The tax identification number of
the Mortgagor is 00-0000000.
FUTURE ADVANCES. THIS MORTGAGE SECURES FUTURE ADVANCES. This
Mortgage shall also cover and be security for any other future advances that
may be made in connection with the Loans (whether with or without obligation to
do so) by Mortgagee to Mortgagor at any time or times hereafter whether or not
any reference is made to this Mortgage at the time that such advances are made,
including without limitation, any advances made by Mortgagee for the protection
or preservation of the Subject Premises, or Mortgagee's lien position thereon,
including any such advances made subsequent to the entry of foreclosure
judgment. This Mortgage shall secure repayment of all monies due from Mortgagor
to Mortgagee in connection with the Loans now or in the future even if such
amounts exceed the aforementioned contemplated maximum amount secured hereby.
Without limiting the generality of any other provision(s) hereof, this Mortgage
shall also secure repayment of the unpaid balance
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of advances made, with respect to the Subject Premises, for the payment of
taxes, assessments, maintenance charges, insurance premiums or costs incurred
for the protection of the Subject Premises or the lien of this Mortgage,
expenses incurred by the Mortgagee by reason of default by the Mortgagor under
this Mortgage or advances made under the Loan Agreement. The amount of all such
Loans or advances shall be added to the principal indebtedness but shall bear
interest and shall be repaid at the rate or rates specified in the Notes or
other evidence(s) of indebtedness made in connection with such Loans or
advances.
DEFAULT RATE. Upon the occurrence of an Event of Default (as
defined herein), Mortgagee, at its sole option, may increase the interest rate
due on all sums secured hereby to a rate of interest which is two percent (2%)
above the interest rate specified in the Notes (the "Default Rate").
PROVIDED ALWAYS that, if Mortgagor shall pay to Mortgagee all
sums due or to become due under the Notes, this Mortgage, the Loan Agreement,
or any of the other Relevant Documents, and shall fully perform, comply with,
and abide by each and every stipulation, agreement, condition, and covenant of
this Mortgage, the Notes, the Loan Agreement, and the other Relevant Documents
and shall pay all taxes, charges and assessments that may accrue on or be
levied or assessed against the Subject Premises, and all costs and expenses
that Mortgagee may be put to in collecting the indebtedness secured hereby,
protecting the security hereof, and/or enforcing the covenants and promises of
Mortgagor by foreclosure of this Mortgage or otherwise, including without
limitation, attorneys' fees; that then and from thence forth, this Mortgage and
the estate hereby granted shall cease and be null and void.
1. PAYMENT AND PERFORMANCE.
A. Payments shall be made at such office of Mortgagee as the
Mortgagee shall direct in writing from time to time.
B. Mortgagor shall perform and comply with all of the
agreements, conditions, covenants, provisions and stipulations contained
herein, in the Notes, in the Loan Agreement, and in the other Relevant
Documents. Such performance shall be at Mortgagor's sole cost.
C. A default by the Mortgagor under the Loan Agreement shall
likewise be a default by the Mortgagor hereunder and under the Notes. The Loan
Agreement, this Mortgage and the Notes are intended to supplement each other
and, to the extent of any conflict among them, the provisions of the Loan
Agreement shall prevail unless the giving of such priority to the provisions of
the Loan Agreement would result in any lien against the Subject Premises
becoming prior to the lien of this Mortgage as to all or any part of the
indebtedness secured hereby theretofore or thereafter advanced by the
Mortgagee.
D. Except as provided in paragraph 1C. hereof, if there is a
conflict between the terms of this Mortgage and the Notes, the terms of this
Mortgage shall prevail.
2. TAXES AND INSURANCE ESCROWS.
A. At the option of Mortgagee, whether or not an Event of
Default (as defined herein) has occurred hereunder Mortgagor shall pay to
Mortgagee, on the first day of each month, a sum determined by dividing the
amount of all real estate taxes, water and sewer rents, assessments, ground
rents, levies, liabilities, obligations and encumbrances (all as estimated
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by Mortgagee) of any and every nature assessed, imposed or charged on or
against the Subject Premises or the owners or possessors thereof or which may,
if not paid, be or become liens against the Subject Premises superior to the
lien of this Mortgage (less all sums already paid on account thereof) by the
number of months thereafter remaining before the first day of the last full
calendar month prior to the month in which the last date on which such taxes
and other charges may be paid without penalty or interest falls. Such sums
shall be held by Mortgagee without interest to pay the said taxes and other
charges as they become due and payable; provided however, that in the event of
any Event of Default hereunder, Mortgagee may apply any and all sums held on
account of the principal, interest or other sum payable hereunder in such
priority as Mortgagee may determine.
B. At the option of Mortgagee, whether or not an Event of
Default exists hereunder, Mortgagor shall also pay to Mortgagee on the first
day of each month a sum determined by dividing the amount of premiums on all
insurance required from time to time under the terms hereof (less all sums
already paid on account thereof) by the number of months remaining before the
first day of the month prior to the month in which such insurance premiums will
be due. Such sums shall be held by Mortgagee without interest to pay the said
insurance premiums as they become due and payable; provided, however, that if
there exists an Event of Default hereunder, Mortgagee may apply any and all
sums so held on account of the principal, interest, or other sums payable
hereunder in such priority as Mortgagee may determine.
C. The options granted Mortgagee in Paragraph 2A and 2B
hereof may be exercised at any time and from time to time by written notice to
Mortgagor at its last known address in the manner provided herein for notices.
D. Mortgagor grants Mortgagee a lien on and security interest
in any and all monies held by Mortgagee pursuant to Paragraphs 2A and 2B
hereof.
3. PAYMENT OF TAXES AND INSURANCES. During those periods that
Mortgagee does not exercise the options granted in subparagraphs 2A and 2B
hereof, or either of them, Mortgagor shall, without demand or notice:
A. Pay the items referred to in subparagraphs 2A and 2B
hereof with respect to which Mortgagee has not exercised or is not then
exercising its said option when and as they become due and payable, and
B. Furnish Mortgagee with proof of such payment acceptable to
Mortgagee on or before the date they or any of them have become due and
payable. Such proof to include, without limitation, copies of all tax returns,
bills, receipts, notices, and assessments.
C. If Mortgagor fails to comply with the provisions of
subparagraphs 3A and 3B hereof, in addition to all other remedies and rights of
Mortgagee hereunder and at law, Mortgagee may, at its sole option and without
being under any obligation to do so, advance sums from time to time in payment
thereof. All monies so advanced and all monies expended by Mortgagee to obtain
proof of payment of items referred to in subparagraphs 2A and 2B hereof, or the
lack thereof and to facilitate promptly payment thereof shall immediately be
due and payable by Mortgagor to Mortgagee and, if not repaid by Mortgagor, be
added to and be deemed a part of the principal and the amount so added shall
thereafter be fully secured by the lien of this Mortgage and shall bear
interest at the Default Rate.
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4. INSURANCE/CASUALTY.
A. Mortgagor shall keep all buildings and improvements, now
or hereafter erected on the Subject Premises, including all contents, equipment
and inventory which are subject to the lien of this Mortgage or to the security
interest granted herein, continuously insured against such loss or damage as
Mortgagee may require in its sole discretion which policies shall contain
mortgagee endorsement, loss payee and additional insured clauses satisfactory
to Mortgagee. Without limiting the foregoing, Mortgagor shall maintain
insurance policies, underwritten by property and casualty carriers with a
"A/VII" or better rating according to the most recent A. M. Best Property &
Casualty Insurance Guide, as follows unless Mortgagee specifically waives an
insurance provision hereof in writing and such waiver refers specifically by
number and type of insurance to the waived subparagraph below:
(1) Blanket "All-Risks" property insurance
against physical loss or damage to the
Subject Premises at Replacement Cost (no
co- insurance) that includes coverage for
improvements and betterments, Mortgagor's
contents, equipment and inventory, in an
amount not less than the greater of the
original amount of the Notes. The
deductible from any insured property loss
shall not be more than $10,000;
(2) Business interruption, extra expenses, loss
of rents and/or loss of rental value
insurance in amounts equal to a minimum of
six (6) months valuation as determined by
Mortgagee;
(3) If the Subject Premises are in a flood
plain or flood prone area in accordance
with the Federal Flood Disaster Protection
Act of 1973 (Public Law 93-234), as
amended, flood insurance in such amounts as
required under the act;
(4) Comprehensive general liability insurance
for the Subject Premises, including
adjoining streets, sidewalks, passageways
and parking lots, on an occurrence policy
form (not claims made) for the coverages of
Premises/Operations, Bodily Injury and
Property Damage, Products and Completed
Operations, Contractual Liability,
Personal/Advertising Injury with combined
single limits per occurrence not less than
$1,000,000 and Fire Damage Legal Liability
of not less than $100,000. Such liability
insurance policy shall name Mortgagee as an
additional insured;
(5) Umbrella excess liability, following the
form of comprehensive general liability and
other related coverages required hereunder,
with minimum per occurrence and annual
aggregate limits of $5,000,000, if
applicable;
(6) Statutory limits for worker's compensation
insurance and minimum $500,000 for
employer's liability insurance for all
employees of Mortgagor engaged on or with
respect to the Subject Premises. If
Mortgagor engages independent contractors,
then Mortgagor shall be solely responsible
for verifying and maintaining any
appropriate insurance as required by law or
contract for the independent contractors;
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(7) During the course of any construction or
repair or improvement on the Subject
Premises, builder's risk completed value
insurance against "all risks" of physical
loss, including collapse, testing, transit
and equipment/supplies/materials coverages
during construction of such improvements,
in an amount not less than the greater of
the original amount of the Notes, less the
cost of land, as applicable. The policy
deductibles shall not exceed $10,000. If
applicable, such policy shall contain the
"permission to occupy upon completion of
work or occupancy" endorsement;
(8) Builder's risk liability in an amount
satisfactory to Mortgagee;
(9) If appropriate for the Subject Premises,
Boiler and machinery insurance covering
without limitation pressure and
refrigeration objects, mechanical objects,
electrical objects, turbine objects and
production machines, containing joint loss
agreement and Business Interruption/Extra
Expense or Loss of Rents endorsements, in
an amount not less than fifty percent (50%)
of the original amount of the Notes.
(10) Such other insurance, and in such amounts,
as may be required from time to time by
Mortgagee in its sole discretion against
the same or other hazards and liabilities.
B. All insurance policies required of Mortgagor shall protect
and be payable to Mortgagee as its interest may appear. Mortgagee shall have
the right to collect, receive and receipt for any and all monies that may
become payable and collectible upon such policy or policies in the name of the
Mortgagor.
C. All policies of insurance required by the terms of
Paragraphs 4A and 4B shall contain an endorsement or agreement by the insurer
that any loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Mortgagor which might otherwise result
in forfeiture of such insurance and the further agreement of the insurer waving
all rights of set off, counterclaim, or deductions against Mortgagor.
