Exhibit (4) (v) to 10-KSB98
MORTGAGE
NIAGARA COUNTY INDUSTRIAL DEVELOPMENT AGENCY ("NCIDA")
TAYCO REALTY CORPORATION ("Owner")
and
XXXXXX DEVICES, INC. ("Borrower")
to
MARINE MIDLAND BANK ("Lender")
Dated As of January __, 1998
Prepared By:
XXXXXXXX, XXXXX, XXXXXXXXX, XXXXXX & XXXXX LLP
0000 Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
MORTGAGE
THIS MORTGAGE, dated as of January 1998, by NIAGARA
COUNTY INDUSTRIAL DEVELOPMENT AGENCY, a corporate governmental
agency constituting a body corporate and politic and a public
benefit corporation of the State of New York, whose address is
0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxx, Xxxxxxx Xxxxx, Xxx
Xxxx 00000 ("NCIDA"), TAYCO REALTY CORPORATION, a New York
corporation, whose address is 00 Xxxxxx Xxxxx, Xxxxx Xxxxxxxxx,
Xxx Xxxx 00000 ("Owner"), and XXXXXX DEVICES, INC., a New York
corporation, whose address is 00 Xxxxxx Xxxxx, Xxxxx Xxxxxxxxx,
Xxx Xxxx 00000 ("Borrower"), to MARINE MIDLAND BANK, a banking
corporation organized under the laws of the State of New York,
whose address is Commercial Banking Department, One Marine
Midland Center, Lobby Level, Buffalo, New York 14203 ("Lender"),
evidences:
ARTICLE I. DEFINITIONS
The following terms shall have the following respective
meanings when used herein.
1.1 Awards: Any and all awards heretofore or
hereafter made by any federal, state, county, municipal or other
governmental authority, or by whomsoever made in any
condemnation, eminent domain, or equivalent proceeding, to the
present or subsequent owners of any interest encumbered by this
Mortgage for the acquisition for public purposes of said
interest, or any portion thereof, and for severance and
consequential damages on account thereof, including any award for
any change of grade of any street affecting said interest, and
also any award for any damage to said interest; and all proceeds
of insurance on or in connection with the Real Property, the
Personal Property, and the Improvements.
1.2 Collateral Documents:
A. Security Agreement from NCIDA, Owner, and
Borrower to Lender of even date herewith;
B. Assignment of Leases and Rents from NCIDA,
Owner and Borrower to Lender of even date herewith; and
C. Any other document given by or on behalf of
NCIDA, Owner, and/or Borrower to secure the Note.
1.3 Improvements: All buildings and other
improvements now or hereafter on the Real Property.
1.4 Indebtedness: All amounts due to Lender from
Borrower from time to time pursuant to the terms of the Note,
this Mortgage, and the Collateral Documents; provided, however,
that the principal amount secured by this Mortgage does not, and
shall not under any contingency, exceed FOUR HUNDRED THOUSAND AND
00/100 U.S. DOLLARS ($400,000.00).
1.5 Indemnitee: Lender, its participants, all
subsequent holders of the Mortgage securing the Indebtedness,
their respective successors and assigns and their respective
officers, directors, employees, agents, representatives,
contractors and subcontractors and any subsequent owner of the
Premises who acquires title thereto from or through Lender.
1.6 Intangible Assets: means (1) all loans or
advances to, and other receivable owing from, any officers,
employees, subsidiaries and other affiliates, (2) all
investments, whether in a subsidiary or otherwise, (3) goodwill,
(4) any other assets deemed intangible under generally accepted
accounting principles, and (5) any other assets determined to be
intangible by Lender in its reasonable credit judgment.
1.7 Master Indenture: Master Indenture between NCIDA
and Bankers Trust Company dated as of November 1, 1994 with
respect to the NCIDA's 1994 Adjustable Rate Demand Industrial
Development Revenue Bonds, Letter Series (MMARS Second Program).
1.8 Net Working Capital: means the amount by which
current assets (excluding any Intangible Assets as herein
defined) exceed current liabilities, all determined in accordance
with generally accepted accounting principles consistently
applied.
1.9 Note: Xxxxxxxx's promise of even date herewith to
pay to the order of Lender the maximum principal sum of
$400,000.00, plus interest and other sums as provided therein,
and all extensions, modifications, renewals and replacements
thereof.
1.10 Personal Property: All fixtures and articles of
personal property now or hereafter used or installed on, in, or
in connection with the Real Property or the Improvements,
including without limitation, heating, ventilation, air
conditioning, plumbing, gas and electric fixtures and equipment;
engines, motors, incinerators, pumps, fire prevention equipment,
floor coverings, and all renewals and replacements thereof and
articles in substitution therefor.
1.11 Premises: The Real Property, Improvements,
Personal Property, and Awards.
1.12 Real Property: The land described on Schedule A
attached hereto; all appurtenances thereto; all the right, title,
and interest of NCIDA, Owner and/or Borrower in and to all
streets, alleys, highways, public ways, and waterways adjacent
thereto; all public and private easements and rights of way now
or hereafter benefitting, existing, or used in connection
therewith.
