EXHIBIT 5
M&T BANK
MANUFACTURERS AND TRADERS TRUST COMPANY
CREDIT LINE MORTGAGE
DATE: AS OF APRIL 20, 2005
MORTGAGOR: MAJESTIC EMPIRE HOLDINGS, L.L.C. A(n) individual(s) corporation
limited liability company partnership ____________ organized and registered
under the laws of the State of NEVADA Organizational Identification Number (if
any): ________________ (Note: this number is not the same as the Taxpayer
Identification Number.) Chief executive office/residence: C/O THE BRIAD GROUP,
00 XXXXX XXXXXXX, XXXXXXXXXX, XXX XXXXXX 00000
MORTGAGEE: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation having offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000, Attn:
General Counsel.
IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE TERMS OF THIS MORTGAGE AND THE
TERMS OF THE COMMITMENT LETTER DATED AS OF APRIL 20, 2005, FROM MORTGAGEE TO
MORTGAGOR RELATING TO THIS LOAN (AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
THE "COMMITMENT LETTER"), UNLESS OTHERWISE REQUIRED TO ASSURE THE ENFORCEABILITY
OF MORTGAGEE'S RIGHTS HEREUNDER, THE TERMS OF THE COMMITMENT LETTER SHALL
CONTROL.
THIS IS A CREDIT LINE MORTGAGE PURSUANT TO SECTION 253-B OF THE TAX LAW AND
SECTION 281 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. THE MAXIMUM
PRINCIPAL AMOUNT THAT IS OR UNDER ANY CONTINGENCY MAY BE SECURED UNDER THIS
MORTGAGE EQUALS $6,000,000.00 WHICH DOES NOT EXCEED THE INDEBTEDNESS (DEFINED
BELOW). THE NOTE OR OTHER FINANCING AGREEMENTS CONTEMPLATE A SERIES OF ADVANCES,
PAYMENTS AND RE-ADVANCES AND LIMITS THE AGGREGATE PRINCIPAL AMOUNT WHICH MAY BE
OUTSTANDING AT ANY ONE TIME TO THE MAXIMUM PRINCIPAL AMOUNT THAT IS SET FORTH IN
THE NOTE OR OTHER FINANCING AGREEMENTS. THIS MORTGAGE SECURES NOT ONLY ALL OF
THE INDEBTEDNESS ORIGINALLY ARISING UNDER THE NOTE, BUT ALSO ALL INDEBTEDNESS
CREATED BY SUBSEQUENT ADVANCES AND RE-ADVANCES UNDER THE NOTE MADE WITHIN 20
YEARS OF THE RECORDING OF THIS MORTGAGE.
MORTGAGOR WARRANTS TO THE MORTGAGEE THAT THE PREMISES ARE NEITHER USED FOR
RESIDENTIAL PURPOSES NOR IMPROVED BY ONE- TO SIX-FAMILY DWELLINGS.
WITNESSETH, to secure the payment of an indebtedness in the principal sum of SIX
MILLION Dollars ($6,000,000.00), lawful money of the United States, together
with interest thereon and other charges with respect thereto, to be paid
according to a certain bond, note or other obligation dated on or about APRIL
25, 2005, (i) made and delivered by Mortgagor to Mortgagee, Mortgagor hereby
mortgages to Mortgagee, as continuing and collateral security for the payment of
any and all indebtedness, liabilities and obligations now existing or which may
hereafter arise by reason of the Note, the Guaranty, this Mortgage or any
amendments, renewals, extensions, modifications or substitutions of the Note,
the Guaranty or this Mortgage (collectively, the "Indebtedness"), the premises
described on the attached SCHEDULES A-19 THROUGH A-22.
TOGETHER with all buildings, structures and other improvements now or
hereafter erected, constructed or situated upon said premises, and all fixtures
and equipment and other personal property now or hereafter affixed to, or used
in connection with, said premises and any and all replacements thereof and
additions thereto, all of which shall be deemed to be and remain and form a part
of said premises and are covered by the lien of this Mortgage (said premises,
buildings, structures, other improvements, fixtures and equipment and other
personal property being collectively referred to as the "Premises"),
TOGETHER with all strips and gores of land adjoining or abutting the
Premises,
TOGETHER with all right, title and interest of Xxxxxxxxx in and to all
streets, alleys, highways, waterways and public places open or proposed in front
of, running through or adjoining the Premises, and all easements and rights of
way, public and private, now or hereafter used in connection with the Premises,
TOGETHER with all tenements, hereditaments and appurtenances and all
the estate and rights of Xxxxxxxxx in and to the Premises,
TOGETHER with all awards heretofore or hereafter made by any federal,
state, county, municipal or other governmental authority, or by whomsoever made
in any condemnation or eminent domain proceedings whatsoever, to the present or
subsequent owners of the Premises or any portion thereof, for the acquisition
for public purposes of the Premises or any portion thereof or any interest
therein or any use thereof, or for consequential damages on account thereof,
including any award for any change of grade of streets affecting the Premises or
any portion thereof and any award for any damage to the Premises or any portion
thereof or any interest therein or any use thereof.
MORTGAGOR COVENANTS WITH MORTGAGEE SO LONG AS THIS MORTGAGE IS IN
EFFECT AS FOLLOWS:
1. PAY INDEBTEDNESS. The indebtedness shall be paid as provided in the
Note or Guaranty, as the case may be, and as provided herein.
2. INSURANCE. Mortgagor shall keep the Premises insured against each
risk to which the Premises may from time to time be subject (including fire,
vandalism and other risks covered by all risk insurance; if the Premises or any
portion thereof are located in an area identified as an area having special
flood hazards and in which flood insurance has been made available, flood; and
loss of rents by reason of such risks) for the benefit of Mortgagee. Such
insurance shall be provided in such amounts, for such periods, in such form,
with such special endorsements, on such terms and by such companies and against
such risks as shall be satisfactory to Mortgagee. Without limiting the
generality of the preceding two sentences, each policy pursuant to which such
insurance is provided shall contain a mortgagee clause, in form and substance
satisfactory to Mortgagee, (a) naming Mortgagee as mortgagee and (b) providing
that (i) all moneys payable pursuant to such insurance shall be payable to
Mortgagee, (ii) such insurance shall not be affected by any act or neglect of
Mortgagor or Mortgagee, any occupancy, operation or use of the Premises or any
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portion thereof for purposes more hazardous than permitted by the terms of such
policy, any foreclosure or other proceeding or notice of sale relating to the
Premises or any portion thereof or any change in the title to or ownership of
the Premises or any portion thereof and (iii) such policy and such mortgagee
clause may not be canceled or amended except upon thirty (30) days' prior
written notice to Mortgagee. Mortgagor hereby assigns and shall deliver each
policy pursuant to which any such insurance is provided to Mortgagee. The
acceptance by Mortgagee of such policies from Mortgagor shall not be deemed or
construed as an approval by Mortgagee of the form, sufficiency or amount of such
insurance, Mortgagee does not in any way represent that such insurance, whether
in scope or coverage or limits of coverage, is adequate or sufficient to protect
the business or interest of Xxxxxxxxx. In the event of the foreclosure of this
Mortgage, or a transfer of title to the Premises in extinguishment of the
Indebtedness, all right, title and interest of Mortgagor in and to any such
policies then in force shall pass to the purchaser or grantee of the Premises.
All the provisions of this Section 2 and any other provisions of this Mortgage
pertaining to insurance which may be required under this Mortgage shall be
construed with Section 254, Subdivision 4 of the New York Real Property Law,
but, said Section 254 to the contrary notwithstanding, Mortgagor consents that
Mortgagee may, without qualification or limitation by virtue of said Section
254, retain and apply the proceeds of any such insurance in satisfaction or
reduction of the Indebtedness, whether or not then due and payable, or it may
pay the same, wholly or in part, to any Mortgagor for the repair or replacement
of the Premises or for any other purpose satisfactory to Mortgagee, without
affecting the lien of this Mortgage for the full amount of the Indebtedness
before the making of such payment.
3. ALTERATIONS, DEMOLITION OR REMOVAL. No building, structure, other
improvement, fixture or equipment or other personal property constituting any
portion of the Premises shall be MATERIALLY removed, demolished or substantially
altered EXCEPT AS ANTICIPATED BY THE COMMITMENT LETTER OR without the prior
written consent of Mortgagee, EXCEPT FOR MINOR WORK DONE IN THE ORDINARY COURSE
OF BUSINESS AND THE REPLACEMENT OF WORN OUT FIXTURES AND PERSONAL PROPERTY WITH
ITEMS OF AT LEAST EQUAL VALUE.
4. WASTE AND CHANGE IN USE. No Mortgagor shall commit any waste on the
Premises or make any change in the use of the Premises which may in any MATERIAL
way increase any ordinary fire, environmental or other risk arising out of
construction or operation.