D. All policies of insurance required by the terms of
Paragraphs 4A through 4C shall contain a standard mortgagee clause in favor of
Mortgagee, not subject to contribution, and/or a loss payee clause, in form
satisfactory to Mortgagee in its sole discretion.
E. Upon Mortgagee's request, Mortgagor shall furnish
Mortgagee with a signed duplicate policy with respect to all insurance
coverages specified in Paragraphs 4A through 4D. Mortgagor shall also furnish
Mortgagee with a signed certificate of insurance for each policy setting forth
the coverage, limits and sub-limits, deductibles, the name of the carrier,
policy number and policy period dates. Within thirty (30) days of the
expiration of such policy, Mortgagor shall furnish Mortgagee with evidence
satisfactory to Mortgagee of the payment of the renewal premiums and the
issuance of a new policy continuing insurance in force as required by
Mortgagee.
F. All insurance policies required in Paragraphs 4A through
4E, including policies for any amounts in excess of the required minimum limits
and policies not specifically required by Mortgagee, shall be in form
satisfactory to Mortgagee, shall be maintained in full
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force and effect, and are hereby assigned to Mortgagee, with premiums prepaid,
as collateral security for payment of the indebtedness secured hereby, and
shall contain a provision that such policies will not be cancelled or amended
for reduction in limits or scope, without at least thirty (30) days prior and
separate written notice to Mortgagee. For purposes of this Paragraph 4F a
written notice to the named insured shall not constitute notice to Mortgagee.
If for any reason whatsoever any insurance shall be unsatisfactory to
Mortgagee, Mortgagor shall place new insurance on the Subject Premises,
satisfactory to Mortgagee in its sole discretion.
G. All insurance specified in Paragraphs 4A through 4F shall
be obtained and maintained at Mortgagor's sole cost. If Mortgagor fails to
provide, maintain, keep in force or deliver and furnish to Mortgagee the
insurance required by this Mortgage, Mortgagee may procure such insurance or
similar insurance covering Mortgagee's interest, and Mortgagor will pay all
premiums thereon promptly upon demand by Mortgagee, and until such payment is
made by Mortgagor, the amount of all such premiums, together with interest
thereon at the Default Rate, shall be secured by this Mortgage.
H. In the event of loss, Mortgagor will give immediate notice
thereof to Mortgagee, and Mortgagee may make proof of loss if not made promptly
by Mortgagor and may negotiate settlement of any claims on behalf of Mortgagor.
Each insurance company concerned is hereby authorized and directed to make
payment under such insurance, including return of unearned premiums, directly
to Mortgagee instead of to Mortgagor and Mortgagee jointly, and Mortgagor
irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact to endorse any
draft therefor and to sign any and all proofs of claim, any release and all
other documents relating thereto. Mortgagee shall have the right to retain and
apply the proceeds of any such insurance at its sole option, to reduction of
the indebtedness secured hereby or to restoration or repair of the damaged
property. If Mortgagee elects, in its sole discretion, to permit Mortgagor to
use the proceeds of insurance for either or both repair of and restoration of
the Subject Premises, the funds and such other funds as Mortgagee shall
require, from time to time, shall be deposited with Mortgagee and advanced for
the payment of such repairing, or restoring, of the Subject Premises upon
fulfillment, to the sole satisfaction of mortgagee, of the following
conditions:
(1) Mortgagee shall have first approved the
final plans and specifications for the
repair or restoration of the damaged
property, the contract for such repair or
restoration, and the contractor who will
perform such repair or restoration;
(2) Mortgagor shall have executed and delivered
to Mortgagee an assignment of the
aforementioned contract, which assignment
shall be satisfactory, in form and
substance to Mortgagee in Mortgagee's sole
discretion;
(3) Such contractor shall have delivered to
Mortgagee, prior to the commencement of any
work or labor at the Subject Premises or
the delivery of any materials or supplies
to the Subject Premises such documentation
as Mortgagee shall specify to evidence that
the Contractor has not filed any liens or
notice of unpaid balance and right to file
lien or other form of notice related
thereto under the New Jersey Construction
Lien Law and/or any other applicable
mechanics' lien law including, without
limitation a filed waiver of lien from such
parties as Mortgagee may designate if
permitted by law;
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(4) Mortgagee shall be satisfied, in its sole
discretion, that the insurance proceeds and
such other funds required to be deposited
by Mortgagor with Mortgagee are sufficient
to repair or restore the damaged property
in accordance with the aforementioned final
plans and specifications and that the
restoration can be completed within a time
period acceptable to Mortgagee;
(5) Prior to any disbursement, Mortgagor shall
have satisfied Mortgagee, in Mortgagee's
sole discretion, that the contractor is
entitled to such disbursement for completed
work done in accordance with the
aforementioned plans and specifications and
such work was performed in a workmanlike
manner under the terms of the Mortgagor's
contract with the contractor (or that
Mortgagor has paid such contractor for
completed work done in accordance with the
plans and specifications and in a
workmanlike manner under the terms of the
Mortgagor's contract with the contractor
and is entitled to reimbursement therefor)
and that all persons, firms or corporations
furnishing labor or materials for such work
have been paid, or that arrangements
satisfactory to Mortgagee, in its sole
discretion, have been made for their
payment;
(6) There is no Event of Default existing under
this Mortgage; and
(7) No tenant shall have exercised a right to
terminate its lease on account of the
casualty or shall have had its lease
terminated as a result of the casualty, and
that Mortgagor has provided Mortgagee with
an estoppel certificate from each tenant
confirming that such tenant will not
terminate its lease on account of the
casualty.
Mortgagor shall pay Mortgagee's costs and a fee of 3% of the
amounts of any proceeds disbursed to Mortgagor, which fee Mortgagee may deduct
from the insurance proceeds or such other funds deposited with Mortgagee by
Mortgagor. Any excess proceeds of insurance remaining after the completion of
such restoration or reconstruction shall be used to repay any principal sums
due under the Notes.
Notwithstanding anything contained herein to the contrary,
Mortgagor may require Mortgagee to enter into a separate written agreement
which shall include the aforementioned requirements and such other provisions
as shall be required by Mortgagee in its sole discretion, before Mortgagee
disburses any insurance proceeds for repair or restoration.
I. In the event of any default hereunder resulting in the
divestiture of Mortgagor's title to the Subject Premises, or to any contents,
equipment and inventory subject to this Mortgage, all insurance policies
outlined in Paragraphs 4A through 4H shall automatically and without notice, be
and become sole property of the Mortgagee as of the date of such default and
the Mortgagee shall not be required to grant to Mortgagor any credit against
the indebtedness secured hereby on account of prepaid premiums, if any.
Mortgagee is hereby irrevocably authorized to make, execute, acknowledge and
deliver any documents of transfer for Mortgagor in Mortgagor's name with the
same force and effect as though same had been made by Mortgagor and for that
purpose, Mortgagor hereby irrevocably appoints Mortgagee its attorney-in-fact.
5. MAINTENANCE OF SUBJECT PREMISES. Mortgagor shall keep the Subject
Premises and the buildings and improvements now or hereafter erected and
installed thereon, as well as the
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contents thereof subject to the lien hereof or to financing statements filed in
connection with the Loans secured hereby or necessary for the maintenance or
operation of such buildings and improvements, in good condition and repair and
shall not remove, demolish or materially alter or in any way decrease the value
of the said buildings, improvements, or the Subject Premises or the contents
thereof, or commit or suffer waste with respect thereto. Mortgagor shall comply
with all laws, rules, regulations and ordinances of any lawful authority which
may now or hereafter be applicable to the Subject Premises. Mortgagor shall not
take or permit any action with respect to the Subject Premises, buildings or
improvements or the contents thereof which will in any manner impair the
security of this Mortgage.
6. EVENTS OF DEFAULT. Each of the following shall constitute an event
of default ("Event of Default") hereunder:
A. Failure of Mortgagor to pay any sum whether for principal,
interest, fees, costs or otherwise when and as due under the Notes, the Loan
Agreement, this Mortgage or any of the other Relevant Documents, or under any
other agreement with the Mortgagee;
B. Mortgagor's or any Guarantor's failure to perform or
observe any covenant, term or condition under the Loan Agreement or any of the
Relevant Documents, and such default is not cured within three (3) business
days following written notification of such violation.
C. Any other default on any of the Obligations (as
hereinafter defined) or under any of the Relevant Documents occurs, or any
default occurs under any indebtedness or other obligation of Mortgagor, or of
any Guarantor of any of the Obligations, to any third party which in the
aggregate exceeds One Hundred Thousand Dollars, entitling such third party to
declare such indebtedness or other obligation due prior to its date of
maturity;
D. False Representation or Warranty. Any representation,
warranty or statement contained in this Agreement, in any of the Relevant
Documents or in any other writing delivered to Lender in connection with the
Collateral (as defined in the Loan Agreement) or under this Mortgage, or any of
the transactions contemplated thereby, proves to have been incorrect in any
material respect when made;
E. Mortgagor ceases to do business as a going concern;
F. There occurs any material and adverse change in the
condition or affairs, financial or otherwise, of Mortgagor or of any endorser,
guarantor or surety for any of the Obligations (as hereinafter defined), which
in the reasonable opinion of Lender impairs Lender's security or increases its
risks;
G. At any time Uri Evan ceases to be Chief Executive Officer
or otherwise actively involved in the daily management of Mortgagor.
H. Mortgagor takes any action to authorize its liquidation or
dissolution;
I. Mortgagor (i) becomes unable or fails to pay its debts
generally as they become due, (ii) admits in writing its inability to pay its
debts, or (iii) proposes or makes a composition agreement with creditors, a
general assignment for the benefit of creditors, or a bulk sale;
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J. Any proceeding is instituted by or against Mortgagor (i)
seeking to adjudicate it bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
(ii) seeking appointment of a receiver, trustee, or other similar official for
it or for any substantial part of its property, or Mortgagor takes any action
to authorize or consent to any action described in this paragraph and not
stayed or dismissed within sixty (60) days.