1.13 Tangible Net Worth: means the sum of
stockholders' equity plus the principal balance of any debt that
is subordinated to Lender in a manner satisfactory to Lender,
minus the book value of Intangible Assets (as defined herein),
all determined in accordance with generally accepted accounting
principles consistently applied.
1.14 Xxxxxx: Owner and Borrower collectively.
ARTICLE II. GRANT OF MORTGAGE
To secure the payment of the Indebtedness to Lender,
NCIDA and Owner hereby mortgage the Premises to Lender; provided,
however, that nothing herein shall be construed as a mortgage by
NCIDA of any of the Agency's Reserved Rights, as defined in the
Master Indenture ("Reserved Rights"), the enforceability of which
by NCIDA shall be unaffected hereby.
ARTICLE III. COVENANTS AND REPRESENTATIONS OF OWNER,
BORROWER AND NCIDA
Xxxxxx, and only when expressly so set forth herein,
NCIDA, each for itself, covenants and agrees with, and represent
to, Xxxxxx as follows:
3.1 Payment of Indebtedness: Xxxxxxxx will pay the
Indebtedness when and as due.
3.2 Payment of Taxes and Assessments: Borrower will
pay prior to the addition of any penalty or interest thereon all
taxes, payments in lieu of taxes, assessments, charges, and water
rates, levied against the Premises and provide Lender with copies
of receipts for the payment thereof.
3.3 Insurance: Owner will: (a) Keep all buildings of
the Premises insured for the benefit of and by insurers
acceptable to Lender and against such hazards and in such form
and amount as Lender may from time to time require; (b) Have
endorsed on the insurance policies the standard New York
mortgagee clause in the name of Xxxxxx; and (c) Deliver original
binders or declaration pages and copies of the policies to
Lender. In the event of a failure to comply with (a), (b) or (c)
above, Lender may procure such insurance or insurances covering
the Lender's interest and Owner shall reimburse Lender for the
cost thereof with interest thereon, on demand. The acceptance by
Lender of any insurance policy shall not be deemed as an approval
by Lender of the insurer, or of the coverage, form, amount or
sufficiency of the policy or insurance.
3.4 Statement of Amount Due: Borrower will within ten
(10) days of receipt of Xxxxxx's request, furnish a written
statement duly acknowledged of the amount due on this Mortgage
and whether any offsets or defenses exist against the
Indebtedness.
3.5 Notice of Transfer or Casualty: Owner will give
immediate notice to Lender of any damage by fire or other
casualty to the Premises or of any conveyance, transfer or change
of ownership of the Premises or any part thereof or interest
therein. Should Owner receive any proceeds of insurance with
respect to the Premises, the amount thereof shall be applied
toward the repair or restoration of the buildings on the Premises
or to the payment of the Indebtedness, at Lender's option,
provided, however, Lender will advance to Owner any such
insurance proceeds necessary to restore portions of the buildings
on the Premises which in Lender's reasonable judgment will be
restored (i) within the term of the Note and (ii) at a cost not
to exceed such proceeds, unless any such excess is deposited with
Lender for that purpose. Owner appoints as Owner's attorney-in-fact
to make any claim for, receive payment for, and execute and
endorse any documents, checks or other instruments in payment for
loss, theft, or damage under any such insurance policy.
3.6 Demolition or Alteration: Neither NCIDA nor Owner
will remove, demolish or structurally alter any of the
Improvements or Personal Property without the prior written
consent of the Lender.
3.7 Inspection: NCIDA and Owner will permit Lender
and its agents to inspect the Premises from time to time at any
reasonable hour of the day upon reasonable notice to Borrower
when possible.
3.8 Rents: NCIDA and Owner represent that no rental
for the Premises or any portion thereof has been paid by any of
the tenants or occupants thereof except rental which has become
due prior to the date hereof; that there is no pledge or
assignment of any of the rents, issues or profits of the Premises
or of any portion thereof except to Lender; and that Owner will
make no such pledge or assignment, except to Lender, as long as
any portion of the Indebtedness remains unpaid.
3.9 Tenancies: Neither NCIDA nor Owner will cancel,
abridge or otherwise modify tenancies, subtenancies, leases or
subleases of the Premises nor accept prepayments of installments
of rent, and reference is hereby made to Section 291(f) of the
Real Property Law of the State of New York.
3.10 Consent: Xxxxxx represents that neither Owner's
nor Xxxxxxxx's respective certificates of incorporation nor any
amendments thereto nor their respective bylaws require the
consent of the shareholders to the execution and delivery of this
Mortgage and the execution and delivery of this Mortgage have
been duly authorized by their respective Board of Directors.