5. MAINTENANCE AND REPAIRS. Mortgagor shall keep and maintain all
buildings, structures, other improvements, fixtures and equipment and other
personal property constituting any portion of the Premises and the sidewalks and
curbs abutting the Premises in good order and rentable and tenantable condition
and state of repair. In the event that the Premises or any portion thereof shall
be damaged or destroyed by fire or any other casualty, or in the event of the
condemnation or taking of any portion of the Premises as a result of any
exercise of the power of eminent domain, Mortgagor shall promptly restore,
replace, rebuild or alter the same as nearly as possible to the condition
immediately prior to such fire, other casualty, condemnation or taking without
regard to the adequacy of any proceeds of any insurance or award received.
Mortgagor shall give prompt written notice to Mortgagee of any such damage or
destruction or of the commencement of any condemnation or eminent domain
proceeding affecting the Premises or any portion thereof,
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6. EXISTENCE AND AUTHORITY. Mortgagor represents and warrants, and
continues to represent and warrant as long as this Mortgage is in effect, as
follows: (a) If Mortgagor is not a natural person (e.g., corporation,
partnership, limited liability company), it is duly organized, validly existing
and in good standing under the laws of the above-named state of organization and
will do all things necessary to preserve and keep in full force and effect the
existence, franchises, rights and privileges of Mortgagor as a the type business
entity it was as of the date of this Mortgage, under the laws of the state of
its organization; (b) Mortgagor has the full power and authority to grant the
mortgage lien hereunder and to execute, deliver and perform its obligations in
accordance with this Mortgage; (c) the execution and delivery of this Mortgage
will not (i) violate any applicable law of any governmental authority or any
judgment or order of any court, other governmental authority or arbitrator; (ii)
violate any agreement to which Xxxxxxxxx is a party; or (iii) result in a lien
or encumbrance on any of its assets (other than the mortgage lien hereunder);
(d) Mortgagor's certificate of incorporation, by-laws, partnership agreement,
articles of organization or other organizational or governing documents
("Governing Documents") do not prohibit any term or condition of this Mortgage;
(d) each authorization, approval or consent from, each registration and filing
with, each declaration and notice to, and each other act by or relating to, any
party required as a condition of Xxxxxxxxx's execution, delivery or performance
of this Mortgage (including any shareholder or board of directors or similar
approvals) has been duly obtained and is in full force and effect and no other
action is required under its Governing Documents or otherwise; and (e) Mortgagor
has the power and authority to transact the business in which it is engaged and
is duly licensed or qualified and fn good standing in each jurisdiction in which
the conduct of its business or ownership of property requires such licensing or
such qualifications.
7. TAXES AND ASSESSMENTS. Unless paid from an escrow established
pursuant to Section 8 of this Mortgage, Mortgagor shall pay all taxes, general
and special assessments and other governmental impositions with respect to the
Premises before the end of any applicable grace period. Upon request by
Mortgagee, Mortgagor shall promptly deliver to Mortgagee receipted bills showing
payment of all such taxes, assessments and impositions within the applicable
grace period.
8. ESCROW FOR TAXES, ASSESSMENTS AND INSURANCE. TO THE EXTENT REQUIRED
BY THE COMMITMENT LETTER, upon request by Mortgagee, Mortgagor shall pay (a)
monthly to Mortgagee on or before the first day of each and every calendar
month, until the Indebtedness is fully paid, a sum equal to one-twelfth (1/12th)
of the yearly taxes, general and special assessments, other governmental
impositions and other liens and charges with respect to the Premises to be
imposed for the ensuing year, as estimated by Mortgagee in good faith, and
annual premiums for insurance on the Premises and (b) an initial payment such
that, when such monthly payments are added thereto, the total of such payments
will be sufficient to pay such taxes, assessments, impositions and other liens
and charges and such insurance premiums on or before the date when they become
due. Absent manifest error, Mortgagee's calculation as to the amount to be paid
into Escrow shall be deemed conclusive. So long as no Event of Default (as
hereinafter defined) shall have occurred or exists, Mortgagee shall hold such
payments in trust in an account maintained with Mortgagee without obligation to
pay interest thereon, except such interest as may be mandatory by any applicable
statute, regulation or other law, to pay, to the extent funds are available,
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such taxes, assessments, impositions and other liens and charges and such
insurance premiums within a reasonable time after they become due; provided,
however, that upon the occurrence or existence of any Event of Default,
Mortgagee may apply the balance of any such payments held to the Indebtedness,
If the total of such payments made by any Mortgagor shall exceed the amount of
such payments made by Mortgagee, such excess shall be held or credited by
Mortgagee for the benefit of Mortgagor. If the total of such payments made by
any Mortgagor shall be less than the amount of such taxes, assessments,
impositions and other liens and charges and such insurance premiums, then
Mortgagor shall pay to Mortgagee any amount necessary to make up the deficiency
on or before the date when any such amount shall be due.
NOTWITHSTANDING THE FOREGOING, PRIOR TO AN EVENT OF DEFAULT OR THE
FAILURE (EVEN IF CURED) OF MORTGAGOR TO KEEP ALL REQUIRED INSURANCE IN FORCE,
MORTGAGOR OR AN APPROVED TENANT MAY PROVIDE COVERAGE UNDER A BLANKET POLICY
COVERING MULTIPLE PROPERTIES AND WHILE SUCH BLANKET COVERAGE IS PERMITTED
MORTGAGOR WILL NOT BE REQUIRED TO ESCROW FOR INSURANCE HEREUNDER.
9. LEASES. THE MORTGAGOR HAS ENTERED INTO A LEASE APPROVED IN WRITING
BY MORTGAGEE FOR EACH OF THE 4 PROPERTIES ENCUMBERED HEREBY WITH EITHER BRIAD
RESTAURANT GROUP, L.L.C. ("BRG") OR XXXXX XXXXX, L.L.C. ("BW"; BRG AND BW ARE
HEREIN INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS "BRIAD TENANT"; EACH SUCH
APPROVED LEASE WITH A BRIAD TENANT AND ANY FUTURE LEASE APPROVED IN WRITING BY
MORTGAGEE IS HEREIN INDIVIDUALLY AND COLLECTIVELY CALLED AN "APPROVED LEASE").
Pursuant to Section 2131-f of the New York Real Property Law, Mortgagor shall
NOT, EXCEPT AS PERMITTED BY THE COMMITMENT LETTER, (a) amend, cancel, abridge,
terminate, or otherwise modify any lease of the Premises or of any portion
thereof (OR ANY GUARANTY RELATING THERETO) or (b) accept any prepayment of
installments of rent to become due thereunder for more than one month in
advance, without the prior written consent of Mortgagee. Mortgagor shall NOT
make any new lease in place of or any lease renewal or extension of any lease of
the Premises or any portion thereof (other than those that Mortgagor as landlord
may be required to grant by the terms of an existing lease) without the prior
written consent of Mortgagee, Upon request by Mortgagee, Mortgagor shall
promptly furnish to Mortgagee a written statement containing the names and
mailing addresses of all lessees (OR ANY GUARANTORS OF THE LEASE) of the
Premises or of any portion thereof, the terms of their respective leases, the
space occupied and the rentals payable thereunder and copies of their respective
leases (AND ANY GUARANTEES) and shall cooperate in effecting delivery of notice
of this covenant to each affected lessee.
10. ASSIGNMENT OF LEASES AND RENTS. Mortgagor hereby assigns to
Mortgagee all existing and future leases of the Premises or any portion thereof
(including any amendments, renewals, extensions or modifications thereof) and
the rents, issues and profits of the Premises including accounts receivable for
use of the Premises for hotel or lodging services ("Accounts"), as further
security for the payment of the Indebtedness, and Mortgagor grants to Mortgagee
the right to enter upon and to take possession of the Premises for the purpose
of collecting the same and to let the Premises or any portion thereof, and after
payment of each cost and expense (including each fee and disbursement of counsel
to Mortgagee) incurred by Mortgagee in such entry and collection, to apply the
remainder of the same to the Indebtedness, without affecting its right to
maintain any action theretofore instituted, or to bring any action thereafter,
to enforce the payment of the Indebtedness. In the event Mortgagee exercises
such rights, it shall not thereby be deemed a mortgagee in possession, and it
shall not in any way be made liable for any act or omission. No Mortgagor shall
assign such leases, rents, issues or profits or any interest therein or grant
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any similar rights to any other person without Mortgagee's prior written
consent. Mortgagee hereby waives the right to enter upon and to take possession
of the Premises for the purpose of collecting said rents, issues and profits,
and Xxxxxxxxx shall be entitled to collect the same, until the occurrence or
existence of any Event of Default, but such right of Mortgagor may be revoked by
Mortgagee upon the occurrence or existence of any Event of Default, Upon the
occurrence or existence of any Event of Default, Mortgagor shall pay monthly in
advance to Mortgagee, or to any receiver appointed to collect said rents, issues
and profits, a fair and reasonable monthly rental value for the use and
occupation of the Premises, and upon default in any such payment shall vacate
and surrender the possession of the Premises to Mortgagee or to such receiver,
and in default thereof may be evicted by summary proceedings pursuant to Article
7 of the New York Real Property Actions and Proceedings Law. The rights and
remedies under this section and any separately recorded assignment of rents
and/or leases in favor of Mortgagee shall be cumulative. In the event of any
irreconcilable inconsistencies between such agreements and this section, the
separately recorded assignment of rents and/or leases shall control.