K. One or more judgments or orders for the payment of money
exceeding $100,000.00 in the aggregate are rendered against Mortgagor, and any
such judgment(s) or order(s) continues unsatisfied and not effectively stayed
for a period of thirty (30) consecutive days;
L. Any substantial part of the assets of Mortgagor becomes
subject to attachment, execution, levy or like process which shall not have
been effectively stayed;
M. Any governmental agency, or other entity with power to do
so, commences proceedings to condemn, seizes or expropriates assets of
Mortgagor (unless Mortgagor obtains an injunction against such actions within
thirty (30) days from the date of their commencement) necessary for the conduct
of Mortgagor's business as conducted on the date of this Mortgage, without
material change, or Mortgagor abandons such assets or suspends operation
thereof for a period of thirty (30) consecutive days;
N. With respect to any Plan (as defined in Section 4.17 of
the Loan Agreement), there occurs or exists any of the events or conditions
described in the following clauses (i) through (viii) and such event or
condition, together with all like events or conditions, could in the opinion of
Lender subject Mortgagor to any tax, penalty or other liability that might,
singly or in the aggregate, have a material adverse effect on the financial
condition or the properties or operations of Mortgagor: (i) a reportable event
as defined in Section 4043 of ERISA, (ii) a prohibited transaction as defined
in Section 406 of ERISA or Section 4975 of the Internal Revenue Code, (iii)
termination of the Plan or filing of notice of intention to terminate, (iv)
institution of the Pension Benefit Guaranty Corporation of proceedings to
terminate, or to appoint a trustee to administer, the Plan, or circumstances
that constitute grounds for any such proceedings, (v) complete or partial
withdrawal from a multi-employer Plan, or the reorganization, insolvency or
termination of a multi-employer Plan, (vi) an accumulated funding deficiency
within the meaning of ERISA, (vii) violation of the reporting, disclosure or
fiduciary responsibility requirements of ERISA or the Internal Revenue Code, or
(viii) any act or condition which could result in direct, indirect or
contingent liability to any Plan or the Pension Benefit Guaranty Corporation;
or
O. Any guaranty of any of the Obligations ceases to be
effective or any Guarantor denies liability thereunder.
P. The rendering by any court of last resort of a decision
that any undertaking by Mortgagor as herein provided to pay any tax,
assessment, levy, liability, obligation, or encumbrance is legally inoperative
or cannot be enforced, or the passage of any law changing in any way or respect
the laws now in force for the taxation of mortgages or debts secured thereby
for any purpose or the manner of election of any such tax, so as to affect this
Mortgage or the debt secured hereby, unless Mortgagor pays such tax in
accordance with the provisions of Paragraph 17 hereof;
7. INSPECTION AND APPRAISALS.
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A. Mortgagee and its representatives shall have and hereby
are granted the right and option to enter upon and inspect the Subject Premises
and all books, records and workpapers of Mortgagor at any reasonable time and
from time to time at such frequency as Mortgagee deems prudent. Mortgagee may
select an architect, engineer and/or other qualified party to inspect the
Subject Premises. All costs associated with such inspection shall be the
responsibility of Mortgagor. Mortgagor shall fully cooperate in allowing, from
time to time such examinations, tests, inspections and reviews of the Subject
Premises (collectively, "Examinations and Tests") that Mortgagee, in its sole
and absolute discretion, shall determine to be advisable in order to evaluate
any potential environmental problems. Mortgagee expressly reserves the right to
conduct Examinations and Tests, including but not limited to, a geohydrologic
survey of soil and subsurface conditions, and such other inspections, and
reviews of the Subject Premises as Mortgagee in its sole and absolute
discretion may determine to be desirable. Examinations and Tests shall be for
Mortgagee's protection only and shall not constitute any assumption of
responsibility for the condition, construction, maintenance or operation of the
Subject Premises, nor approval by Mortgagee of any information given to
Mortgagee, nor relieve Mortgagor of any of its obligations. Mortgagee shall
have no obligation to notify Mortgagor of the results of any Examinations and
Tests, and Mortgagee's failure to notify Mortgagor of any default after
Examinations and Tests shall not constitute a waiver of any default then
existing.
B. Mortgagee may, from time to time, in its sole discretion,
but no more frequently than one per year, order an updated appraisal of the
Subject Premises to confirm the value of its remaining collateral, which
appraisal shall be in form and substance satisfactory to Mortgagee, in its
reasonable discretion, and shall be prepared by an appraiser selected by
Mortgagee, in its reasonable discretion. Such appraisal shall be prepared at
the sole cost of Mortgagor. Together with its notification to Mortgagor of its
request for such an appraisal, Mortgagee shall advise Mortgagor of the cost of
such appraisal and Mortgagor shall deposit with Mortgagee the cost of the
appraisal as fixed by the appraiser selected by Mortgagee within fifteen (15)
days after Mortgagee has advised Mortgagor of such cost. If Mortgagor does not
deposit the cost of such appraisal with Mortgagee within said fifteen (15) day
period, Mortgagee may, at its sole discretion, add the cost of such appraisal
to the principal balance of the Notes without liability and shall be released
by Mortgagor of any and all claims relating thereto.
8. REQUIRED FINANCIAL INFORMATION.
A. Mortgagor shall furnish and cause each Guarantor and each
Related Entity (as defined in the Loan Agreement) to furnish to Mortgagee,
financial statements in accordance with the requirements of the Loan Agreement.
B. All information, reports and other papers and data
furnished to Mortgagee are or will be, at the time the same are so furnished,
accurate and correct in all material respects and complete insofar as
completeness may be necessary to give Mortgagee a true and accurate knowledge
of the subject matter. There are no material liabilities of any kind of
Mortgagor as of the date of the most recent financial statements provided to
Mortgagee which are not reflected therein.
9. CONDEMNATION.
A. Any and all rewards heretofore or hereafter made by any
governmental or quasi-governmental authority relating to the Subject Premises
including, without limitation, any award or awards for a taking of title to,
possession of, or any interest in the Subject Premises or any part thereof, or
for any change of grade or streets or interference with access affecting the
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Subject Premises and all awards receivable for any other damage sustained by
Mortgagor or the Subject Premises or any part thereof are hereby irrevocably
assigned, absolutely and unconditionally, to Mortgagee.
B. Mortgagee, at its option, is hereby irrevocably
authorized, directed and empowered to collect and receive the proceeds of all
such awards from the authorities making the same and to give proper receipts
and acquittances therefor and to apply the same, in such priority as Mortgagee
shall determine, to the amount owing on account of the debt secured hereby
(notwithstanding the fact that the amount owing on account of the debt secured
hereby may not be, then due and payable) and/or any other sums due, by
Mortgagor to Mortgagee hereunder. Mortgagor shall, upon demand by Mortgagee,
make, execute, acknowledge and deliver any and all assignments and other
instruments and take such action as may be necessary to assign such awards to
Mortgagee free, clear, and discharged of any and all encumbrances of any kind
and nature whatsoever. In the event Mortgagor shall fail to make, execute,
acknowledge or deliver any and all assignments or other instruments as
aforesaid, Mortgagee may do so in the name of Mortgagor with the same full
force and effect as though such documents were, in fact, made, executed,
acknowledged and delivered by Mortgagor and, for that purpose, Mortgagee is
hereby irrevocably appointed Mortgagor's attorney- in-fact. In the event
Mortgagee deems it appropriate, Mortgagee may, at Mortgagor's sole cost, appeal
the amount of any such award. The cost of such appeal shall be payable upon
demand, shall be secured by the lien hereof; and shall bear interest at the
highest rate set out in the Notes until payment in full of the amounts due to
Mortgagee has been made.
C. If prior to the receipt of such proceeds by Mortgagee, the
Subject Premises shall have been sold on foreclosure of this Mortgage,
Mortgagee shall have the right to receive the proceeds to the extent of: (1)
any deficiency found to be due to Mortgagee in connection with the foreclosure
sale, with interest at the Default Rate thereon, and (2) attorneys' fees,
costs, and disbursements incurred by Mortgagee in connection with collection of
the proceeds and proceedings to establish the deficiency.
10. REMEDIES.
A. Upon the occurrence of any Event of Default by Mortgagor
hereunder or under the Notes or the Relevant Documents, Mortgagee may forthwith
and without notice or demand exercise all rights and remedies provided in this
Mortgage and/or which may be available to Mortgagee by law or in equity and all
such rights and remedies shall be cumulative and concurrent and may be pursued
singularly, successively or together, at Mortgagee's sole option, and may be
exercised as often as occasion therefor shall occur. Upon the existence of an
Event of Default as aforesaid, Mortgagee may, inter alia, notwithstanding
anything to the contrary contained herein:
(1) Declare the entire principal amount secured
hereby immediately due and payable; and/or
(2) Take possession of the Subject Premises,
buildings, and improvements and the
contents thereof and all other security for
payments to Mortgagee hereunder without the
necessity of foreclosing or other legal
action and may change locks if necessary to
gain entry or secure the Subject Premises,
without the same being a trespass; and
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(a) hold, manage, operate and
lease the same to
Mortgagor or any other
person, firm or
corporation on such terms
and for such periods of
time as Mortgagee may deem
proper, and the provisions
of any lease made by
Mortgagee pursuant hereto
shall be valid and binding
upon Mortgagor
notwithstanding the fact
that Mortgagee's right of
possession may terminate
or this Mortgage may be
satisfied of record prior
to the expiration of the
term of such lease.
(b) have all remedies under
Part 5 of Article 9 of The
Uniform Commercial Code of
the state in which the
Subject Premises are
situated and, in
connection therewith,
Mortgagor agrees that not
less than (3) days' notice
of sale is commercially
reasonable notice:
(c) make such alterations,
additions, improvements,
renovations, repairs, and
replacements thereto as
Mortgagee may deem proper,
including remodeling to
make the same more readily
rentable, useable, and/or
available in whole or in
part for commercial,
residential, and/or
industrial purposes,
(d) demolish all or any part
of the buildings and
improvements now or
hereafter erected or
situate upon the Subject
Premises which, in the
sole judgment of
Mortgagee, may be in
unsafe conditions and
dangerous to life or
property; and/or
(e) collect the rents, issues,
and profits (hereinafter
collectively referred to
as "rents") arising from
the Subject Premises and
the buildings and
improvements thereon, past
due and thereafter
becoming due, and apply
the same, in such order of
priority as Mortgagee may
determine, to the payment
of all charges and
commissions incidental to
the collection thereof and
the management and
maintenance of the Subject
Premises, the buildings
and improvements thereon,
and the contents thereof
and to the payment of all
sums required to be paid
by the Mortgagor
hereunder, as more fully
described in Paragraph 14
hereof.
(3) File forthwith a complaint in
mortgage foreclosure or any other
foreclosure proceeding upon this
Mortgage and proceed thereon to
judgment and execution for the
recovery of the whole of the
principal debt, or any unpaid
balance thereof and all interest
due thereon and other sums due
hereunder, together with reasonable
attorneys' fees for collection,
besides costs of suit, and all
expenses of paying taxes, water
rents, assessments, and charges,
and effecting
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insurance, repairs, and compliance
with the terms of the Mortgage,
with interest thereon, without
further stay, any law, usage
or custom to the contrary
notwithstanding.