3.11 INTENTIONALLY OMITTED.
3.12 Partial Payments: Xxxxxxxx agrees that any
payment or part payment of principal or interest or of any other
sum or sums due or to become due hereunder or the doing of any
act or acts under the terms hereof by any then owner of the
Premises or person liable upon the Indebtedness shall for the
purpose of the Statute of Limitations be deemed to be a payment
by or act of every person included in the term Borrower.
3.13 Protection of Premises; Cure of Defaults: NCIDA
and Owner agree that if, in the opinion of Xxxxxx, the Premises
are in danger of destruction or deterioration, Lender may enter
upon the Premises and perform such acts thereon or with respect
thereto as it may deem suitable for preservation or protection of
the Premises, and may thereafter remove Owner and/or Borrower
from the Premises or hold possession thereof at its option.
Lender may also perform such acts and make such expenditures as
Lender may deem appropriate or desirable to cure defaults in any
agreement affecting the Premises.
3.14 Change of Law: Xxxxxxxx agrees that in the event
of the passage of any law changing in any way the laws for the
taxation of mortgages or debts secured by mortgages, for state or
local purposes, or the manner of collection of any such taxes, so
as to affect this Mortgage, Lender shall have the right to give
thirty (30) days written notice to Borrower requiring the payment
of the Indebtedness or payment by Xxxxxxxx of any such additional
taxes imposed, at Borrower's option. If such notice is given,
the Indebtedness or such additional taxes shall become
immediately due and payable at the expiration of said thirty
(30) days.
3.15 Reimbursement of Expenses: Xxxxxxxx agrees to
reimburse Lender for the following expenses, if paid by Xxxxxx,
within thirty (30) days of receipt of Xxxxxx's demand therefor:
A. Payment of taxes, payments in lieu of taxes,
assessments, water charges, utilities, and insurance premiums not
paid when due by Borrower;
B. Expenses of preserving, protecting or
securing the Premises;
C. Expenses of curing defaults under this
Mortgage or any other agreement affecting the Premises; and
D. Expenses of enforcing this Mortgage and
defending the security thereof, including without limitation, the
reasonable fees and disbursements of accountants, appraisers,
consultants, and attorneys.
3.16 Maintain Premises: Owner will maintain the
Premises in good repair and condition and cause or permit no
waste thereof.
3.17 Financial Covenants: So long as the Indebtedness,
or any portion thereof, remains unpaid, Borrower shall:
(a) Use all proceeds advanced hereunder solely
for the purpose of financing the improvements on the
Premises;
(b) Maintain Net Working Capital of at least
$1,000,000 during the term of this Mortgage or the Note
secured hereby;
(c) Maintain a minimum Tangible Net Worth of
$2,000,000 during the term of this Mortgage or the Note
secured hereby;
(d) Report to Lender in writing any litigation
against Borrower or Owner for more than $100,000
immediately upon receiving notice of such litigation;
and
(e) Not make annual capital expenditures in excess of
$300,000 without the prior written consent of Lender.
3.18 Books and Records: Xxxxxx shall at all times
maintain accurate books and records with respect to the
Indebtedness and the Premises, which books and records shall
reflect the consistent application of accepted accounting
principles, and to make such books and records available at
reasonable times for inspection and copying by Lender or its
agent.
3.19 Future Financial Statements: Xxxxxx shall
furnish to Lender the current financial statements of Xxxxxxxx
and Owner within one hundred twenty (120) days after the end
of each of their respective fiscal years. Such statements
shall be prepared by an independent certified public
accounting firm acceptable to
Lender; and shall consist of a balance sheet, an income
statement, rent rolls (if applicable), cash flow statement, and
statement of contingent liabilities; and shall be certified to be
correct. Xxxxxx shall also furnish Lender with internally
prepared, interim financial statements of Xxxxxxxx and Owner on a
quarterly basis; and, within fifteen (15) days after filing same,
a copy of Owner's income tax return. Xxxxxx shall also furnish
Lender with such other financial information with respect
Borrower and Owner as Xxxxxx may request.
3.20 Future Operating Statements: Borrower shall
furnish Lender with copies of the annual operating statements for
the Premises within thirty (30) days after the end of each fiscal
year of Borrower.
3.21 Annual Reports and Shareholder Communications:
Borrower shall furnish Lender, within ten (10) days of filing
same, annual and quarterly Form 10-K reports any intervening Form
8-K reports; and shall furnish Lender, within ten (10) days of
mailing, any shareholder communications.
3.22 Comply With Covenants: Xxxxxx will not use the
Premises in any manner which will violate an enforceable
restrictive covenant affecting the same.
3.23 Other Acts: At Xxxxxx's request, Xxxxxx will
execute and deliver to Lender all further documents and perform
all other acts which Lender reasonably deems necessary or
appropriate to perfect or protect its security for the
Indebtedness.