11. SECURITY AGREEMENT. This Mortgage constitutes a security agreement
under the New York Uniform Commercial Code in effect in the State of New York,
as amended from time to time (the "UCC") and Mortgagor hereby grants to
Mortgagee a continuing security interest in all personal property and fixtures
of Mortgagor, whether now existing or owned or hereafter arising or acquired,
whether or not subject to the UCC, used in connection with any portion of or
constituting any portion of the Premises and in the proceeds, rents, issues,
profits and Accounts arising therefrom, to secure the indebtedness. Mortgages
shall have the right to file in any public office, without the signature of
Xxxxxxxxx, each financing statement relating to such personal property and
proceeds therefrom. With respect to such personal property and proceeds,
Mortgagee shall have each applicable right and remedy of a secured party under
the UCC and each applicable right and remedy pursuant to any other law or
pursuant to this Mortgage. Xxxxxxxxx acknowledges and agrees that, in applying
the law of any jurisdiction that at any time enacts all or substantially all of
the uniform provisions of Revised Article 9 of the Uniform Commercial Code (1999
Official Text), the foregoing collateral description covers all assets of
Mortgagor used in connection with any portion of or constituting any portion of
the Premises.
12. NO TRANSFER. EXCEPT AS OTHERWISE PERMITTED BY THE COMMITMENT
LETTER, Mortgagor shall not, without Mortgagee's prior written consent, sell,
convey or transfer the Premises or any portion thereof or any interest therein
or contract to do so. If any Mortgagor, OR ANY PERSON BECOMING LIABLE HEREUNDER
("Debtor') or any endorser or guarantor of the Indebtedness (a "Guarantor") is a
corporation, or if any other person liable with respect to the Indebtedness or
any portion thereof other than Mortgagor or any general partner of Mortgagor,
Debtor or any Guarantor, is a corporation, any direct or indirect change in the
beneficial ownership or number of issued and outstanding shares of any class of
stock of such Mortgagor, Debtor, Guarantor or general partner, whether by
operation of law or otherwise, after which the percentage of such shares
beneficially owned by any person or group of persons having beneficial ownership
of any such shares has changed by at least ten percent (10%) more or less than
it was on the date of this Mortgage shall be deemed a sale, conveyance or
transfer of the Premises within the meaning of this Section 12. If any
Mortgagor, Debtor or Guarantor is a partnership, including a limited liability
partnership, any change in the partnership interests of the general partners of
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such Mortgagor, Debtor or Guarantor or in the composition of the general
partners of such Mortgagor, Debtor or Guarantor, whether by operation of law or
otherwise, shall be deemed a sale, conveyance or transfer of the Premises within
the meaning of this Section 12. If any Mortgagor, Debtor or Guarantor is a
limited liability company, any change in the direct or indirect membership
interest of any member or class of members of such Mortgagor, Debtor or
Guarantor, whether by operation of law or otherwise, after which the percentage
of such membership interest owned by any such member or class has changed by at
least ten percent (10%) more or less than it was on the date of this Mortgage
shall be deemed a sale, conveyance or transfer of the Premises within the
meaning of this Section 12. IF ANY MORTGAGOR OR GUARANTOR IS A LIMITED LIABILITY
COMPANY, ANY CHANGE IN THE MEMBERSHIP INTERESTS OF THE MEMBERS OF SUCH MORTGAGOR
OR GUARANTOR OR CHANGE IN THE MANAGING MEMBER WHETHER BY OPERATION OF LAW OR
OTHERWISE, SHALL BE DEEMED A SALE OR CONVEYANCE OR TRANSFER OF THE PREMISES
WITHIN THE MEANING OF THIS SECTION 72. THE PROVISIONS OF THIS SECTION 72 SHALL
NOT APPLY TO THE COMMITMENT LETTER NOR TO ANY TRANSFER SPECIFICALLY PERMITTED
THEREIN.
13. NO SECONDARY FINANCING OR OTHER LIENS. Mortgagor shall not, without
Mortgagee's prior written consent, mortgage, pledge, assign, grant a security
interest in or cause any other lien or encumbrance to be made or permit any
other lien or encumbrance to exist upon the Premises or any portion thereof
except for (a) taxes and assessments not yet delinquent and (b) any mortgage,
pledge, security interest, assignment or other lien or encumbrance to Mortgagee
or any affiliate of Mortgagee (an "Affiliate").
14. COMPLIANCE WITH LAWS. Mortgagor represents and warrants to
Mortgagee, and continues to represent and warrant as long as this Mortgage is in
effect, as follows: (a) TO THE BEST OF MORTGAGOR'S knowledge, the buildings,
structures and other improvements now constituting any portion of the Premises
are in full compliance with all applicable statutes, regulations and other laws
(including all applicable zoning, building, fire and health codes and ordinances
and the Americans With Disabilities Act of 1990) and all applicable deed
restrictions, if any, and is not and shall not be used for any illegal purpose;
(b) such compliance is based solely upon Mortgagor's ownership of the Premises
and not upon title to or interest in any other property, Mortgagor shall comply
with or cause compliance with all statutes, regulations and other laws
(including all applicable zoning, building, fire and health codes and ordinances
and the Americans With Disabilities Acts of 1990), all other requirements of all
governmental authorities whatsoever having jurisdiction aver or with respect to
the Premises or any portion thereof or the use or occupation thereof and with
all applicable deed restrictions, if any; provided, however, that Mortgagor may
postpone such compliance if and so long as the validity or legality of any such
requirement or restriction shall be contested by such Mortgagor, with diligence
and in good faith, by appropriate legal proceedings and Mortgagee is satisfied
that such non-compliance will not impair or adversely affect the value of its
security.
15. WARRANTY OF TITLE; TITLE INSURANCE. Mortgagor represents and
warrants to Mortgagee, and continues to represent and warrant as long as this
Mortgage is in effect, good and marketable title in fee simple absolute to the
Premises, Upon request by Mortgagee, Mortgagor shall furnish to Mortgagee at
Mortgagor's own cost and expense a title insurance policy in the then amount of
the Indebtedness, (a) naming Mortgagee as mortgagee, (b) covering the lien on
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the Premises granted pursuant to this Mortgage, (c) containing no exception not
approved by Mortgagee, (d) issued by a title insurance company qualified to do
business in the State of New York and satisfactory to Mortgagee and (e)
otherwise in form and substance satisfactory to Mortgagee.
16. CERTAIN RIGHTS AND OBLIGATIONS.
(a) Mortgagee may take such action as Mortgagee deems
appropriate to protect the Premises or the status or priority of the lien of
this Mortgage, including: entry upon the Premises to protect the Premises from
deterioration or damage, or to cause the Premises to be put in compliance with
any governmental, insurance rating or contract requirements; payment of amounts
due on liens having priority over this Mortgage; payment of any tax or charge
for purposes of assuring the priority or enforceability of this Mortgage;
obtaining insurance on the Premises (including flood insurance); or commencement
or defense of any legal action or proceeding to assert or protect the validity
or priority of the lien of this Mortgage. On demand, Mortgagor shall reimburse
Mortgagee for all expenses in taking any such action, with interest, and the
amount thereof shall be secured by this Mortgage and shall, to the extent
permitted by law, be in addition to the maximum amount of the Indebtedness
evidenced by the Note.
(b) Mortgagor authorizes Mortgagee, without notice, demand or
any reservation of rights and without affecting this Mortgage, from time to
time: (i) to accept from any person or entity and hold additional collateral for
the payment of the Indebtedness or any part thereof, and to exchange, enforce or
refrain from enforcing, or release such collateral or any part thereof; (ii) to
accept and hold any endorsement or guaranty of payment of the Indebtedness or
any part thereof, and to release or substitute any such obligation of any such
Guarantor or any person or entity who has given any collateral as security for
the payment of the Indebtedness or any part thereof, or any other person or
entity in any way obligated to pay the Indebtedness or any part thereof, and to
enforce or refrain from enforcing, or compromise or modify, the terms of any
obligation of any such Guarantor, person or entity; (iii) upon the occurrence of
an Event of Default, to direct the order or manner of the disposition of any and
all collateral and the enforcement of any and all endorsements and guaranties
relating to the Indebtedness or any part thereof as Mortgagee, in its sole
discretion, may determine; and (iv) upon the occurrence of an Event of Default
to determine the manner, amount and time of application of payments and credits,
if any, to be made on all or any part of any component or components of the
Indebtedness (whether principal, interest, costs and expenses, or otherwise)
including if the amount of the Indebtedness secured by this Mortgage is less
than the total amount of the obligations under the Note or the Guaranty, to make
any such application to such obligations, if any, in excess of the amount of the
Indebtedness secured by this Mortgage.