(4) Bring an appropriate action at any
time and from time to time to
recover any sums required to be
paid by Mortgagor under the terms
of this Mortgage, as they become
due, without regard to whether or
not the principal indebtedness or
any other sums secured by this
Mortgage shall be due, and without
prejudice to the right of Mortgagee
thereafter to bring an action of
mortgage foreclosure, or any other
action, for any Event of Default
committed or suffered by Mortgagor
existing at the time earlier action
was commenced.
(5) Institute and maintain at any time
and from time to time any suits and
proceedings as Mortgagee may deem
advisable;
(a) to prevent any impairment
of the security of the
Subject Premises by any
acts which may be unlawful
or any violation of this
Mortgage,
(b) to preserve or protect its
interest in the Subject
Premises, and
(c) to restrain the
enforcement of or
compliance with any
legislation or other
governmental enactment,
rule or order that may be
unconstitutional or
otherwise invalid, if the
enforcement of or
compliance with such
enactment, rule or order
might impair the security
hereunder or be
prejudicial to Mortgagee's
interest.
(6) At its option, advance and pay any
sum of money that, in the judgment
of Mortgagee, may be necessary to
perfect the title of the Subject
Premises in Mortgagor; or to
preserve the security intended to
be given by this Mortgage and by
the assignment of leases given by
Mortgagor to Mortgagee; or to
satisfy any tax, imposition or
charge levied upon the debt for
which this Mortgage is given as
security.
(7) Institute and to prosecute to final
determination or settlement an
appeal of any real estate tax
assessment or other lien or
assessment on the Subject Premises,
or take any other appropriate
proceedings in the name of
Mortgagee or Mortgagor in
connection therewith. Mortgagee is
hereby appointed as
attorney-in-fact for Mortgagor, for
such purposes, which appointment is
irrevocable (said appointment being
coupled with an interest). If such
an appeal or other proceeding is
taken, the expenses thereof,
including counsel fees, shall be
payable by Mortgagor to Mortgagee
upon demand and such sums shall
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be secured by this Mortgage.
Mortgagee shall have the right to
take such action regardless of
whether Mortgagor has instituted
its own action(s). In the event
both Mortgagor and Mortgagee have
instituted actions, the Mortgagee
shall have the sole right to
determine which action shall
proceed; and if Mortgagee elects to
proceed with its action, Mortgagor
shall withdraw and terminate any
procedures Mortgagor has commenced.
Mortgagee shall have no liability
related to any such actions,
including liability for any
increase of taxes that may result
therefrom, and Mortgagor waives any
claims, actions or other rights
that it may have against Mortgagee
in such connection.
B. All delinquent payments hereunder and all monies advanced
by Mortgagee as a result of the occurrence of an Event of Default hereunder or
for any other purpose authorized in this Mortgage, in the Notes, in the Loan
Agreement, or in any of the other Relevant Documents shall be repaid to
Mortgagee with interest at the Default Rate from the date advanced by
Mortgagee, until such time as said sums are paid, including, without
limitation, the period following entry of any judgment, shall without demand be
repaid by Mortgagor to Mortgagee, and, if not repaid immediately, shall bear
interest at the rate aforesaid, and the sum due shall be secured by the lien
hereof.
C. Mortgagee, without regard to the value or occupancy of the
security or the solvency of Mortgagor, shall be entitled as a matter of right,
if it so elects, to the appointment of a receiver to enter upon and take
possession of the Subject Premises and to collect all rents, revenues, issues,
income, products, and profits thereof and apply the same as the court may
direct. The receiver shall have all rights and powers permitted under the laws
of the state where the Subject Premises are located and such other powers as
the court making such appointment shall confer. The expenses, including,
without limitation, receiver's fees, attorneys' fees, court costs, and agent's
compensation, incurred pursuant to the powers herein contained shall be secured
by the lien of this Mortgage. The right of a receiver to enter and take
possession of and to manage and operate the Subject Premises, and to collect
the rents, issues and profits thereof shall be cumulative to any other rights
or remedy hereunder or afforded by law, and may be exercised concurrently
therewith or independently thereof. Notwithstanding the appointment of any
receiver or other custodian, Mortgagee shall be entitled as pledgee to the
possession and control of any cash, deposits, or instruments at the time held
by, or payable or deliverable under the terms of this Mortgage to Mortgagee.
D. In the event Mortgagee shall refer the Notes, the Loan
Agreement, this Mortgage, or any of the other Relevant Documents to counsel
because of or in connection with any default thereunder or hereunder or because
any action or proceeding is instituted by or against Mortgagee or others, or
threatened affecting the Subject Premises or the title thereto or Mortgagee's
interest hereunder in the Notes, in the Loan Agreement, or in any of the other
Relevant Documents whether or not Mortgagee is or becomes a party thereto or
for any other reason whatsoever, Mortgagor shall reimburse Mortgagee for all
attorneys' fees and costs incurred in connection therewith, whether or not suit
is in fact commenced and whether or not an Event of Default exists or is
declared hereunder, under the Notes, under the Loan Agreement, or under any of
the other Relevant Documents. Such reimbursement shall be due and payable
immediately upon demand and the amount thereof shall be secured by the lien
hereof and shall bear interest at the Default Rate until paid.
E. Any real estate sold pursuant to any writ of execution
issued on a judgment obtained by virtue of the Notes, this Mortgage, the Loan
Agreement, any of the other Relevant
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Documents, or pursuant to any other judicial proceedings under this Mortgage,
the Notes, the Loan Agreement, or any of the other Relevant Documents, may be
sold in one parcel as an entirety, or in such parcels, and in such manner or
order as Mortgagee, in its sole discretion, may elect. Upon any such
foreclosure sale, Mortgagee may bid for and purchase the Subject Premises and,
upon compliance with the terms of sale, may hold, retain, possess and dispose
of such Subject Premises in its own absolute right without further
accountability. Mortgagee is hereby irrevocably authorized, at its option, to
conduct any such sale subject to the rights of any tenants of the Subject
Premises, and the failure to make any such tenants parties defendant to any
such foreclosure proceedings and to their rights will not be, nor be asserted
by Mortgagor to be, a defense to any proceedings instituted by Mortgagee to
collect the sums secured hereby. All remedies provided Mortgagee under this
Mortgage or otherwise shall survive the consummation of any foreclosure sale.
F. Any failure by Mortgagee to insist upon strict performance
by Mortgagor of the Notes, this Mortgage, the Loan Agreement, or any of the
other Relevant Documents, shall not be deemed to be a waiver thereof, and
Mortgagee shall have the right thereafter to insist upon strict performance by
Mortgagor. Any waiver by Mortgagee of any breach by Mortgagor of any term,
covenant, agreement, or condition contained herein shall not be valid unless in
writing signed by an officer of Mortgagee, and such waiver shall not affect the
right of Mortgagee thereafter to exercise all rights or remedies set forth
herein or available at law or in equity on account of a subsequent Event of
Default hereunder.
G. The grant of an extension or extensions of time by the
Mortgagee with respect to the performance of any provision of this Mortgage,
the Notes, the Loan Agreement, or any of the other Relevant Documents on the
part of the Mortgagor to be performed, or taking of any additional security, or
the release of any security, or the waiver of the Mortgagee or failure by the
Mortgagee to enforce any provision of this Mortgage, the Notes, the Loan
Agreement or any of the other Relevant Documents, or to declare a default with
respect thereto, shall not operate as a waiver of any subsequent default or
defaults or affect the right of the Mortgagee thereafter to exercise all rights
or remedies stipulated herein and therein on account of such default or any
subsequent default or defaults.
11. MORTGAGOR'S WAIVERS. Mortgagor hereby irrevocably waives and
forever releases:
A. All errors, defects, and imperfections in any proceeding
instituted by Mortgagee under the Notes, this Mortgage, the Loan Agreement, or
any of the other Relevant Documents;
B. All benefit that might accrue to Mortgagor by virtue of
any present or future law exempting the Subject Premises, or any part of the
proceeds arising from any sale thereof, from attachment, levy, or sale on
execution, or providing for any stay of execution, exemption from civil
process, or extension of time for payment; and
C. Unless specifically required herein, all notices of
Mortgagor's default or of Mortgagee's election to exercise, or Mortgagee's
actual exercise of any option under the Notes, this Mortgage, the Loan
Agreement, or any of the other Relevant Documents, or any other documents,
instruments, agreements, guarantees, or other writings executed or delivered in
connection herewith or in connection with the Obligations (as hereinafter
defined) secured hereby.
12. NO TRANSFER OR LIENS.
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A. If all or any part of the Subject Premises or any interest
therein, or any interest in a corporation or partnership or other entity owning
any interest in the Subject Premises, or in any Guarantor, is sold, transferred
or changed ("Prohibited Change") without Mortgagee's written consent, Mortgagee
may at Mortgagee's option, declare all sums secured by this Mortgage to be
immediately due and payable. Such Prohibited Change shall include, without
limitation:
(1) changes in the equitable title or
beneficial ownership of the Subject
Premises, whether or not recorded,
including without limitation, entering into
an installment sale agreement with respect
to the Subject Premises.
(2) voluntary or involuntary transfers of any
freehold interest in the Subject Premises,
whether by operation of law or otherwise.
(3) transfer of a beneficial interest in the
Subject Premises for which a straw party is
acting as nominal title holder or agent.
(4) transfer by an installment purchaser
purchasing the Subject Premises from an
industrial development authority of such
installment purchaser's interest in the
Subject Premises.
(5) transfer of any of the existing stock or
issuance of new stock or the transfer or
issuance of any other interest in a
corporation, or transfer of any partnership
interest in a partnership, or transfer of
any member or manager interest in any
limited liability company, or the transfer
of any interest in any other entity which
is Mortgagor or a Guarantor.
(6) transfer of any stock or of any other
interest in a corporation, partnership,
limited liability company or other entity
which holds such leasehold interest in the
Subject Premises, or
(7) transfer or termination of a leasehold
interest in the Subject Premises which
leasehold interest is held by an entity in
which Mortgagor has any interest directly
or indirectly, beneficially or legally.
Such Prohibited Change shall not include a transfer or change by devise,
descent, or operation of law upon the death of a joint tenant, partner or
shareholder unless the death is of Mortgagor or of a principal of Mortgagor or
an individual Guarantor or a principal of an entity which is the Mortgagor or a
Guarantor in which event such death shall constitute an Event of Default unless
Mortgagee is provided with a substitute Mortgagor or Guarantor or alternative
collateral satisfactory to Mortgagee in its sole discretion within ninety (90)
days after such death. The Mortgagor shall immediately give notice of any such
Prohibited Change to the Mortgagee by registered or certified mail. As used in
this Paragraph 12 the term "transfer" shall be deemed to mean and refer to any
transfer, encumbrance, sale, pledge, assignment or conveyance of the interest
or item in question.