IV. EVENTS OF DEFAULT
The existence of any of the following conditions or the
occurrences of any of the following events shall constitute
events of default hereunder ("Events of Default"):
4.1 Failure to Pay Indebtedness: Failure by Borrower
to pay the Indebtedness when due;
4.2 Default Under Other Documents: Any Event of
Default as defined in the Note, or any of the Collateral
Documents (after any applicable cure period set forth therein)
and not otherwise specifically set forth herein;
4.3 Sale or Transfer: Sale or transfer of the
Premises or any part thereof, or of any legal or equitable
interest therein, without the prior written consent of Lender;
4.4 Other Liens: The existence of any mortgage,
encumbrance, or lien to secure debt (other than in favor of
Lender) affecting all or any of the Premises without Xxxxxx's
prior written consent;
4.5 Default Under Other Credit Facilities: Any Event
of Default under any credit facility given by Xxxxxx to Borrower;
4.6 Failure to Perform Other Covenants: Failure by or
on behalf of Xxxxxx to perform any other covenant or agreement
herein, which failure continues for ten (10) days after receipt
by Xxxxxx of Xxxxxx's demand for cure of the same; or
4.7 Default Under Other Mortgages: Default in the
performance of any other mortgage or encumbrance to which Xxxxxx
has consented affecting all or any of the Premises.
4.8 Failure to Comply with Laws: Failure of Xxxxxx to
comply promptly with all requirements of the federal, state,
county, municipal and other governmental authorities having
jurisdiction, or use of the Premises in any way that violates any
governmental law, ordinance, rule, regulation or requirement;
4.9 Assumption of Mortgage: Assumption of this
Mortgage by a third party without the prior written consent of
Xxxxxx; or
4.10 False Statements: If any certificate, statement,
warranty or audit representation heretofore or hereafter
furnished by or on behalf of Xxxxxx pursuant to or in connection
with this Mortgage (including, without limitation,
representations and warranties contained herein) proves to have
been false or to have omitted any substantial contingent or
unliquidated liability or claim against Xxxxxx.
V. REMEDIES
Upon the occurrence of an Event of Default, Lender
shall have the absolute right, at is option and election and in
its sole discretion, to exercise alternatively or cumulatively
any or all of the following remedies:
5.1 Accelerate Indebtedness: Declare the Indebtedness
immediately due and payable;
5.2 Foreclose Mortgage: Institute judicial or
non-judicial proceedings to foreclose the lien of this Mortgage;
5.3 Take Possession of Premises: Enter into and take
possession of all or any of the Premises (and NCIDA and Xxxxxx
agree to peaceably surrender the same immediately upon receipt of
Xxxxxx's demand therefor); lease and re-lease all or any of the
Premises; collect the rents, income and profits therefrom and
apply the same against the Indebtedness; collect reasonable rent
from Xxxxxx if Xxxxxx remains in possession after Xxxxxx's demand
to surrender; dispossess by summary proceeding any tenant
(including Xxxxxx) defaulting in the payment of rent; provided,
however, that no such acts by or on behalf of Lender shall
constitute Lender a "mortgagee in possession." The rights
enumerated herein shall inure to the benefit of any receiver
appointed respecting the Premises;
5.4 Receiver: Obtain the appointment of a receiver of
rents and profits without notice and whether or not in connection
with an action to foreclose this Mortgage;
5.5 Sell in One or More Parcels: In the event of a
foreclosure hereof, cause the Premises to be sold in one or more
parcels, any provision of law to the contrary notwithstanding;
and
5.6 Other: Exercise any other remedy and obtain any
other relief as may be available to Lender in law or equity.
VI. MISCELLANEOUS
6.1 Releases: Lender may, without the consent of
NCIDA or Xxxxxx, or any other person liable for the payment of
the Indebtedness, release any portion or portions of or interest
or interests in the Premises from the lien of this Mortgage,
either with or without consideration, and may release or
discharge in whole or in part any other property which it may at
any time hold as security for payment of the Indebtedness or any
part thereof and may take any other bond, note or obligation as
evidence of the Indebtedness, payable at such time and on such
terms as Lender may approve.
6.2 Application of Payments: If Lender receives from
or on behalf of Borrower any sum less than the full amount then
due and payable, Lender may, but shall not be obligated to,
accept the same and if it elects to accept any such payment, it
may hold the same or any part thereof, without liability for
interest, in a special account and may from time to time apply
the same or any part thereof to the Indebtedness or to the
payment of any taxes, assessments, sewer or water charges or
insurance premiums which Lender deems desirable to maintain the
lien of this Mortgage, or to any expenses, including costs and
reasonable attorneys' fees and disbursements, incurred by Xxxxxx
in attempting to collect any amount owing on the Indebtedness and
in bringing foreclosure proceedings with respect to this
Mortgage.
6.3 Notice: All notices, elections or demands
permitted or required herein shall be in writing, signed by the
party giving such notice, election or demand, and given
personally or by mail, addressed to the appropriate party at the
address designated for such party in the heading of this
Mortgage, or such other address in the continental United States
as the party who is to receive such notice may designate by
notice to the other party. Notice by mail shall be by registered
or certified United States mail, addressed to the party to be
notified, and with the proper amount of postage affixed thereto.