(c) Notwithstanding the occurrence of an Event of Default,
this Mortgage shall remain valid, binding and enforceable: (i) without deduction
by reason of any setoff, defense or counterclaim of Mortgagor, Guarantor or
Debtor, (ii) without requiring protest or notice of nonpayment or notice of
default to Mortgagor, to Guarantor, to Debtor, or to any other person; (iii)
without demand for payment or proof of such demand; (iv) without requiring
Mortgagee to resort first to Mortgagor or to any other guaranty or any
collateral which Mortgagee may hold; (v) without requiring notice of acceptance
hereof or assent hereto by Mortgagee; and (vi) without requiring notice that any
indebtedness has been incurred or of the reliance by Mortgagee upon this
Mortgage; all of which Mortgagor hereby waives.
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(d) The enforceability of this Mortgage shall not be affected
by: (i) any failure to perfect or continue the perfection of any security
interest in or other lien on any other collateral securing payment of the
Indebtedness; (ii) the invalidity, unenforceability, or loss or change in
priority of any such security interest or other lien; (iii) any failure to
protect, preserve or insure any such collateral; (iv) any defense arising by
reason of the cessation from any cause whatsoever of liability of Debtor or any
Guarantor; (v) any compromise of any obligation of Mortgagor, Debtor or any
Guarantor; (vi) the invalidity or unenforceability of any of the Indebtedness;
or (vii) any renewal, extension, acceleration, or other change in the time for
payment of, or the terms of the interest on the Indebtedness or any part
thereof; all of which Mortgagor hereby waives.
(e) If Mortgagee shall receive from or on behalf of Mortgagor
any sum less than the full amount then due and payable, Mortgagee may, but shall
not be obligated to, accept the same and, if it elects to accept any such
payment, it may without waiving any Event of Default: (i) apply such payment on
account of the Indebtedness or any amount payable hereunder, or (ii) hold same
or any part thereof, without liability for interest, in a special account and
from time to time apply same or any part thereof as specified in subsection (i)
of this subsection.
17. LIEN LAW COVENANT. Mortgagor shall receive the advances secured by
this Mortgage and shall hold the right to receive such advances as a trust fund
in accordance with the provisions of Section 13 of the New York Lien Law.
18. APPLICATION OF AND INTEREST ON CONDEMNATION AWARD. Mortgagor
consents that Mortgagee may retain and apply the proceeds of any award by a
condemning authority in satisfaction or reduction of the Indebtedness, whether
or not then due and payable, or it may pay the same, wholly or in part, to
Mortgagor for the restoration or alteration of the Premises or for any other
purpose satisfactory to Mortgagee, without affecting the lien of this Mortgage
for the full amount of the Indebtedness before the making of such payment. In
the event of the condemnation or taking by eminent domain of the Premises or any
portion thereof, Mortgagee shall not be limited to the interest paid on the
award by the condemning authority, but shall be entitled to receive out of the
award interest on the Indebtedness in accordance with its terms.
19. APPOINTMENT OF RECEIVER. In addition to any other remedy, upon the
occurrence of any Event of Default, Mortgagee, in any action to foreclose this
Mortgage, shall be entitled, without notice or demand WITHOUT GIVING BOND TO
MORTGAGOR OR ANYONE CLAIMING BY, UNDER OR THROUGH MORTGAGOR and without regard
to the adequacy of any security for the Indebtedness or the solvency or
insolvency of any person liable for the payment thereof, to the appointment of a
receiver of the rents, issues and profits of the Premises.
20. SALE IN ONE OR MORE PARCELS. In case of a foreclosure sale, the
Premises may be sold in one or more parcels, any provision of any statute,
regulation or other law to the contrary notwithstanding.
21. ESTOPPEL STATEMENT. Upon request by Mortgagee, Mortgagor shall
furnish to Mortgagee within five (5) days if such request is made in person or
within FIFTEEN (15) days if such request is otherwise made a written statement
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xxxx acknowledged of the amount of the Indebtedness and whether any offsets or
defenses exist against the Indebtedness.
22. RIGHT TO INSPECT AND EXAMINE. Upon request by Xxxxxxxxx, Xxxxxxxxx
shall immediately permit Mortgagee and each officer, employee, accountant,
attorney and other agent of Mortgagee to enter and inspect the Premises and to
examine, audit, copy and extract each record of any Mortgagor relating to the
Premises or any portion thereof. PRIOR TO A DEFAULT HEREUNDER MORTGAGEE WILL
GIVE MORTGAGOR REASONABLE NOTICE AND SCHEDULE SUCH INSPECTIONS AND EXAMINATIONS
DURING NORMAL BUSINESS HOURS.
23. FINANCIAL STATEMENTS. Mortgagor shall provide, shall cause each
Guarantor and Debtor to provide, and shall use its best efforts to cause each
lessee of the Premises or any material portion thereof (a "Material Lessee") to
provide, to Mortgagee, in form satisfactory to Mortgagee, promptly upon request
by Mortgagee, all FINANCIAL AND OTHER INFORMATION REQUIRED BY THE COMMITMENT
LETTER with each statement of income, a certificate executed by such Mortgagor's
chief executive and chief financial officers or managing partners or members (A)
stating that the signers of the certificate have reviewed this Mortgage and the
operations and condition (financial or other) of such Mortgagor and any
subsidiaries during the relevant period and (B) stating that no Event of Default
occurred during the period, or if an Event of Default did occur, describing its
nature, the dates) of its occurrence or period of existence and what action
Mortgagor has taken with respect thereto.
24. AUTHORIZATION AND POWER OF ATTORNEY. Mortgagee is irrevocably and
unconditionally authorized to take, and Mortgagor irrevocably and
unconditionally appoints Mortgagee as the attorney-in-fact of such Mortgagor,
with full power of substitution and of revocation, to take, AFTER AN EVENT OF
DEFAULT, in the name of such Mortgagor or otherwise at the sole option of
Mortgagee, each action relating to the Premises or any portion thereof that,
subject to this Mortgage, such Mortgagor could take in the same manner, to the
same extent and with the same effect as if such Mortgagor were to take such
action; provided, however, that Mortgagee shall not have the right, pursuant to
such authorization or as such attorney-in-fact, to sell or otherwise dispose of
the Premises or any portion thereof. Such power of attorney is coupled with an
interest in favor of Mortgagee, and shall not be terminated or otherwise
affected by the death, disability or incompetence of any Mortgagor.
25. FURTHER ASSURANCES. Promptly upon request by Mortgagee, Xxxxxxxxx
shall execute and deliver each writing, and take each other action, that
Mortgagee shall REASONABLY deem necessary or desirable at the sole option of
Mortgagee (a) to perfect or accomplish any lien or security interest granted, or
assignment made, pursuant to this Mortgage (b) otherwise to accomplish any
purpose of this Mortgage; (c) in connection with any transaction contemplated by
this Mortgage; or (d) in connection with the Premises or any portion thereof.
26. ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
Mortgagor represents and warrants, and continues to represent and warrant as
long as this Mortgage is in effect, to Mortgagee that, TO THE BEST OF
MORTGAGOR'S KNOWLEDGE, EXCEPT AS SET FORTH IN ANY ENVIRONMENTAL REPORT
PREVIOUSLY DELIVERED TO MORTGAGEE OR AS SET FORTH IN THE COMMITMENT LETTER OR AS
SET FORTH AS THE RESTRICTIONS CURRENTLY OF RECORD AND REFLECTED IN MORTGAGEE'S
TITLE POLICY, (a) Mortgagor and the Premises are in compliance with each
statute, regulation or other law and each judgment, order or award of any court,
agency or other governmental authority or of any arbitrator (individually an
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"Environmental Requirement") relating to the protection of any water, water
vapor, land surface or subsurface, air, fish, wildlife, biota or other natural
resources or governing the use, storage, treatment, generation, transportation,
processing, handling, production or disposal of any chemical, natural or
synthetic substance, waste, pollutant or contaminant (collectively "Regulated
Materials"), (b) Mortgagor has not been charged with, or has received any notice
that such Mortgagor is under investigation for, the failure to comply with any
Environmental Requirement, nor has Mortgagor received any notice that Mortgagor
has or may have any liability or responsibility under any Environmental
Requirement with respect to the Premises or otherwise, (c) TO THE BEST OF
MORTGAGOR'S KNOWLEDGE, the Premises have never been used for (i) the storage,
treatment, generation, transportation, processing, handling, production or
disposal of Regulated Materials, except as permitted by law, (ii) a landfill or
other waste disposal site or (iii) military purposes, (d) no underground storage
tanks are located on the Premises, (e) the environmental media at the Premises
do not contain Regulated Materials beyond any legally permitted level, (f) there
has never been any release, threatened release, migration or uncontrolled
presence of any Regulated Materials on, at or from the Premises or, to the
knowledge of Mortgagor, within the immediate vicinity of the Premises and (g)
Mortgagor has not received any notice of any such release, threatened release,
migration or uncontrolled presence. Mortgagor shall not cause or permit the
Premises to be used in any way that would result in any of the representations
and warranties contained in the preceding sentence to be false or misleading at
any future time. To the extent any such representation or warranty at any time
is or becomes false or misleading, Mortgagor shall promptly notify Mortgagee
thereof. If at any time Mortgagor obtains any evidence or information which
suggests that potential environmental problems may exist on, at or about the
Premises, Mortgagee may request Mortgagor, at Xxxxxxxxx's own cost and expense,
to conduct and complete investigations, studies, sampling and testing with
respect to the Premises requested by Mortgagee. Mortgagor shall promptly furnish
to Mortgagee copies of all such investigations, studies, samplings and tests.