B. Mortgagor shall not create or cause to permit to exist any
lien on, or security interest in the Subject Premises or any portion thereof,
whether junior or senior to the lien of this Mortgage, except that Mortgagor
shall be permitted to grant the Second Mortgage in
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favor of 101 Realty to secure the maximum principal sum of $4,000,000.00 and
accrued interest thereon. Any violation of the foregoing limitation, except as
otherwise provided in this Paragraph, at the option of Mortgagee, shall be
deemed an Event of Default hereunder. If any mechanic's, materialman's or
construction lien or notice of unpaid balance and right to file lien or other
claim of mechanic's, materialman's or construction lien shall be filed against
the Subject Premises or any portion thereof or any interest therein by reason
of work, labor, services, or materials supplied or claimed to have been
supplied, and if such mechanic's, materialman's or construction lien or claim
of mechanic's, materialman's or construction lien or notice is not fully and
finally released against the Subject Premises within fifteen (15) days after
such lien, notice or claim of lien shall have been filed, then Mortgagee, at
its option, may (a) pay and discharge the lien or other item so filed, in which
case any sum which Mortgagee shall have so advanced in connection therewith
shall be due immediately from Mortgagor to Mortgagee, shall be secured hereby,
and shall bear interest at the Default Rate from the date of payment by
Mortgagee until the date of repayment, and Mortgagee shall be subrogated to any
rights, equities and liens so discharged; and/or (b) treat such occurrence as
an Event of Default hereunder.
13. ACTIONS AGAINST MORTGAGEE. If the Mortgagee shall become a party
to any proceedings, whatsoever, including condemnation proceedings instituted
by any party authorized by law to file same, by reason of its status as
Mortgagee herein, whether to protect its security or otherwise, all expenses
incurred by it in connection therewith, including attorney's fees, shall be
added to and become a part of the principal indebtedness secured hereby and
shall be immediately due and payable. All sums so advanced by the Mortgagee
shall bear interest at the Default Rate and shall be secured by the lien
hereof.
14. ASSIGNMENT OF RENTS, ISSUES AND PROFITS.
A. Mortgagor does hereby irrevocably assign and set over unto
Mortgagee all right, title and interest of Mortgagor in any and all leases,
licenses or other grants of right to use the Subject Premises or any portion
thereof, now existing or hereafter entered into and all rents, issues and
profits of and from the Subject Premises as additional security for the
indebtedness and other items hereby secured, for the purpose of keeping said
Subject Premises, buildings and improvements and/or the contents thereof in
proper order and repair, and for the purpose of protecting the security of
Mortgagee, and Mortgagee is hereby given a prior and continuing lien thereon.
Mortgagor does hereby irrevocably appoint Mortgagee and/or its attorney or
agent to collect said rents, without suit, and apply the same, less all
expenses of collection, to the said indebtedness, to management, maintenance
and repair of the Subject Premises and the contents thereof, and to protecting
the security of Mortgagee in such manner as Mortgagee may elect; provided,
however, that until there occurs an Event of Default under the terms of this
Mortgage, Mortgagor may continue to collect and enjoy the current rents without
accountability to Mortgagee. During any period that Mortgagee collects rents
pursuant to this paragraph, Mortgagee shall be entitled to retain ten percent
(10%) of such rents in payment for the services of the Mortgagee in relation to
the Subject Premises, which sum Mortgagor agrees is a fair and reasonable
charge. The taking of possession and collection of rents by Mortgagee as
aforesaid shall not be construed to be an affirmation of or acceptance of any
attornment with respect to any lease of the Subject Premises or any part
thereof. Mortgagee or any other purchaser at any foreclosure sale may (if
otherwise entitled to do so) exercise the right to terminate any such lease as
though such taking of possession and collection of rents had not occurred.
Mortgagee shall be liable to account only for such rents, issues, and profits
as are actually received by Mortgagee.
B. In connection with the foregoing, Mortgagor hereby
irrevocably authorizes Mortgagee to endorse Mortgagor's name on checks, bank
drafts, and other instruments received in payment of the rents. Mortgagee may
notify the United States Postal Service to deliver to Mortgagee all mail
addressed to Mortgagor and Mortgagee may take possession of and open any
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mail addressed to Mortgagor whether on the Subject Premises or elsewhere, in
order to effect collection of rents and to remove, collect and apply all
payments therein contained. This Mortgage shall be sufficient to authorize the
United States Postal Service, its agents, servants and employees, subagents,
subcontractors and independent contractors of and for the delivery of
Mortgagor's mail to Mortgagee. This assignment of rents and these powers of
attorney are coupled with an interest; shall be in addition to all other
remedies herein and by law provided for upon an Event of Default; and may be
put into effect independently of or concurrently with any or all of said
remedies. No liability shall attach to Mortgagee for failure, refusal or
inability to collect any rents herein assigned, for the manner of collection
thereof or for the failure on the part of Mortgagee to perform any of
Mortgagor's obligations as landlord under any existing or future lease. This
assignment, lien and power of attorney shall apply to all rents heretofore or
hereafter accruing from present and future leases and renewals thereof of all
or any part of the Subject Premises or the buildings and improvements thereon.
15. LEASES.
A. Any default by Mortgagor or any successor in interest of
Mortgagor under the terms of any lease of all or any part of the Subject
Premises or the buildings and improvements thereon shall constitute an Event of
Default hereunder, under the Notes, the Loan Agreement, or any of the other
Relevant Documents, entitling Mortgagee to exercise all the rights granted to
it herein, therein and by law.
B. Mortgagor shall send to Mortgagee, immediately upon
receipt thereof by Mortgagor, in writing in the manner provided herein for
notices, a true copy of any notice received by it from any tenant which alleges
a default by Mortgagor, as landlord, under any such lease and shall send to
Mortgagee, in writing, in the manner provided herein for notices, copies of all
notices of default sent to tenants of the Subject Premises.
C. Mortgagor or any successor in interest of Mortgagor shall
include provisions in all leases of the Subject Premises or any part thereof or
any interest therein or the buildings and improvements thereon or any part
thereof or any interest therein requiring lessees under any such leases to send
to Mortgagee a true copy of any notice sent to Mortgagor alleging a default
under any such lease. Such notice shall be sent in the manner provided herein
for notices. Mortgagor shall include provisions in all such leases granting
Mortgagee a period of sixty (60) days from the receipt of such notice in which
to cure any such default before such lessee may terminate its lease.
D. Mortgagor shall not accept any prepayment of any rent
payments under any leases of the Subject Premises or the buildings and
improvements thereon more than fifteen (15) days in advance of the due date of
such payment except with the prior written approval of Mortgagee.
E. In the event of Mortgagor's breach of any covenant in any
lease to which the Subject Premises or the buildings and improvements thereon
or any part thereof may, from time to time, be subject or of Mortgagor's breach
of any covenant in any assignment of any such lease and irrespective of whether
Mortgagee accelerates the maturity of the indebtedness secured hereby in
accordance herewith and in addition to, and without limitation on, any other
rights granted to Mortgagee hereunder, Mortgagee may at its option, without
notice, take such action as it deems necessary or appropriate to correct any
such default, including exercise of the right hereby granted to enter upon and
take possession of the Subject Premises and the buildings and improvements
thereon or any part thereof. Any and all costs, charges, fees or expenses,
including, without limitation, attorney's fees, incurred by Mortgagee in
connection with the taking
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of such corrective action pursuant to the powers herein contained shall be
secured hereby and shall bear interest at the Default Rate until paid.
F. Mortgagor shall furnish to Mortgagee an executed original
of each lease, amendment, extension, or renewal within (5) days after the date
of execution thereof. All leases, now or hereafter executed, shall be and
remain subject and subordinate to this Mortgage, Mortgagee shall have the
right, at its sole option, to pre-approve all leases and any amendment,
extension or renewal thereof, the form of such leases and credit of tenants
under such leases, and no lease shall be effective unless Mortgagee approves
such lease in advance or waives in writing, its rights to approve such lease.
16. SECURITY INTEREST.
A. Mortgagor shall not replace or supplement any furniture,
furnishings, machinery or equipment now or hereafter installed or located on
the Subject Premises with any other furniture, furnishings, machinery, or
equipment which is subject to a security interest of any type without the prior
written consent of Mortgagee. Any default by Mortgagor under this provision
shall be a material breach of Mortgagor's covenants under this Mortgage, the
Notes, the Loan Agreement, and the other Relevant Documents, and the other
documents, agreements, instruments or other writings entered into in connection
herewith or in connection with the obligation secured hereby and shall, at the
option of Mortgagee, constitute an Event of Default hereunder and thereunder
entitling Mortgagee to all rights and remedies provided herein, therein, or by
law in the event of an Event of Default under any of the terms and provisions
hereof or of the Notes, of the Loan Agreement, or of the other Relevant
Documents. Any security interest of a third person in any such furniture,
furnishings, machinery, or equipment shall be subordinate to the lien of this
Mortgage, any law or decision to the contrary notwithstanding.
B. From time to time, upon demand made by Mortgagee,
Mortgagor shall, with fifteen (15) days following the date of any such demand,
execute and deliver to Mortgagee a security agreement and financing and
continuation statements, in form and substance satisfactory to Mortgagee,
covering all of Mortgagor's right, title and interest in and to all furniture,
furnishings, fixtures, and equipment then attached to, installed or located in
or used in connection with the operation of any portion or all of the Subject
Premises, the replacements and proceeds thereof. The cost of preparing and
filing such financing and continuation statements and preparing such security
agreements shall be paid by Mortgagor to Mortgagee upon demand, shall bear
interest at the Default Rate until paid, and shall be secured by the lien
hereof. Mortgagor hereby irrevocably consents to the making and filing of any
and all continuation statements deemed necessary by Mortgagee. If Mortgagor
shall fail for any reason to execute and deliver financing statements
hereunder, Mortgagee may execute, deliver and file such financing statements
and Mortgagor appoints Mortgagee as its attorney-in-fact for the purpose of
executing, delivering and filing such financing statements. This power of
attorney is coupled with an interest and is irrevocable. A carbon,
photographic, or other reproduction of this Mortgage, or any financing
statement relating hereto, shall be sufficient as a financing statement and may
be filed in any public office as a financing statement.
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17. FUTURE TAXES.
A. In the event of the passage after the date of this
Mortgage of any law deducting from the value of the Subject Premises for the
purposes of taxation any lien thereon or changing in any way the laws now in
force for the taxation of mortgages or debts secured by mortgages for state or
local purposes or the manner of the collection of any such taxes so as to
affect this Mortgage, or if, at any time, the United States Government, or any
other governmental subdivision, shall require state or federal documentary
stamps hereon, or on the Notes, on the Loan Agreement, or on any of the other
Relevant Documents (or if any of them shall be subject to any similar levy),
the entire principal indebtedness and all other sums required to be paid by
Mortgagor hereunder shall become due and payable at the option of Mortgagee
thirty (30) days after the mailing of notice of such election to Mortgagor;
provided, however, that exercise of that option shall be ineffective and this
Mortgage, the Notes, the Loan Agreement, and other Relevant Documents shall be
and remain in effect if Mortgagor lawfully may pay for such stamps or such tax
including interest and penalties thereon to or for Mortgagee and does in fact
pay, when due, for all such stamps or such tax, as the case may be.