The effective date of the notice, election or demand shall be the
date of personal delivery or the third business day following the
date of mailing, as the case may be. Rejection or other refusal
to accept, or inability to deliver because of a change of address
of which no notice was given shall be deemed to be receipt of the
notice, election or demand sent. Any notice to be delivered to
Xxxxxx shall be deemed effective if delivered pursuant to this
paragraph to either Owner or Borrower.
6.4 Parties: Except as provided in Section 6.11
hereof, if more than one party join in the execution of this
Mortgage, the covenants and agreements herein contained shall be
the joint and several obligation of each and all of them and of
their respective heirs, executors, administrators, successors and
assigns, and relative words herein shall be read as if written in
the plural when appropriate. Any reference herein to Lender
shall be deemed to include and apply to every subsequent holder
of this Mortgage and any reference herein to Xxxxxx, Owner or
Borrower shall be deemed to include and apply to every subsequent
owner of the Premises and every person liable upon the
Indebtedness, unless the language or circumstances clearly
requires the contrary. Words of masculine or neuter import shall
be read as if written in the neuter or masculine or feminine when
appropriate.
6.5 Waiver: No course of dealing and no delay or
omission by Xxxxxx in exercising any right or remedy hereunder or
with respect to any indebtedness of Borrower to Lender shall
operate as a waiver thereof or of any other right or remedy and
no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right or
remedy. Lender may remedy any default by Xxxxxx to Lender or any
other person, firm or corporation in any reasonable manner
without waiving the default remedied and without waiving any
other prior or subsequent default by Xxxxxx and shall be
reimbursed for any and all of its expenses in so remedying such
default. All rights and remedies of Xxxxxx xxxxxxxxx are
cumulative.
6.6 Environmental Rider: The terms, provisions and
conditions of the environmental rider attached hereto as Schedule
B are hereby incorporated into this Mortgage.
6.7 Trust Fund Provisions: This Mortgage is subject
to the trust fund provisions of Section 13 of the Lien Law of the
State of New York.
6.8 Governing Law: This Mortgage, and the rights and
obligations of the parties hereto, shall be construed and
interpreted in accordance with the internal laws of the State of
New York, without regard to principles of conflicts of laws.
6.9 Jurisdiction: NCIDA AND XXXXXX AGREE THAT ANY
ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS MORTGAGE
MAY BE COMMENCED IN THE SUPREME COURT OF NEW YORK IN NIAGARA
COUNTY, OR IN THE DISTRICT COURT OF THE UNITED STATES IN THE
WESTERN DISTRICT OF NEW YORK, AND NCIDA AND XXXXXX XXXXX PERSONAL
SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT
COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE
PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED
BY REGISTERED MAIL TO NCIDA AND XXXXXX AT THE ADDRESS SPECIFIED
IN THE HEADING OF THIS MORTGAGE, OR AS OTHERWISE PROVIDED BY THE
LAWS OF THE STATE OF NEW YORK OR THE UNITED STATES.
6.10 Waiver of Jury Trial: NCIDA AND XXXXXX XXXXXX
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO
TRIAL BY JURY NCIDA AND XXXXXX MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS MORTGAGE
OR THE TRANSACTIONS RELATED HERETO. NCIDA AND XXXXXX REPRESENT
AND WARRANT THAT NO REPRESENTATIVE OR AGENT OF XXXXXX HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WILL NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER.
NCIDA AND XXXXXX ACKNOWLEDGE THAT XXXXXX HAS BEEN INDUCED TO
ENTER INTO THIS MORTGAGE BY, AMONG OTHER THINGS, THE PROVISIONS
OF THIS SECTION.
6.11 No Pecuniary Liability of NCIDA:
(a) Any obligation of NCIDA under this Mortgage
shall not create a debt of the State of New York or of Niagara
County and neither the State of New York nor Niagara County shall
be liable on any obligation so incurred.
(b) With respect to NCIDA, it is agreed that
NCIDA and its officers, members, employees, agents and directors
shall have no personal liability hereunder, nor in their capacity
as officers, members, employees, agents and directors. NCIDA has
executed this Mortgage to subject its interest in the Premises to
the lien of this Mortgage, however Lender shall not have any
recourse to NCIDA other than to its interest in the Premises. No
provision, covenant or agreement contained in this Mortgage or
any obligation herein imposed upon NCIDA or the breach thereof
shall constitute or give rise to or impose upon NCIDA a pecuniary
liability or a charge upon its general credit. In making the
agreements set forth in this Mortgage, NCIDA has not obligated
itself except with respect to the Premises. All covenants,
stipulations, promises, agreements and obligations of NCIDA
contained herein shall be the covenants, stipulations, promises,
agreements and obligations of NCIDA and not of any member,
director, employee, officer or agent of NCIDA in his or her
individual capacity, and no recourse shall be had for the
principal of any debt or interest thereon or for any claim based
thereon or hereunder against any member, director, officer,
employee or agent of NCIDA or any natural person executing this
Mortgage on behalf of NCIDA.