Mortgagor shall (a) conduct and complete all such investigations, studies,
samplings and testing, and all remedial, removal and other actions necessary
with respect to the Premises, in accordance with all applicable Environmental
Requirements and promptly furnish to Mortgagee copies of all documents generated
in connection therewith and (b) defend, reimburse, indemnify and hold harmless
Mortgagee, its employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses of whatever kind or nature, known or unknown, contingent or otherwise,
arising out of, or in any way related to, the violation of, or other liability
or responsibility under, any Environmental Requirements, or the release,
threatened release, migration or uncontrolled presence of any Regulated
Materials on, at or from the Premises including attorney and consultant fees,
investigation and laboratory fees, court costs and litigation expenses. In the
event this Mortgage is foreclosed, or Mortgagor tenders a deed in lieu of
foreclosure which Mortgagee agrees to accept, Xxxxxxxxx shall be responsible to
deliver the Premises to Mortgagee free of any and all Regulated Materials other
than any that are (a) normally used in Mortgagor's business and (b) located and
maintained thereon in compliance with all applicable Environmental Requirements
and in a condition that conforms with all applicable Environmental Requirements.
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The provisions of this Section 26 shall be in addition to any and all other
obligations and liabilities Mortgagor may have to Mortgagee at common law or any
ether agreement with Mortgagee, and shall survive the transactions contemplated
in this Mortgage and the termination of this Mortgage.
27. EVENTS OF DEFAULT.
(a) AN EVENT OF DEFAULT ("EVENT OF DEFAULT') WILL HAVE
OCCURRED IF, EXCEPT AS OTHERWISE SET FORTH IN THE COMMITMENT LETTER: (I) ANY
MORTGAGOR OR DEBTOR FAILS TO PAY WHEN DUE WHETHER BY ACCELERATION OR OTHERWISE
THE INDEBTEDNESS OR ANY PORTION THEREOF OR (HERE OCCURS ANY EVENT WHICH AFTER
NOTICE OR LAPSE OF TIME WILL PERMIT SUCH ACCELERATION; (II) ANY OF MORTGAGOR'S
DEBTS OR THOSE OF DEBTOR OR ANY GUARANTOR (WHICH IS MATERIAL) IS ACCELERATED OR
AN EVENT OCCURS WHICH AFTER NOTICE OR LAPSE OF TIME WOULD PERMIT SUCH
ACCELERATION; (III) ANY MORTGAGOR, DEBTOR OR GUARANTOR BREACHES OR IS IN DEFAULT
UNDER THE COMMITMENT LETTER OR THIS MORTGAGE (INCLUDING BUT NOT LIMITED TO ANY
DEFAULT IN THE PAYMENT OF ANY AMOUNT ANY MORTGAGOR IS OBLIGATED TO PAY PURSUANT
TO SECTIONS 2, 6, 8 OR 16 OF THIS MORTGAGE OR IN THE PERFORMANCE OF ANY
OBLIGATION OF ANY MORTGAGOR PURSUANT TO SECTIONS 23 OR 26 OF THIS MORTGAGE) OR
MORTGAGOR IS IN DEFAULT UNDER ANY OTHER AGREEMENT WITH THE MORTGAGEE OR
MORTGAGEE'S AFFILIATES INCLUDING, WITHOUT LIMITATION, M&T REAL ESTATE TRUST;
(IV) ANY MORTGAGOR, DEBTOR OR GUARANTOR IS DISSOLVED, SUSPENDS HIS, HER OR ITS
PRESENT BUSINESS, AGREES TO A MERGER OR OTHER ABSORPTION OR TO TRANSFER OR
OTHERWISE DISPOSE OF SUBSTANTIALLY ALL OF HIS, HER OR ITS ASSETS, MAKES OR SENDS
NOTICE OF A BULK SALE, BECOMES INCOMPETENT OR INSOLVENT (HOWEVER SUCH INSOLVENCY
IS EVIDENCED), GENERALLY FAILS TO PAY HIS, HER OR ITS DEBTS AS THEY BECOME DUE,
FAILS TO PAY, WITHHOLD OR COLLECT ANY TAX AS REQUIRED BY LAW, HAS SERVED OR
FILED AGAINST HIS, HER OR ITS ASSETS ANY LIEN OR HAS ENTERED AGAINST HIM, HER OR
IF OR HIS, HER OR ITS ASSETS ANY JUDGMENT, ORDER OR AWARD; (V) A RECEIVER OR
SIMILAR TRUSTEE IS APPOINTED FOR ANY MORTGAGOR, DEBTOR OR GUARANTOR OR HIS, HER
OR ITS ASSETS (WITH OR WITHOUT HIS, HER OR ITS CONSENT), OR ANY MORTGAGOR,
DEBTOR OR GUARANTOR MAKES AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR
COMMENCES OR HAS COMMENCED AGAINST HIM, HER OR IF A PROCEEDING PURSUANT TO ANY
BANKRUPTCY, INSOLVENCY, REORGANIZATION, ARRANGEMENT, READJUSTMENT OF DEBT,
DISSOLUTION OR LIQUIDATION LAWS CALLING A MEETING OF CREDITORS OR OFFERING A
COMPOSITION OR EXTENSION TO CREDITORS; (VI) ANY REPRESENTATION OR WARRANTY MADE
IN THIS MORTGAGE OR RELATED DOCUMENTS OR OTHER STATEMENTS PROVIDED BY ANY
MORTGAGOR, DEBTOR, GUARANTOR OR (IF KNOWN BY MORTGAGOR OR GUARANTOR) MATERIAL
LESSEE PROVES TO HAVE BEEN INCORRECT OR MISLEADING IN ANY MATERIAL RESPECT;
(VII) ANY PENSION PLAN OF ANY MORTGAGOR, DEBTOR OR GUARANTOR FAILS TO COMPLY
WITH APPLICABLE LAW OR HAS VESTED UNFUNDED LIABILITIES THAT, IN THE OPINION OF
THE MORTGAGEE, MIGHT HAVE A MATERIAL ADVERSE EFFECT ON ANY MORTGAGOR'S, DEBTOR'S
OR GUARANTOR'S ABILITY TO REPAY HIS, HER OR ITS DEBTS; (VIII) THERE OCCURS ANY
CHANGE IN THE MANAGEMENT OF ANY MORTGAGOR, DEBTOR OR GUARANTOR WHICH IS, IN THE
OPINION OF THE MORTGAGEE, MATERIALLY ADVERSE TO ITS INTEREST AND WHICH REMAINS
UNCORRECTED FOR THIRTY (30) DAYS AFTER THE MORTGAGEE NOTIFIES ANY MORTGAGOR OF
ITS OPINION; (IX) ANY MORTGAGOR OR DEBTOR FAILS TO PAY WHEN DUE WHETHER BY
ACCELERATION OR OTHERWISE ANY AMOUNT DUE TO ANY PERSON OTHER THAN THE MORTGAGEE;
(X) ANY MORTGAGOR OR DEBTOR IS CONVICTED OF A FELONY; OR (XI) ANY SECURITY
DOCUMENT OR GUARANTEE CEASES TO BE IN FULL FORCE AND EFFECT OR CEASES TO GIVE
THE RIGHTS, POWERS AND PRIVILEGES PURPORTED TO BE CREATED THEREBY. AUTOMATICALLY
UPON THE OCCURRENCE OR EXISTENCE OF ANY EVENT OF DEFAULT, THE ANNUAL INTEREST
RATE APPLICABLE TO THE INDEBTEDNESS SHALL BE INCREASED BY THE DEFAULT RATE
SPECIFIED IN THE NOTE OR OTHER INSTRUMENT EVIDENCING THE INDEBTEDNESS.
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(b) Mortgagee, at its sole election, may declare all or any
part of any Indebtedness not payable on demand to be immediately due and payable
without demand or notice of any kind upon the happening of any Event of Default
(AND AFTER ANY APPLICABLE NOTICE AND TIME TO CURE). All or any part of any
Indebtedness not payable on demand shall be automatically and immediately due
and payable, without demand or notice of any kind, upon the commencement of
Xxxxxxxxx's or Debtor's bankruptcy if voluntary and upon the lapse of SIXTY (60)
days without dismissal if involuntary, unless an order for relief is entered
sooner. The provisions of this paragraph are not intended in any way to affect
any rights of Mortgagee with respect to any Indebtedness which may now or
hereafter be payable on demand.