B. No owner of the Subject Premises or holder of any lien
subordinate to the lien of this Mortgage shall be entitled to any credit with
respect to principal or interest of the debt hereby secured by reason of the
payment of any tax on said Subject Premises, the obligation secured hereby, or
the interest payable thereon.
C. In the event any Federal, state or local law, ordinance or
regulation shall require the withholding by Mortgagor of any portion of the
interest payable hereunder on account of any tax claims of any such
governmental unit, Mortgagor shall be responsible for the payment of same but
shall, nevertheless, make the payments to the Mortgagee in the full amount
required hereunder without any deduction from the principal or interest
payments for or on account of any such tax or interest and Mortgagee shall, and
is hereby authorized to, upon receipt of such payments, set aside the required
portion thereof in a special account for the payment of such withholding taxes
and shall, when the same becomes due, pay the same over to the appropriate
taxing authority. Mortgagor shall deliver to Mortgagee, at least thirty (30)
days before each such payment shall become due, completed and executed tax
returns to be filed with such payments.
18. DECLARATION OF NO SET-OFF. At any time and from time to time,
Mortgagor shall certify to such persons as Mortgagee may designate, by writing
duly acknowledged, the amount of principal and interest then owing on this
Mortgage and what, if any, offsets and defenses exist against the mortgage debt
within three (3) days after written request to do so served upon it by mail,
and shall cause all tenants of the Subject Premises to execute estoppel
certificates declaring that they have no rights of set off and no defenses to
their respective leases.
19. ENVIRONMENTAL REPRESENTATIONS, COVENANTS, AND INDEMNIFICATION.
A. Mortgagor hereby represents, warrants and covenants to
Mortgagee that, except as disclosed in the Loan Agreement (including, without
limitation, Schedule 4.19) and the Administrative Consent Order (the "ACO")
entered into between the New Jersey Department of Environmental Protection and
The Okonite Company ("Okonite") dated August 3, 1990 (under which Okonite is
responsible to remediate the Subject Premises): (i) the following are all of
the Standard Industrial Classification Codes applicable to the properties and
operations of Mortgagor: 2841; (ii) Mortgagor is in compliance with all
applicable Environmental Laws (as hereinafter defined); (iii) there has been no
contamination or release of hazardous substances, at, upon, under or within the
Subject Premises or, to the best of Mortgagor's knowledge, at, upon, or within
any other property owned, operated or leased by Mortgagor in New Jersey, and
there has been no
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contamination (as defined in any applicable Environmental Law) or release of
hazardous substances (as defined in any applicable Environmental Law) on any
other property that has migrated or threatens to migrate to the Subject
Premises or, to the best of Mortgagor's knowledge, to any other property owned,
operated or leased by Mortgagor in New Jersey; (iv) there are not now and never
have been above-ground or underground storage tanks at the Subject Premises or,
to the best of Mortgagor's knowledge, at any other property owned, operated or
leased by Mortgagor in New Jersey; (v) there are no transformers, capacitors,
or other items of Equipment containing polychlorinated biphenyls at levels in
excess of 49 parts per million, violative of applicable Environmental Law, at
the Subject Premises or, to the best of Mortgagor's knowledge, at any other
property owned, operated or leased by Mortgagor in New Jersey; (vi) other than
materials used or produced, held, transported and disposed of in accordance
with Environmental Laws, Mortgagor's operations at the Subject Premises, or at
any other properties owned, operated or leased by Mortgagor in New Jersey have
never been used by Mortgagor (or, to the best knowledge of Mortgagor after due
inquiry, by any predecessor in possession or other Person as defined in the
Loan Agreement) for treatment, generation, storage, recycling, or disposal of
hazardous substances; (vii) no hazardous substances are present at the Subject
Premises or, to the best of Mortgagor's knowledge, at any other property owned,
operated or leased by Mortgagor in New Jersey, nor will any hazardous
substances be present upon any such property or utilized in the operation
thereof by Mortgagor except which are transported, used, stored, disposed of
and otherwise handled in accordance with all Environmental Laws, in proper
storage containers; (viii) all permits and authorizations required under
Environmental Laws for all operations of Mortgagor at the Subject Premises or
at any other properties owned, operated or leased by Mortgagor in New Jersey
have been duly issued and are in full force and effect, including but not
limited to those for air emissions, water discharges and treatment, storage
tanks and the generation, treatment, storage and disposal of hazardous
substances; (ix) there are no pending or threatened Environmental Claims (as
defined in the Loan Agreement) against Mortgagor or any property owned,
operated or leased by Mortgagor in New Jersey; and Mortgagor has not created or
caused any condition or occurrence with respect to any property owned, operated
or leased by Mortgagor in New Jersey that could reasonably be anticipated (x)
to form the basis of an Environmental Claim against Mortgagor or its properties
or (y) to cause the Subject Premises or any other property owned, operated or
leased by Mortgagor in New Jersey to be subject to any restrictions on its
ownership, occupancy or transferability under any Environmental Law; (x) no
notice relating to hazardous substances is contained in any deed relating to
Subject Premises and there are no facts or conditions on any such property that
would require that such a notice be placed in the deed to any such property;
and (xi) no portion of the Subject Premises or, to the best of Mortgagor's
knowledge, any other property owned, operated or leased by Mortgagor in New
Jersey, contains asbestos-containing material that is or threatens to become
friable.
B. Subject to Okonite's primary responsibility to remediate
the Subject Premises pursuant to the ACO, for all Hazardous Substances (as
defined herein) at any time located on any of the Mortgagor's Real Property
(defined as the Subject Premises together with any real property owned, leased,
or operated by Mortgagor), Mortgagor shall take or cause to be taken, at
Mortgagor's sole expense, all such actions as may be necessary to comply with
all Environmental Requirements (as defined herein) including, without
limitation, any actions necessary to restore the Subject Premises to its
preexisting condition following the release of a Hazardous Substance. If
Mortgagor shall fail to take all such actions, Mortgagee may make advances or
payments towards performance or satisfaction of the same (but shall be under no
obligation so to do) and all sums so advanced or paid, including all sums
advanced or paid by Mortgagee in connection with any judicial or administrative
investigation or proceedings relating thereto (including, but without
limitation, reasonable attorneys' fees, fines or other penalty payments), shall
be immediately repayable by Mortgagor and all sums so advanced or paid shall
become a part of the Obligations (as hereinafter defined) secured by this
Mortgage. Any failure of
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Mortgagor to comply with all Environmental Requirements shall constitute and be
an Event of Default hereunder.
C. Mortgagor hereby agrees that Mortgagor shall at all times
hereafter at Mortgagor's sole cost and expense absolutely and unconditionally
indemnify and hold Mortgagee, its parents, subsidiaries, successors, endorsees,
and assigns, and any officer, director, shareholder, employee or agent of
Mortgagee, harmless from and against all Damages (as defined herein); any
failure of any of Mortgagor's Real Property to comply in all respects with the
Environmental Requirements; or a breach by Mortgagor of any representation or
covenant contained herein.
D. Mortgagor shall promptly after acquiring knowledge thereof
give notice and a full description to Mortgagee in writing of (i) any
governmental or regulatory actions instituted or threatened in writing under
any Environmental Requirements affecting the Subject Premises or any
indemnification hereunder including, without limitation, any notice of
inspection, abatement or non-compliance, (ii) all claims made or threatened in
writing by any third party against Mortgagor or the Subject Premises relating
to any Hazardous Substance or a violation of any Environmental Requirements,
and (iii) Mortgagor's discovery of any occurrence or condition on the Subject
Premises or any real property adjoining or in the vicinity of the Subject
Premises which could subject the Subject Premises to a claim under
Environmental Requirements or to any restrictions on ownership, occupancy,
transferability or use of the Subject Premises under any Environmental
Requirements. Mortgagor shall deliver to Mortgagee any documentation or records
regarding the above as Mortgagee may request.
E. The representations, covenants, and indemnification
contained in this Paragraph 19 shall survive the occurrence of any event
whatsoever including, but not limited to, the payment of the Obligations (as
hereinafter defined) secured by this Mortgage.
F. For purposes of this Paragraph 19:
(1) "Damages" shall mean all liabilities,
obligations, claims, demands, suits,
controversies, actions, causes of action,
orders, writs, and judgments including,
without limitation, costs, expenses,
attorneys' fees, consultants' fees,
environmental cleanup costs, natural
resources damage, fines, penalties,
consequential damages, injury, death or
other damages to person(s), personal or
real property, and business enterprises,
now or in the future, as determined by
Mortgagee in its sole discretion, arising
out of or relating to any environmental
condition related to the Subject Premises
including, but not limited to:
(a) any actual or threatened release of
any Hazardous Substance (as defined
herein);
(b) any violation of any federal, state
or local environmental law that is
caused, suffered, allowed or
permitted by Mortgagor; or
(c) any other condition that may cause
Mortgagee to sustain any damages,
regardless of whether such
environmental condition resulted
from any act or omission of
Mortgagor, Mortgagee, one or more
third parties or some combination
thereof including, but without
limitation, any negligence of
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Mortgagee whether heretofore, now
or hereafter existing or occurring.
(2) "Environmental Claim(s)" shall mean any
claim, suit, notice, order, demand or other
communication made by any Person to
Mortgagor or any of its properties, whether
owned or leased, that: (i) asserts a
violation of an Environmental Law; (ii)
asserts a liability under an Environmental
Law; (iv) demands information under an
Environmental Law; (v) alleges personal
injury or property damage resulting from
Hazardous Substances; or (vi) alleges that
there is or may be contamination.
(3) "Environmental Law(s)" shall mean any
Governmental Rule (as defined in the Loan
Agreement) concerning protection or
regulation of the discharge of substances
into the environment, including but not
limited to those concerning air emissions,
water discharges and treatment, storage
tanks, and the handling, generation,
treatment, storage and disposal of waste
materials, chemical substances, pollutants,
contaminants, toxic substances, pathogens,
radioactive materials or hazardous
substances of any kind, whether solid,
liquid or gaseous, including without
limitation the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. ss.6901 et
seq., the Federal Water Pollution Control
Act, 33 U.S.C. ss.1251 et seq.,; the Clean
Air Act, 42 U.S.C. ss.7401 et seq.; the
Hazardous Materials Transportation Act of
1975, 49 U.S.C. ss.ss.1801-1812; the Toxic
Substances Control Act, 15 U.S.C. ss.2601
et seq.; the Federal Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C. ss.136 et
seq.; the Safe Drinking Water Act, 42
U.S.C. ss.300 et seq.; and each as amended
and as now or hereinafter in effect, and
their state and local counterparts or
equivalents, including any regulations
promulgated thereunder.