6.12 Subordination to Existing Mortgage: This Mortgage
is made subject, subordinate and junior to the Series Mortgage in
the original principal amount of $1,250,000.00 from NCIDA,
Borrower and Owner to Lender dated as of November 1, 1994 and
recorded on November 18, 1994 in the Niagara County Clerk's
Office in Liber 3007 of Mortgages at Page 68.
6.13 Successor and Assigns: This Mortgage shall inure
to the benefit of, and be binding on, the parties hereto, and
their successors and assigns.
IN WITNESS WHEREOF, NCIDA, Owner and Borrower have duly
executed this Mortgage.
TAYCO REALTY CORPORATION
By: ______________________________
Name:
Title:
XXXXXX DEVICES, INC.
By: ______________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
NIAGARA COUNTY INDUSTRIAL
DEVELOPMENT AGENCY
By: ______________________________
Name:
Title:
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On this day of January, 1998, before me personally
came Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he resides at 000 Xxxxxxx Xxxxx X., Xxxxx
Xxxxxxxxx, XX 00000, that he is President of XXXXXX DEVICES,
INC., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
______________________________
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On this day of , 19 , before me
personally came , to me
known, who, being by me duly sworn, did depose and say that (s)he
resides at
, that (s)he is of
TAYCO REALTY CORPORATION, the corporation described in and which
executed the foregoing instrument; and that (s)he signed h___
name thereto by order of the Board of Directors of said
corporation.
______________________________
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
On this ____ day of January, 1998 before me personally
came _________________________, to me known, who, being by me
duly sworn, did depose and say that he resides at
, that he is the
____________________ of NIAGARA COUNTY INDUSTRIAL DEVELOPMENT
AGENCY, the corporation described in and which executed the
foregoing Instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
Notary Public
IBcw/466535.2
SCHEDULE A
(Legal Description)
SCHEDULE B
RIDER TO MORTGAGE
Environmental Agreement
1. Definitions: As used in this Schedule, the
following capitalized terms shall have the meanings set forth
below:
"Disposal" means the intentional or unintentional
abandonment, discharge, deposit, injection, dumping, spilling,
leaking, storing, burning, thermal destruction or placing of any
substance so that it or any of its constituents may enter the
Environment.
"Environment" means any water including but not limited
to surface water and ground water or water vapor; any land
including land surface or subsurface; stream sediments; air;
fish, wildlife, plants; and all other natural resources or
environmental media.
"Environmental Laws" means all federal, state and local
environmental, land use, zoning, health, chemical use, safety and
sanitation laws, statutes, ordinances, regulations, codes and
rules relating to the protection of the Environment and/or
governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of
Hazardous Substances and the policies, guidelines, procedures,
interpretations, decisions, orders and directives of federal,
state and local governmental agencies and authorities with
respect thereto.
"Environmental Permits" means all licenses, permits,
approvals, authorizations, consents or registrations required by
any applicable Environmental Laws and all applicable judicial and
administrative orders in connection with ownership, lease,
purchase, transfer, closure, use and/or operation of the Property
and/or as may be required for the storage, treatment, generation,
transportation, processing, handling, production or disposal of
Hazardous Substances.
"Environmental Questionnaire" means one or more
questionnaires and all attachments thereto concerning: 1)
activities and conditions affecting the Environment at the
Property or 2) the enforcement or possible enforcement of any
Environmental Law against Mortgagor.
"Environmental Report" means a written report and all
attachments and amendments thereto prepared for Lender by an
environmental consulting or environmental engineering firm
acceptable to Lender.
"Hazardous Substances" means, without limitation, any
explosives, radon, radioactive materials, asbestos, urea
formaldehyde foam insulation, petroleum and petroleum products,
methane, hazardous materials, hazardous wastes, hazardous or
toxic substances and any other material defined as a hazardous
substance in Section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601(14).
"Mortgagor" means Xxxxxx Devices, Inc. and Tayco Realty
Corporation, their respective heirs, personal representatives,
successors and/or assigns.
"Mortgagee" means Marine Midland Bank, its affiliates,
successors and/or assigns.
"Mortgage" means the mortgage from Mortgagor to
Mortgagee dated of even date herewith to which this Schedule is
attached.
"Property" means the premises covered by the Mortgage.
"Release" has the same meaning as given to that term in
Section 101(22) of the Comprehensive, Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601(22), and the regulations promulgated thereunder.
2. Mortgagor represents and warrants that:
(i) The Environmental Questionnaire previously
provided to Mortgagee was and is accurate and complete and does
not omit any material fact the omission of which would make the
information contained therein materially misleading.
(ii) No asbestos or urea formaldehyde foam
insulation is located in any of the buildings or structures
improving the Property.
(iii) No above ground or underground storage tanks
containing Hazardous Substances are or have been located on the
Property.
(iv) Radon gas is not present in buildings on the
Property in concentrations exceeding 4 pCi/1.