(c) Upon the happening of an Event of Default, whether or not
foreclosure proceedings have been instituted, Mortgagor shall, upon demand,
surrender possession of the Premises to Mortgagee. If Mortgagor remains in
possession of the Premises after the happening of an Event of Default and demand
by Mortgagee, the possession shall be as tenant of Mortgagee and Xxxxxxxxx
agrees to pay in advance upon demand to Mortgagee a reasonable monthly rental
for the Premises or portion so occupied. Mortgagee may dispossess, by summary
proceedings or otherwise, any tenant of Mortgagor defaulting in the payment of
rent. If a receiver is appointed, this covenant shall inure to the benefit of
such receiver. Notwithstanding any provision of law to the contrary, Mortgagee
may, at its option, foreclose this Mortgage subject to the rights of tenants of
the Premises which are subordinate to the lien of this Mortgage.
(d) If the Indebtedness, as evidenced by a single note or
other written instrument shall exceed the amount secured by this Mortgage, or as
evidenced by a combination of same that singularly or in part collectively may
be less than said secured amount but combined exceed said secured amount,
Mortgagee, in any foreclosure hereof, shall have the right to sue and collect
the excess in the same action as commenced for the foreclosure hereof, and
recover a money judgment for said excess with all the rights attendant thereto,
including the issuance of an execution to the Sheriff for collection thereof,
and Xxxxxxxxx hereby waives any defense based upon a claim that in doing so,
Mortgages is splitting its cause of action if it seeks to foreclose this
Mortgage for part of the indebtedness and recover at law for another part.
(e) Upon the happening of an Event of Default, Mortgagee may
pursue, take or refrain from pursuing any remedy for collection of the
Indebtedness, including foreclosure of this Mortgage.
(f) may, either with or without entry or taking possession of
the Premises as provided in this Mortgage or otherwise, personally or by its
agents or attorneys, and without prejudice to the right to bring an action of
foreclosure of this Mortgage: (A) sell the Premises or any part thereof pursuant
to any procedures provided by applicable law including the procedures set forth
in Article 14 of the New York Real Property Actions and Proceedings Law (and any
amendments or substitute statutes in regard thereto) allowing non judicial
foreclosure of Mortgage by sale, and all estate, right, title, interest, claim
and demand therein, and right of redemption thereof, at one or more sales as an
entity or in parcels, and at such time and place upon such terms and after such
notice thereof as may be required or permitted by applicable law or (B) take
such steps to protect and enforce its rights whether by action, suit or
proceeding in equity or at law for the specific performance of any covenant,
condition or agreement in the Note or in this Mortgage, or in aid of the
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execution of any power granted in this Mortgage, or for any foreclosure under
this Mortgage, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as Mortgagee may elect. Any reference in this
Mortgage to an action or right of Mortgagee in regard to or in connection with a
"foreclosure proceeding" shall be deemed to include a sale and/or proceeding
under this subsection, including a non-judicial foreclosure of mortgage by sale.
28. EXPENSES. Mortgagor shall pay to Mortgagee on demand all costs and
expenses (including attorneys' fees and disbursements whether for internal or
outside counsel) incurred by Mortgagee in connection with the Indebtedness or
the Mortgage including costs of collection, of preserving or exercising any
right or remedy of Mortgagee under this Mortgage or any related security
agreement or guaranty, of workout or bankruptcy proceedings by or against
Mortgagor, of defending against any claim asserted as a direct or indirect
result of the Indebtedness or of performing any obligation of any Mortgagor
pursuant to this Mortgage or otherwise (including payment of any amount any
Mortgagor is obligated to pay pursuant to this Mortgage and performance of any
obligation of Mortgagor pursuant to this Mortgage). Mortgagee reserves the right
to have Mortgagor pay, upon demand, administrative fee(s) in regard to any
administrative action Mortgagee is required or requested to take including the
preparation of discharges, releases or assignments to third parties. Costs and
expenses shall accrue interest at the default rate set forth in the Note from
the date of demand until payment is actually received by Mortgagee. Each such
cost and expense and any interest thereon shall constitute part of the
Indebtedness and be secured by this Mortgage and may be added to the judgment in
any suit brought by Mortgagee or its agents against any Mortgagor on this
Mortgage.
29. NOTICES. Any demand or notice hereunder or under any applicable law
pertaining hereto (including Article 14 of New York Real Property Actions and
Proceedings Law) shall be in writing and duly given if delivered to Mortgagor
(at its address on Mortgagee's records) or to Mortgagee (at the address on page
one and separately to Mortgagee officer responsible for Xxxxxxxxx's relationship
with Mortgagee). Such notice or demand shall be deemed sufficiently given for
all purposes when delivered (i) by personal service and shall be deemed
effective when delivered, or (ii) by mail or courier and shall be deemed
effective three (3) business days after deposit in an official depository
maintained by the United States Post Office for the collection of mail or one
(1) business day after delivery to a nationally recognized overnight courier
service (e.g., Federal Express). Notice by e-mail is not valid notice under this
or any other agreement between Mortgagor and Mortgagee.
30. LITIGATION. Mortgagor shall promptly notify Mortgagee in writing of
any litigation, proceeding, or counterclaim against, or of any investigation of,
Mortgagor (or the threat thereof) if: (i) the outcome of such litigation,
proceeding, counterclaim, or investigation may materially and adversely affect
the finances or operations of Mortgagor or title to, or the value of, any assets
secured by the Mortgage or (ii) such litigation, proceeding, counterclaim, or
investigation questions the validity of the Mortgage, the Note or any document
executed in connection therewith including any guaranties or any action taken,
or to be taken, pursuant to any such documents. Mortgagor shall furnish to
Mortgagee such information regarding any such litigation, proceeding,
counterclaim, or investigation as Mortgagee shall request.
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31. NOTICE OF NON-COMPLIANCE. Mortgagor shall notify Mortgagee in
writing of any failure by Xxxxxxxxx to comply with any provision of the Note,
the Mortgage or any document executed in connection therewith immediately upon
learning of such non-compliance, or if any representation, warranty or covenant
contained in any such document is no longer true. Mortgagor shall also
immediately notify Mortgagee in writing if there is any material adverse change
in any of the information or financial statements supplied to Mortgagee to
induce Mortgagee to extend credit to Mortgagor or if such information or
financial statement is required under this Mortgage or any other document
executed in connection therewith.
32. COVENANTS SHALL RUN WITH THE LAND. The covenants contained in this
Mortgage shall run with the land and bind Xxxxxxxxx, each heir, legal
representative, successor and assign of Mortgagor and each subsequent owner,
encumbrancer, tenant and subtenant of the Premises or any portion thereof, and
shall inure to the benefit of, and be enforceable by, Mortgagee and each
successor and assign of Mortgagee.
33. NONWAIVER BY MORTGAGEE. All rights and remedies of Mortgagee under
this Mortgage and its other agreements with Mortgagor are cumulative, and no
right or remedy shall be exclusive of any other right or remedy. No single,
partial or delayed exercise by Mortgagee or its agents of any right or remedy
shall preclude full and timely exercise by Mortgagee or its agents at any time
of any right or remedy of Mortgagee without notice or demand, at Mortgagee's
sole option. No course of dealing or other conduct, no oral agreement or
representation made by Mortgagee or its agents or usage of trade shall operate
as a waiver of any right or remedy of Mortgagee. No waiver of any right or
remedy of Mortgagee hereunder shall be effective unless made specifically in
writing by Mortgagee. No notice or demand on Mortgagor, Debtor or Guarantor in
any case shall entitle Mortgagor, Debtor or Guarantor to any other or further
notice in similar or other circumstances.
34. RIGHT OF SETOFF. If an Event of Default occurs, Mortgagee and
Affiliates shall also have the right to setoff against the indebtedness any
property held in a deposit or other account or otherwise owing by Mortgagee or
Affiliates including, in any capacity to any Mortgagor, Debtor or Guarantor in
any capacity whether or not the Indebtedness or the obligation to pay such
moneys owed by Mortgagee is then due, and Mortgagee shall be deemed to have
exercised such right of setoff immediately at the time of such election.