(4) "Environmental Requirements" shall mean any
and all applicable federal, state or local
environmental laws, statutes, ordinances,
regulations or standards, or administrative
or court orders or decrees, or private
agreements now or hereafter in effect
including without limitation the New Jersey
Industrial Site Recovery Act and the New
Jersey Spill Compensation and Control Act
as any or all of them may be amended,
supplemented or modified subsequent to the
date hereof.
(5) "Governmental Authority" shall mean any:
(a) nation, state, government,
jurisdiction or jurisdictional
authority (domestic, foreign or
international), any political
subdivision thereof, and any
governmental, quasi-governmental,
judicial, public, statutory,
administrative or regulatory body,
agency, department, bureau,
authority,
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court, commission, board, office,
instrumentality, administrative
tribunal or other entity of any of
the foregoing and any official
thereof; and
(b) any arbitrator, arbitration
tribunal or other non-governmental
entity which has jurisdiction over
the Mortgagor.
(6) "Hazardous Substance(s)" shall mean and
include any material or substance that
contains:
(a) any "hazardous substance",
"pollutant" or "contaminant" as
defined in any applicable federal
statute, law, rule or regulation
now or hereafter in effect
including without limitation,
Sections 101(14) and (33) of the
Comprehensive Environmental
Response, Compensation and
Liability Act (42 U.S.C. Section
9601(14) and (33)) or 40 C.F.R.
Part 302 or any amendment thereto
or any replacement thereof or in
any statute or regulation relating
in any way to the environment,
whether similar or dissimilar, now
or hereafter in effect;
(b) any hazardous substance or
hazardous waste as those terms are
now or hereafter defined in any
applicable state or local law, rule
or regulation or in any statute or
regulation relating in any way to
the environment, whether similar or
dissimilar, now or hereafter in
effect;
(c) any substance subject to the
Emergency Planning and Community
Right-to-Know Act of 1986, 42
U.S.C. Section 1001 et seq., or the
regulations promulgated thereunder
or in any amendment thereto or in
any replacement thereof or in any
similar federal or state statute or
regulation now or hereafter in
effect;
(d) any substance containing petroleum,
as that term is defined in Section
9001(8) of the Resource
Conservation and Recovery Act, as
amended (42 U.S.C. Section 6991(8))
or 40 C.F.R. Section 280.1 or in
any amendment thereto or any
replacement thereof or in any
similar federal or state statute or
regulation now or hereafter in
effect; or
(e) any other substance for which any
federal, state or local
governmental entity now or
hereafter requires special handling
in its use, transportation,
accumulation, collection, storage,
treatment or disposal.
(7) "Person" shall mean any individual,
partnership, corporation, association,
trust, business trust, joint venture, joint
stock company, limited liability company,
limited liability partnership, limited
partnership, unincorporated organization or
enterprise or Governmental Authority.
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G. The provisions of that certain Environmental Indemnity
Agreement covering the Subject Premises (hereafter, the "Environmental
Agreement"), dated the date hereof and executed and delivered by Mortgagor
contemporaneously herewith, are incorporated herein by reference and, to the
extent that any provisions of the Environmental Agreement impose or reference
any obligations, liabilities, covenants, or grants any rights or remedies, as
the case may be, that are different, inconsistent or conflict with the
provisions of this Mortgage, the provisions that offer the Mortgagee the
greatest protections, rights or remedies and/or impose the greatest obligations
or liabilities upon the Mortgagor shall be deemed operative and controlling.
20. INDEMNIFICATION. Mortgagor hereby irrevocably agrees to indemnify
and save harmless Mortgagee from and against any and all loss or damage of
whatsoever kind and from any suits, claims or demands, including without
limitation, Mortgagee's legal fees and expenses, on account of any matter or
thing arising out of this Mortgage or in connection herewith. This provision
shall survive any foreclosure or cancellation of this Mortgage.
21. INVALIDITY OF PROVISION.
A. If any promise or covenant of this Mortgage or the Notes,
the Loan Agreement, or any of the other Relevant Documents is void or
ineffective under the law, this Mortgage, the Notes, the Loan Agreement, and
the other Relevant Documents shall remain in force and effect as if such
promise or covenant had not been entered into or, at Mortgagee's option, the
entire principal indebtedness and all other sums required to be paid by
Mortgagor hereunder shall become immediately due and payable.
B. Notwithstanding any provision contained in this Mortgage,
in the Notes, in the Loan Agreement, or in any of the other Relevant Documents,
the total liability for payment of interest, or payment in the nature of
interest, shall not exceed the limits now imposed by applicable usury laws,
including the applicable choice of law rules, in the event of the acceleration
of the Obligations (as hereinafter defined) hereby secured, the total charges
for interest and in the nature of interest shall not exceed the maximum amount
allowed by law, and any excess portion of such charges that may have been
prepaid shall be refunded to the maker thereof. Such refund may be made by
application of the amount involved against the sums then due hereunder, but
such crediting shall not cure or waive the Event of Default occasioning
acceleration. Mortgagor agrees that in determining whether or not any interest
payable under this Mortgage exceeds the highest rate permitted by law, any
non-principal payment, including without limitation late charges, shall be
deemed to the extent permitted by law to be an expense, fee, premium or
penalty, rather than interest.
22. REQUIRED NOTICES. In addition to any notice requirements contained
elsewhere in this Mortgage, in the Notes, in the Loan Agreement, or in any of
the other Relevant Documents, or in any document, agreement, instrument or
other writing entered into in connection herewith or in connection with the
obligations secured hereby Mortgagor shall notify Mortgagee promptly of the
occurrence of any of the following:
A. A fire or other casualty causing damage to the Subject
Premises;
B. Receipt of notice of condemnation of the Subject Premises;
C. Receipt of notice from any government or quasi-
governmental authority relating to the development, structure, use, or
occupancy of the Subject Premises;
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D. Substantial change in the occupancy of the Subject
Premises; or
E. Commencement of any litigation affecting the Subject
Premises.
23. SECURITY FOR OBLIGATIONS. Notwithstanding anything to the contrary
contained herein and even if the Notes referred to in this Mortgage be paid,
this Mortgage is and shall continue to be collateral security for, and secure
the payment, performance and observation of, any and all indebtedness,
obligations and liabilities (hereinafter called "Obligations") of any kind, of
Mortgagor to Mortgagee related to the Loans, whether now existing or hereafter
arising, direct or indirect (including participation or interest of Mortgagee
in Obligations of Mortgagor to others), acquired outright, conditionally, or as
collateral security from another, absolute or contingent, joint or several,
secured or unsecured, due or not, contractual or tortious, liquidated or
unliquidated, arising by operation of law or otherwise, and all loan
agreements, security agreements, documents instruments and writings evidencing
any of the foregoing Obligations or under which any of the foregoing
Obligations may have been issued, created, assumed or guaranteed or for which
Mortgagor is surety or guarantor. Mortgagor waives any and all notice of the
creation, or accrual of any of the said Obligations, or of any renewals or
extensions thereof from time to time, or of the reliance by Mortgagee upon this
Mortgage. The Obligations, and each of them, shall be deemed to have been
created, contracted or incurred in reliance upon this Mortgage and all dealings
between Mortgagor and Mortgagee to have been consummated in reliance upon this
Mortgage.
24. JOINT AND SEVERAL LIABILITY. If Mortgagor is more than one party,
all parties executing this Mortgage shall be jointly and severally liable.
25. GOVERNING LAW. The enforcement of this Mortgage, as it pertains to
foreclosure, sale or other rights respecting the realization of the security
referred to herein, shall be governed according to the laws of the state where
the Subject Premises are located, but in all other respects, this Mortgage
shall be construed in accordance with the laws of the State of New Jersey
relating to contracts executed therein and to be performed therein if
different.
26. FORFEITURE. Mortgagor hereby further expressly represents and
warrants to Mortgagee that there has not been committed by Mortgagor or, to the
best of Mortgagor's knowledge by any other person involved with the Mortgaged
Property, any act or omission affording the Federal government or any state or
local government the right of forfeiture as against the Mortgaged Property or
any part thereof or any monies paid in performance of its obligations under the
Notes or under any of the other Relevant Documents, and Mortgagor hereby
covenants and agrees not to commit, permit or suffer to exist any act or
omission affording such right of forfeiture. In furtherance thereof, Mortgagor
hereby indemnifies Mortgagee and agrees to defend and hold Mortgagee harmless
from and against any loss, damage or injury by reason of the breach of the
covenants and agreements or the warranties and representations set forth in the
preceding sentence. Without limiting the generality of the foregoing, the
filing of formal charges or the commencement of proceedings against Mortgagor,
Mortgagee or all or any part of the Mortgaged Property under any Federal or
state law for which forfeiture of the Mortgaged Property or any part thereof or
of any monies paid in performance of Mortgagor's obligations under the Notes or
other Relevant Documents is a potential result shall, at the election of
Mortgagee, constitute an Event of Default hereunder without notice or
opportunity to cure.
27. JURISDICTION. Mortgagor consents to the exclusive jurisdiction of
the state and federal courts of the State of New Jersey except for any action
of foreclosure or an action to otherwise realize on the security hereof which
actions shall be brought in such courts as have jurisdiction over the Subject
Premises. Mortgagor consents to service of process by certified
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mail, return receipt requested. Nothing herein contained shall in any way
prevent or preclude Mortgagee from bringing any one or more actions against
Mortgagor in any jurisdiction in the United States or elsewhere.
28. SERVICE OF PROCESS. Mortgagor irrevocably agrees to service of
process by certified mail, return receipt requested, to its address set forth
herein or such other address as Mortgagor may direct by notice to Mortgagee.
29. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE EACH IRREVOCABLY
WAIVES JURY TRIAL AND THE RIGHT THERETO IN ANY AND ALL DISPUTES INVOLVING
MORTGAGOR OR MORTGAGEE OR MORTGAGOR'S OR MORTGAGEE'S PARENT, AFFILIATES OR
RELATED ENTITIES OR ANY OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, ATTORNEY OR
PARTNER OF ANY OF THEM, WHETHER HEREUNDER OR UNDER ANY OTHER AGREEMENTS, NOTES,
PAPERS, INSTRUMENTS OR DOCUMENTS HERETOFORE OR HEREAFTER EXECUTED OR ANY OTHER
CONTRACT WHETHER SIMILAR OR DISSIMILAR. THIS WAIVER SHALL BE DEEMED A COVENANT
ENFORCEABLE INDEPENDENTLY OF ALL OTHER PROVISIONS OF THIS MORTGAGE.