(v) No electrical transformers, capacitors,
lighting ballasts or other electric equipment on the Property
contain polychlorinated biphenyls (PCBs) in concentrations
exceeding amounts allowed by any Environmental Law.
(vi) The Property is not and has not been used for
the Disposal of any Hazardous Substance or for the treatment,
storage or Disposal of Hazardous Substances.
(vii) No Release of a Hazardous Substance has
occurred or is threatened on, at, or from the Property.
(viii) Neither Mortgagor nor the Property is subject
to any existing, pending or threatened suit, claim, notice of
violation or request for information under any Environmental Law.
(ix) Mortgagor is in compliance with all
Environmental Laws applicable to its operations at the Property.
3. Mortgagor covenants and agrees with Mortgagee that
so long as this Mortgage remains a lien on the Property that:
(i) Mortgagor shall comply with all Environmental
Laws in connection with its ownership or use of the Property or
any related property.
(ii) Mortgagor shall not suffer, cause or permit
the Disposal of Hazardous Substances at the Property.
(iii) Mortgagor shall not suffer, cause or permit
the generation, handling, processing, use, or storage of
Hazardous Substances on the Property except in compliance with
all Environmental Laws.
(iv) Mortgagor shall promptly notify Mortgagee in
the event of the Disposal any Hazardous Substance at the
Property, or any Release, or threatened Release, of a Hazardous
Substance, from the Property.
(v) Mortgagor shall allow Mortgagee and its agent
access to the Property at all times and permit such inspections,
tests, drilling of monitoring xxxxx, soil borings or other
analysis of the Property as Mortgagee may reasonably require.
(vi) Mortgagor, at its expense and at Mortgagee's
request, shall provide to Mortgagee, updated Environmental
Questionnaires and/or Environmental Reports concerning the
Property.
(vii) Mortgagor shall deliver promptly to Mortgagee
(a) copies of any documents received from the United States
Environmental Protection Agency or any state, county or municipal
environmental or health agency concerning Mortgagor's operations
at the Property and (b) copies of any documents submitted by
Mortgagor to the United States Environmental Protection Agency or
any state, county or municipal environmental or health agency
concerning its operations at the Property.
4. Xxxxxxxxx agrees to indemnify, defend, and hold
harmless Mortgagee from and against any and all liabilities,
claims, damages, penalties, expenditures, losses, or charges,
including, but not limited to, all costs or investigation,
monitoring, legal representation, remedial response, removal,
restoration or permit acquisition, which may now or in the future
be undertaken, suffered, paid, awarded, assessed, or otherwise
incurred by Mortgagee or any other person or entity as a result
of the presence of, Release of or threatened Release of Hazardous
Substance on, in, under or near the Property. The liability of
Mortgagor to Mortgagee under the covenants of this Section is not
limited by any exculpatory provisions in the note or in the other
documents securing the loan and shall survive any foreclosure of
this Mortgage, transfer of the Property by deed in lieu of
foreclosure or any other transfer or termination of this Mortgage
regardless of the means of such transfer or termination.
5. If Mortgagor defaults on any of its obligations
pursuant to this Mortgage, the note or any other document
securing the loan, Mortgagee or its designee shall have the
right, to enter upon the Property and conduct such tests,
investigation and sampling, including but not limited to,
installation of monitoring xxxxx, as shall be reasonably
necessary for Mortgagee to determine whether any Disposal of
Hazardous Substances has occurred on, at or near the Property.
The costs of all such tests, investigations and samplings shall
be added to the balance of the loan.
6. Xxxxxxxxx agrees that Mortgagee shall not be
liable in any way for the completeness or accuracy of any
Environmental Report or the information contained therein.
Xxxxxxxxx further agrees that Mortgagee has no duty to warn
Xxxxxxxxx or any other person or entity about any actual or
potential environmental contamination or other problem that may
have become apparent or will become apparent to Mortgagee.
TAYCO REALTY CORPORATION
By: ______________________________
Name:
Title:
XXXXXX DEVICES, INC.
By: ______________________________
Name:
Title:
SCHEDULE A
PARCEL A
ALL THAT TRACT OR PARCEL OF LAND, situate in the City
of North Tonawanda, County of Niagara and State of New York,
being part of Tonawanda Island as shown on Map entitled "Map of
Tonawanda Island, North Tonawanda, N.Y." made by T.W. Barrally,
C.E., in 1922 and filed in the Niagara County Clerk's Office on
April 4, 1923 under Cover No.459, subsequently in Book 24 of Maps
at page 485, now in Book 18 of microfilmed Maps at Pages 1758 and
1759, bounded and described as follows:
BEGINNING at a point in the easterly line of Michigan
Street (as widened to 80 feet by Xxxx recorded in the Niagara
County Clerk's Office in Liber 1357 of Deeds at Page 383),
distant 165.03 feet south of the north liine of lands conveyed to
Tayco Realty Corporation by Deed recorded in the Niagara County
Clerk's Office in Liber 1629 of Deeds at Page 57;
THENCE easterly, forming an exterior angle of 89
degrees 59 feet21 inches with the said easterly line of said
Michigan Street, 175 feet;
THENCE southerly, and parallel with the easterly line
of said Michigan Street, 70 feet;
XXXXXX xxxxxxxx, with the first described course, 175
feet to the said easterly line of Michigan Street, 80 feet wide;
THENCE northerly, along the said easterly line of
Michigan Street, 70 feet to the point and place of beginning.