35. TERM; SURVIVAL. The term of this Mortgage and Xxxxxxxxx's
obligations hereunder shall continue until the Indebtedness has been fully paid
to Mortgagee's satisfaction. Xxxxxxxxx's obligation to pay the costs and
expenses hereunder shall survive the term of this Mortgage, Mortgagor's
representations, warranties, covenants and agreements shall survive during the
term of this Mortgage and shall be presumed to have been relied upon by
Mortgagee. If after receipt of any payment of all or any part of the
Indebtedness, Mortgagee is for any reason compelled to surrender such payment to
any person or entity because such payment is determined to be void or voidable
as a preference, impermissible set-off, or a diversion of trust funds, or for
any other reason, this Mortgage shall continue in full force notwithstanding any
contrary action which may have been taken by Mortgagee in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to
Mortgagee's rights under this Mortgage and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
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36. MISCELLANEOUS. This Mortgage is absolute and unconditional. This
Mortgage and all documents, including the Note, any Guaranty and any other
document required to be executed by Xxxxxxxxx, Debtor or Guaranty in connection
with the transaction contemplated hereby constitute the entire agreement and
understanding between the parties hereto with respect to such transaction and
supersedes all prior negotiations, courses of dealing, understandings, and
agreements between such parties with respect to such transactions. This Mortgage
is a binding obligation enforceable against Mortgagor and its heirs and legal
representatives and its successors and assigns and shall inure to the benefit of
Mortgagee and its successors and assigns. Any reference herein to "Mortgagee"
shall be deemed to include and apply to every subsequent holder of this Mortgage
and any reference herein to "Mortgagor", "Debtor" or "Guarantor" shall include;
(i) any successor individual or individuals, association, partnership, limited
liability company or corporation to which all or substantially all of the
business or assets of Debtor, Mortgagor or Guarantor, as the case may be, shall
have been transferred; (ii) in the case of a partnership Debtor, Mortgagor or
Guarantor (as the case may be) any new partnership which shall have been created
by reason of the admission of any new partner or partners therein, or by reason
of the dissolution of the existing partnership by voluntary agreement or the
death, resignation or other withdrawal of any partner; and (iii) in the case of
a corporate or limited liability company, Debtor, Mortgagor or Guarantor (as the
case may be) any other entity into or with which Debtor, Mortgagor or Guarantor
(as the case may be) shall have been merged, consolidated, reorganized, or
absorbed. It is the intent of Mortgagor and Mortgagee that the provisions of
this Mortgage, other than those included in the New York statutory form of
mortgage, shall be construed as affording to Mortgagee rights additional to, and
not exclusive of, the rights conferred under the provisions contained in such
statutory form. Unless the context otherwise clearly requires, references to
plural includes the singular and references to the singular include the plural;
the word "or" has the inclusive meaning represented by the phrase "and/or"; the
word "including", "includes" and "include" shall be deemed to be followed by the
words "without limitation"; and captions or section headings are solely for
convenience and not part of the substance of this Mortgage. Any representation,
warranty, covenant or agreement herein shall survive execution and delivery of
this Mortgage and shall be deemed continuous, Each provision of this Mortgage
shall be interpreted as consistent with existing law and shall be deemed amended
to the extent necessary to comply with any conflicting law. If any provision
nevertheless is held invalid, the other provisions shall remain in effect.
Xxxxxxxxx agrees that in any legal proceeding, a photocopy of this Mortgage kept
in Mortgagee's course of business may be admitted into evidence as an original.
37. JOINT AND SEVERAL. If there is more than one Mortgagor, each of
them shall be jointly and severally liable for all amounts and obligations which
become due or should be performed under this Mortgage and the term "Mortgagor"
shall include each as well as all of them,
38. GOVERNING LAW; JURISDICTION. This Mortgage has been delivered to
and accepted by Mortgagee and will be deemed to be made in the State of New
York. This Mortgage will be interpreted in accordance with the laws of the State
of New York excluding its conflict of laws rules, MORTGAGOR HEREBY IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK
STATE IN A COUNTY OR JUDICIAL DISTRICT WHERE MORTGAGEE MAINTAINS A BRANCH AND
CONSENTS THAT MORTGAGEE MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT
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XXXXXXXXX'S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED
THAT NOTHING CONTAINED IN THIS MORTGAGE WILL PREVENT MORTGAGEE FROM BRINGING ANY
ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST
MORTGAGOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF
MORTGAGOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION. Xxxxxxxxx acknowledges and agrees that the venue provided above is
the most convenient forum for both Mortgagee and Mortgagor. Mortgagor waives any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Mortgage.
39. WAIVER OF JURY TRIAL. XXXXXXXXX AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY EACH WAIVE ANY RIGHT TO TRIAL BY JURY THEY MAY
HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS
MORTGAGE OR THE TRANSACTIONS RELATED THERETO. XXXXXXXXX REPRESENTS AND WARRANTS
THAT NO REPRESENTATIVE OR AGENT OF MORTGAGEE HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT MORTGAGEE WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THIS RIGHT TO JURY TRIAL WAIVER. XXXXXXXXX ACKNOWLEDGES THAT MORTGAGEE HAS BEEN
INDUCED TO ACCEPT THIS MORTGAGE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
SECTION.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Mortgage has been duty executed by Xxxxxxxxx
the day and year first above written.
SIGNED, SEALED AND DELIVERED IN THE MAJESTIC EMPIRE HOLDING, LLC
PRESENCE OF THESE WITNESSES:
WITNESS #1: BY: /s/Xxxxxxxx Xxxxxxxxx
---------------------------- ------------------------
PRINT NAME: NAME: XXXXXXXX XXXXXXXXX
TITLE: MANAGING MEMBER
WITNESS #2:
----------------------------
PRINT NAME:
----------------------------
ACKNOWLEDGMENT
STATE OF NEW JERSEY )
: SS.
COUNTY OF ESSEX )
On the 19th day of April, in the year 2005, before me, the undersigned,
a Notary Public in and for said State, personally appeared XXXXXXXX XXXXXXXXX,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose names) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individuals) acted,
executed the instrument.
/s/ Xxxx X. Xxxxx
----------------------------------
Notary Public
XXXX X. XXXXX
Notary Public, State of New Jersey
My Commission Expires May 16, 2007
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SCHEDULE A-19
LAND DESCRIPTION
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE
BOROUGH AND COUNTY OF QUEENS, CITY AND STATE OF NEW YORK, BOUNDED AND DESCRIBED
AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE NORTHERLY SIDE OF
KISSENA BOULEVARD WITH THE NORTHWESTERLY SIDE OF 75TH AVENUE;
RUNNING THENCE WESTERLY ALONG THE NORTHERLY SIDE OF KISSENA BOULEVARD, 358.57
FEET TO THE CORNER FORMED BY THE INTERSECTION OF THE NORTHERLY SIDE OF KISSENA
BOULEVARD WITH THE SOUTHEASTERLY SIDE OF 73RD AVENUE, AS SAME IS SHOWN ON
ALTERATION MAP NO. 4361 OF THE FINAL TOPOGRAPHICAL MAP OF THE CITY OF NEW YORK
ADOPTED BY THE BOARD OF ESTIMATE ON OCTOBER 14, 1965;
THENCE IN A GENERAL EASTERLY DIRECTION AS MEASURED ALONG THE AFORESAID
SOUTHEASTERLY SIDE OF 73RD AVENUE THE FOLLOWING TWO COURSES AND DISTANCES;
1) ALONG THE ARC OF A CURVE BEARING TO THE RIGHT HAVING A RADIUS OF 400
FEET A DISTANCE OF 101.26 FEET;
2) ALONG THE ARC OF A CURVE BEARING TO THE LEFT HAVING A RADIUS OF 987.175
FEET, A DISTANCE OF 209.20 FEET TO THE CORNER FORMED BY THE
INTERSECTION OF THE SOUTHEASTERLY SIDE OF 73RD AVENUE WITH THE
SOUTHWESTERLY SIDE OF XXXXXXX BOULEVARD;
THENCE SOUTHERLY ALONG THE SOUTHWESTERLY SIDE OF XXXXXXX BOULEVARD ALONG THE ARC
OF A CURVE BEARING TO THE RIGHT HAVING A RADIUS OF 342.982 FEET, A DISTANCE OF
176.95 FEET;
THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY SIDE OF 75TH AVENUE, 54.16 FEET TO
THE FIRST MENTIONED COURSE, THE POINT OR PLACE OF BEGINNING.
-19-
SCHEDULE A-20
LAND DESCRIPTION
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE
BOROUGH AND COUNTY OF QUEENS, CITY AND STATE OF NEW YORK, BOUNDED AND DESCRIBED
AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE SOUTHEASTERLY SIDE OF
HILLSIDE AVENUE (173 FEET WIDE) WITH THE SOUTHWESTERLY SIDE OF XXXXXXXX AVENUE
(100 FEET WIDE);
RUNNING THENCE SOUTHEASTERLY ALONG THE SOUTHWESTERLY SIDE OF XXXXXXXX AVENUE AND
FORMING AN INTERIOR ANGLE OF 124 DEGREES 30 MINUTES 08 SECONDS WITH THE
SOUTHEASTERLY SIDE OF HILLSIDE AVENUE, A DISTANCE OF 187.32 FEET;
THENCE RUNNING WESTERLY ALONG THE SOUTHERLY LINE OF THE HEREIN DESCRIBED PARCEL
AND FORMING AN INFERIOR ANGLE OF 55 DEGREES 29 MINUTES 52 SECONDS WITH THE LAST
MENTIONED COURSE A DISTANCE OF 216.10 FEET;
RUNNING THENCE NORTHERLY ALONG THE WESTERLY LINE OF THE HEREIN DESCRIBED PARCEL
AND FORMING AN INFERIOR ANGLE OF 90 DEGREES WITH THE LAST MENTIONED COURSE, A
DISTANCE OF 154.37 FEET TO THE SOUTHEASTERLY SIDE OF HILLSIDE AVENUE;
THENCE RUNNING EASTERLY ALONG THE SOUTHEASTERLY LINE OF HILLSIDE AVENUE AND
FORMING AN INTERIOR ANGLE OF 90 DEGREES WITH THE LAST MENTIONED COURSE, A
DISTANCE OF 110 FEET TO THE POINT OR PLACE OF BEGINNING.