30. NOTICES. All notices and other communications relating to this
Mortgage shall be in writing, and addressed as follows and sent by hand
delivery, registered or certified mail, recognized overnight courier service or
telecopier with confirmation of delivery:
If to Lender: PNC Bank, National Association
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. XxXxxx,
Senior Vice President
If to Borrower: USA Detergents, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Chief
Financial Officer
With a copy to:
Xxxxxxx Xxxxxxxx, Esq.
Fulbright & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(The failure to transmit a copy of the notice to the
foregoing shall not constitute defective notice to the Borrower.)
or to such other address as the respective party or its successors or
assigns may subsequently designate by proper notice. All notices shall be
deemed effective (i) upon receipt of same (whether by personal delivery or
transmittal by facsimile/telecopier with confirmation thereof); or (ii) two (2)
business days after deposit with an overnight courier; or (iii) three (3)
business days if sent by registered or certified mail, postage prepaid,
whichever is earlier.
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31. INTERPRETATION. Any act or agreement to be done or performed by
the Mortgagor hereunder shall be construed as a covenant running with the land
and shall be binding upon the heirs and assigns of Mortgagor as fully as if
they had been parties signatory hereto as "Mortgagor". Any reference to
"premises" or "Subject Premises" herein shall mean and include the real
property described in Exhibit "A" hereto, all buildings and improvements now
and hereafter erected or situate thereon, and the contents thereof which are
subject to the lien hereof or to financing statements filed in connection with
the Loans secured hereby or are necessary for the maintenance or operation of
such buildings and improvements. Any reference in this Mortgage to the right of
Mortgagee to recover attorney's fees shall permit Mortgagee to recover fees for
both inside and outside counsel. The descriptive headings used herein are for
convenience only and are not a part of this Mortgage and do not in any manner
limit or amplify the terms and provisions hereof. Time shall be of the essence
of this Mortgage. This Mortgage shall inure to the benefit of and be binding
upon Mortgagee, its successors and assigns, and Mortgagor, and Mortgagor's
heirs, executors, personal representatives, successors, and assigns. References
to this Mortgage shall mean this instrument and any and all renewals,
modifications, amendments, supplements, extensions, consolidations,
substitutions, spreaders and replacements of this instrument.
32. MORTGAGOR'S REPRESENTATIONS. Mortgagor warrants and represents
that it possesses a good and marketable title to an indefeasible fee simple
estate in the Subject Premises; that Mortgagor has full power and lawful
authority to subject the Subject Premises to the lien of this Mortgage in the
manner and form herein provided; that it shall be lawful for Mortgagee at all
times to enter upon, hold, occupy and enjoy the Subject Premises and every part
thereof; that the Subject Premises is free from all liens and encumbrances
subject only to those title exceptions listed in the mortgagee title insurance
policy approved by and issued to Mortgagee, insuring the priority of the lien
of this Mortgage; that all information, reports, papers and data given to
Mortgagee with respect to the Subject Premises or Mortgagor are accurate in all
material respects; that no notice of taking by eminent domain or condemnation
of any part of the Subject Premises has been received, and Mortgagor has no
knowledge that any of such is contemplated; that the Subject Premises and the
present use and occupancy thereof are in compliance with all applicable laws,
rules, ordinances, statutes and regulations; and that no part of the Subject
Premises is located in an area designated by any federal, state or local
governmental entity as having a special flood hazard.
33. ACTIONS OF MORTGAGEE. Mortgagee may, at any time and from time to
time, without notice to, and without the consent of, any other person or entity
(except for Mortgagor in the case of a modification of the terms of the Notes,
this Mortgage, the Loan Agreement, or any of the other Relevant Documents): (a)
extend the time of payment of the indebtedness secured hereby, (b) agree to
modify the terms of the Notes, this Mortgage, the Loan Agreement, or any of the
other Relevant Documents, including increasing payments of interest and
principal, (c) release any person liable for payment of any indebtedness
secured hereby or for performance of any obligation, (d) release all or any
part of the security held for the indebtedness secured hereby or (e) exercise
or refrain from exercising or waive any right Mortgagee may have. Mortgagee
shall have such rights and may exercise them without affecting the lien or
priority of this Mortgage upon the Subject Premises or any part thereof, and
without affecting the liability of any Guarantor, notwithstanding the fact that
Sureties, junior mortgages, judgments or other claims or encumbrances may be
impaired, prejudiced or otherwise adversely affected thereby.
34. NO WAIVER IMPLIED. Any failure by Mortgagee to insist upon strict
performance by Mortgagor of any of the terms and provisions of this Mortgage or
the Notes shall not be deemed to be a waiver of any of the terms or provisions
of the Mortgage or Notes, and Mortgagee shall have the right thereafter to
insist upon strict performance by Mortgagor of any
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and all of them. Neither Mortgagor nor any other person now or hereafter
obligated for payment of all or any part of the sums now or hereafter secured
by this Mortgage shall be relieved of such obligation by reason of the failure
of Mortgagee to comply with any request of Mortgagor or of any other person so
obligated to take action to foreclose on this Mortgage or otherwise enforce any
provisions of the Mortgage or the Notes, or by reason of the release,
regardless of consideration, of all or any part of the security held for the
indebtedness secured by this Mortgage, or by reason of any agreement or
stipulation between any subsequent owner of the Subject Premises and Mortgagee
extending the time of payment or modifying the terms of the Mortgage or Notes
without first having obtained the consent of Mortgagor or such other person;
and in the latter event Mortgagor and all such other persons shall continue to
be liable to make payments according to the terms of any such extension or
modification agreement, unless expressly released and discharged in writing by
Mortgagee.
35. LETTERS OF CREDIT. This Mortgage shall secure the applicant's and
account party's obligations under any application, reimbursement agreement or
other document (collectively the "LC Documents") executed in connection with
any letter of credit (hereinafter an "LC"), irrespective of the applicant or
account party thereunder, now or hereafter issued by Mortgagee at Mortgagor's,
or a Guarantor's or their affiliate's request and relating in any way to the
Subject Premises. In the event of a draw under any LC such draw shall
constitute an Event of Default. The obligations under the LC Documents shall be
a direct repayment obligation of the Mortgagor notwithstanding any non-recourse
language contained in the Notes or this Mortgage if any. However the foregoing
language shall in no way obligate Mortgagee to issue any LC.
36. NON-MERGER. Mortgagor intends and agrees that this Mortgage shall
NOT merge into any foreclosure or other judgment entered or recovered by
Mortgagee against the Mortgagor under the Notes, the Loan Agreement, or any of
the other Relevant Documents, or under or pursuant to any other Notes, document
or instrument. Notwithstanding the recovery or entry of any such judgment
against Mortgagor, all of the terms, provisions, covenants, undertakings and
agreements of the Mortgagor whether under this Mortgage or under the Notes, the
Loan Agreement, or any of the other Relevant Documents, or any other Notes,
instrument, document or undertaking of the Mortgagor, whether relating thereto
or not, shall remain in full force and effect and shall be enforceable strictly
in accordance with their terms as fully as though no such judgment had been
entered or recovered against the Mortgagor.
37. CROSS-COLLATERALIZATION. All of the collateral for the Notes, the
Loan Agreement, or any of the other Relevant Documents, shall serve as
collateral for any and all other Loans from Mortgagee to Mortgagor and/or to
any Guarantor or any affiliate of any of them now existing or which are
hereinafter entered into and Mortgagor agrees that the collateral for any other
such Loans shall serve as collateral for the Notes, Loan Agreement and the
other Relevant Documents.
38. RELEASE. Notwithstanding any inconsistent language in the Loan
Agreement or any of the other Relevant Documents, provided no default occurs:
(i) in the payment of the interest due monthly under the Notes and such default
continues for more than five (5) days after Mortgagee gives Mortgagor written
notice of such default or (ii) in the payment of the principal of the Notes due
on January 4, 1999, then, this Mortgage shall be discharged upon receipt by
Mortgagee of the principal amount outstanding under the Bridge Note (as defined
in the Loan Agreement), plus interest thereon and all reasonable costs and
expenses in connection therewith (collectively, the "Release Amount") in good
funds by certified or bank check made payable to Mortgagee or by wire transfer
to an account provided by Mortgagee's letter of direction. In furtherance
thereof, upon receipt of the Release Amount by the Mortgagee, the Mortgagee
shall execute and deliver to Mortgagor such documentation as Mortgagor shall
reasonably request in order to evidence and/or memorialize the release of the
Subject Premises from the lien of this Mortgage.
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If a default occurs (i) in the payment of interest due monthly under
the Notes and such default continues for more than five (5) days after
Mortgagee gives Mortgagor written notice of such default or (ii) in the payment
of the principal of the Notes due on January 4, 1999, this Mortgage shall be
discharged upon receipt by Mortgagee of: (i) the Release Amount, plus (ii) all
proceeds from the refinancing or sale of the Subject Premises (as described
under Section 3.3 of the Loan Agreement) in excess of the Release Amount and
the amount required to discharge the Second Mortgage (up to the amount of
Mortgagee's third mortgage lien on the Subject Premises) in good funds by
certified or bank check made payable to Mortgagee or by wire transfer to an
account provided by Mortgagee's letter of direction. Upon receipt of the
foregoing sums by the Mortgagee, the Mortgagee shall execute and deliver to
Mortgagor such documentation as Mortgagor shall reasonably request in order to
evidence and/or memorialize the release of the Subject Premises from the lien
of this Mortgage.
39. NEW GUARANTEE. Notwithstanding anything to the contrary contained
in this Mortgage, the Loan Agreement and/or any other agreement between the
Mortgagor and Mortgagee, if (i) any one or more of the guarantors under the
Guarantee Agreement (the "New Guarantee"), dated the date hereof, executed
jointly and severally by Xxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxx, Uri Xxxx
and Xxxxxxxxx Xxxxxxxx (collectively, the "Individual Guarantors"), shall fail
to perform or observe any covenant, term or condition under the New Guarantee,
(ii) any other default shall occur under the New Guarantee, (iii) any one or
more of the Individual Guarantors denies liability under the New Guarantee
and/or (iv) the New Guarantee ceases to be effective for any reason whatsoever,
then none of the foregoing, either collectively or individually, shall
constitute any Event of Default under this Mortgage, any Event of Default under
the Loan Agreement or any default or Event of Default under any other agreement
between the Mortgagor and the Mortgagee.
IN WITNESS WHEREOF, Mortgagor intending this to take effect as in
instrument under seal has caused these presents to be executed the day and year
first above written.
USA DETERGENTS, INC.,
A Delaware Corporation
By: /s/ Uri Evan (Seal)
______________________________________
Name: Uri Evan
Title: Chairman of the Board and
Chief Executive Officer
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