PARCEL B
ALL THAT TRACT OR PARCEL OF LAND, situate in the City
of North Tonawanda, County of Niagara and State of New York,
being part of Tonawanda Island as shown on Map entitled "Map of
Tonawanda Island, North Tonawanda, N.Y." made by T.W. Barrally,
C.E., in 1922 and filed in the Niagara County Clerk's Office on
April 4, 1923 under Cover No. 459, subsequently in Book 24 of
Maps at Page 485, now in Book 18 of Microfilmed Maps at Pages
1758 and 1759, bounded and described as follows:
BEGINNING at a point located on the easterly line of
Michigan Street (as widened to 80 feet by Xxxx recorded in the
Niagara County Clerk's Office in Liber 1357 of Deeds at Page
383), said point being 117.0 feet southerly from the
southwesterly corner of lands conveyed to Tayco Realty
Corporation by Deed recorded in the Niagara County Clerk's Office
in Liber 1629 of Deeds at Page 57; as measured along said easterly
line of said Michigan Street recorded in Liber 1357 of Deeds at
Page 383, said point also being located on the southerly line of
Xxxxxx Drive (66.0 feet wide);
THENCE continuing southerly, along the formerly
easterly line of Michigan Street recorded in Liber 1357 of Deeds
at Page 383, a distance of 308.0 feet to the northerly line of
Bridge Street (60.0 feet wide);
THENCE westerly, along the northerly line of Bridge
Street, 143.16 feet;
THENCE northeasterly, forming an interior angle of 74
degrees 02 feet 19 inches and along (New) Michigan Street, as now
laid out (66.0 feet wide), 316.24 feet;
THENCE easterly, forming an interior angle of 111
degrees 23 feet 41 inches , a distance of 27.16 feet to the point
and place of beginning.
PARCEL C
ALL THAT TRACT OR PARCEL OF LAND, situate in the City
of North Tonawanda, county of Niagara and State of New York,
shown on a map entitled "Map of Tonawanda Island, North
Tonawanda, NY" made by T.T. Barrally, C.E., in 1922 and filed
in the Niagara County clerk's Office on April 4, 1923 under Cover
No. 459, subsequently in Book 24 of Maps at Page 485, now in book
18 of Microfilmed Maps at pages 1758 and 1759 and known as part of
Tonawanda Island in said City, and more particularly bounded and
described as follows:
BEGINNING at the intersection of the easterly line of
Michigan Street (as widened to 80 feet by Xxxx recorded in the
Niagara County clerk's Office in Liber 1357 of Deeds at Page 383)
ane the northerly line of Xxxxxx Drive (66 feet) as now laid
out;
THENCE easterly along the said northerly line of Xxxxxx
Drive, 218.96 feet;
THENCE northerly at right angles to said northerly line
of said Xxxxxx Drive, 30.17 feet;
THENCE northeasterly at an exterior angle of 135
degrees 04 feet 41 inches, 161.97 feet;
THENCE easterly at an exterior angle of 129 degrees 29
feet 13 inches and along the northerly line of lands conveyed to
the Outboard Boating Club of Tonawandas, Inc. by Xxxx recorded in
the Niagara County Clerk's Office in Liber 1553 of Deeds at Page
1194, 200 feet to the westerly line of the Niagara River or
Little Niagara River or Inner Harbor, so called;
THENCE northerly along the said westerly line of the
Niagara River, 275 feet, more or less, to the southerly line of
lands conveyed to Xxxxx Boys, Inc. by Xxxx recorded in the
Niagara County Clerk's Office in liber 1552 of Deeds at Page 428;
XXXXXX xxxxxxxx and along a southerly line of said
Xxxxx Boys, Inc. lands, 100 feet;
THENCE northerly parallel with the east line of
Michigan Street, 123 feet to an angle in said lands of Xxxxx
Boys, Inc.;
XXXXXX xxxxxxxx along the northerlymost southerly
course of said lands of Xxxxx Boys, Inc. a distance of 432 feet
to said easterly line of Michigan Street;
THENCE southerly, along the said easterly line of
Michigan Street 165.03 feet;
THENCE easterly at an interior angle of 89 degrees 59
feet 21 inches, 175 feet;
THENCE southerly parallel with the said easterly line
of michigan Street, 70 feet;
THENCE westerly along a line forming an interior angle of
90 degrees 01 feet 39 inches with the said eaterly line of said
Michigan Street, 175 feet;
THENCE southerly along the said easterly line of Michigan
Street, 287.94 feet, to the point and place of beginning.