-20-
SCHEDULE A-29
LAND DESCRIPTION
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE
BOROUGH AND COUNTY OF QUEENS, CITY AND STATE OF NEW YORK, BOUNDED AND DESCRIBED
AS FOLLOWS;
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE NORTHEASTERLY SIDE OF
JAMAICA AVENUE (FORMERLY KNOWN AS 89TH AVENUE, XXXXXXX AVENUE AND XXXXXX STREET)
WITH THE WESTERLY SIDE OF 139TH STREET (FORMERLY KNOWN AS MAPLE AVENUE);
RUNNING THENCE NORTHERLY ALONG SAID XXXXXXXX SIDE OF 139TH STREET, 134.58 FEET
TO A POINT;
RUNNING THENCE WESTERLY ALONG A LINE FORMING AN INFERIOR ANGLE OF 93 DEGREES 16
MINUTES 15 SECONDS WITH THE WESTERLY SIDE OF 139TH STREET 66.78 FEET TO A POINT;
RUNNING THENCE WESTERLY ALONG A FINE FORMING AN INTERIOR ANGLE OF 185 DEGREES 06
MINUTES 34 SECONDS WITH THE LAST MENTIONED COURSE, 33.69 FEET TO A POINT;
RUNNING THENCE NORTHERLY PARALLEL WITH THE EASTERLY SIDE OF QUEENS BOULEVARD
(FORMERLY KNOWN AS XXXXXXX BOULEVARD), 52.12 FEET TO A POINT;
RUNNING THENCE WESTERLY AT RIGHT ANGLES TO THE EASTERLY SIDE OF QUEENS
BOULEVARD, 100 FEET TO THE EASTERLY SIDE OF QUEENS BOULEVARD;
RUNNING THENCE SOUTHERLY ALONG THE EASTERLY SIDE OF QUEENS BOULEVARD, 100.33
FEET TO THE CORNER FORMED BY THE INTERSECTION OF THE EASTERLY SIDE OF QUEENS
BOULEVARD WITH THE PRESENT NORTHEASTERLY LINE OF JAMAICA AVENUE;
RUNNING THENCE SOUTHEASTERLY ALONG THE PRESENT NORTHEASTERLY LINE OF JAMAICA
AVENUE AND ALONG A LINE FORMING AN INTERIOR ANGLE OF 115 DEGREES 31 MINUTES 33.1
SECONDS WITH THE EASTERLY SIDE OF QUEENS BOULEVARD, 20.15 FEET TO A POINT;
-21-
SCHEDULE A-22
LAND DESCRIPTION
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE
BOROUGH OF BROOKLYN, COUNTY OF KINGS, CITY AND STATE OF NEW YORK, BOUNDED AND
DESCRIBED AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE EASTERLY SIDE OF
FLATBUSH AVENUE AND THE SOUTHERLY SIDE OF EMPIRE BOULEVARD, FORMERLY KNOWN AS
XXXXXXX STREET;
RUNNING THENCE EASTERLY ALONG THE SOUTHERLY SIDE OF EMPIRE BOULEVARD, A DISTANCE
OF 254 FEET 10 INCHES TO A POINT;
THENCE RUNNING WEST ALONG AN ANGLE OF 24 DEGREES 03 MINUTES SOUTH A DISTANCE OF
36 FEET 7 INCHES TO A POINT;
RUNNING THENCE SOUTHERLY AT A COURSE WHICH IS AT RIGHT ANGLES TO THE LAST
MENTIONED COURSE, A DISTANCE OF 49 FEET 11-7/8 INCHES TO A POINT;
THENCE BY RIGHT ANGLES TO THE LAST MENTIONED COURSE WESTERLY A DISTANCE OF 198
FEET 10-1/2 INCHES TO THE EASTERLY SIDE OF FLATBUSH AVENUE;
THENCE NORTHERLY ALONG THE EASTERLY SIDE OF FLATBUSH AVENUE A DISTANCE OF 153
FEET 10-3/4 INCHES TO THE INTERSECTION OF FLATBUSH AVENUE AND EMPIRE BOULEVARD,
THE POINT OR PLACE OF BEGINNING.
-22-
CREDIT LINE MORTGAGE
================================================================================
MAJESTIC EMPIRE HOLDINGS, L.L.C.
- to -
MANUFACTURERS AND TRADERS TRUST COMPANY
================================================================================
The within premises lie in
19 QUEENS COUNTY: SECTION 31, BLOCK 6805, LOT 100
20 QUEENS COUNTY: SECTION 47, BLOCK 10680, LOT 6
21 QUEENS COUNTY: SECTION 42, BLOCK 9620, LOTS 33 AND 40
22 KINGS COUNTY: SECTION 15, BLOCK 4591, LOT 48
RECORDED BY AND RETURN TO:
XXXXXX & XXXXXXX, LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
-23-
EXHIBIT 6
M&T BANK
MANUFACTURERS AND TRADERS TRUST COMPANY
CONTINUING GUARANTY
(PERSONAL)
NEW YORK
GUARANTOR: XXXXXXXX XXXXXXXXX
--------------------------------------------------------------
Name
******
--------------------------------------------------------------
Home Address
BORROWER: MAJESTIC EMPIRE HOLDINGS, L.L.C.
--------------------------------------------------------------
Name
C/O THE BRIAD GROUP, 00 XXXXX XXXXXXX, XXXXXXXXXX, XX 00000
--------------------------------------------------------------
Address
LENDER: MANUFACTURERS AND TRADERS TRUST COMPANY, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; Attention: Xxxxx Xxxxxx.
IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE TERMS OF THIS GUARANTY AND THE
TERMS OF THE COMMITMENT LETTER DATED APRIL 20, 2005, FROM LENDER TO BORROWER
RELATING TO THIS LOAN (SUCH LETTER AS IT MAY BE AMENDED FROM TIME TO TIME IS
HEREIN CALLED THE "COMMITMENT LETTER"), UNLESS OTHERWISE REQUIRED TO ASSURE THE
ENFORCEABILITY OF XXXXXX'S RIGHTS HEREUNDER, THE TERMS OF THE COMMITMENT LETTER
SHALL CONTROL.
1. GUARANTY. (a) Guarantor guarantees to the Lender the full and
immediate payment and performance of all of Borrower's obligations to the Lender
from time to time of every kind and nature, now existing and hereafter incurred,
direct and contingent, liquidated and unliquidated, secured and unsecured,
matured and unmatured, including all accrued and unpaid interest and all
Expenses (defined below) even if such obligations were originally contracted
with another lender or jointly with other borrowers, even if not evidenced by a
writing, and even if periodically extinguished and reincurred (the
"Obligations"). Guarantor will pay or perform its obligations under the Guaranty
upon demand. This is a guaranty of payment, not collection.
(b) Guarantor acknowledges the receipt of valuable
consideration for this Guaranty and acknowledges that the Lender is relying on
this Guaranty in making a financial accommodation to Borrower, whether a
commitment to lend, extension, modification or replacement of, or forbearance
with respect to, any Obligation, cancellation of another guaranty, purchase of
Borrower's assets, or other valuable consideration.
2. CONTINUING, UNCONDITIONAL AND UNLIMITED GUARANTY. This Guaranty is
irrevocable, continuing, unconditional and general without any limitation EXCEPT
AS SET FORTH IN THE COMMITMENT LETTER.
3. GUARANTOR'S WAIVERS. (a) Guarantor's obligations shall not be
released, impaired or affected in any way by (i) Borrower's bankruptcy,
reorganization or insolvency under any law or that of any other party, or by any
action of a trustee in any such proceeding; (ii) failure of any other party to
perform its obligations to the Lender; or (iii) any other circumstance that
might constitute a legal or equitable defense to Guarantor's or Borrower's
obligations under this Guaranty, including without limitation: (A) any new
agreements or obligations of Borrower with or to the Lender, amendments, changes
in rate of interest, extensions of time for payments, modifications, renewals or
the existence of or waivers of default as to any existing or future agreements
of Borrower or any other party with the Lender; (B) any adjustment, compromise
or release of any Obligations of Borrower, by the Lender or any other party; the
existence or nonexistence or order of any filings, exchanges, releases,
impairment or sale of, or failure to perfect a security interest in, any
security for the Obligations, or the order in which payments and proceeds of
collateral are applied; or acceptance by the Lender of any writing intended by
any other party to create an accord and satisfaction with respect to any of the
Obligations; (C) any fictitiousness, incorrectness, invalidity or
unenforceability, for any reason, of any instrument or other agreement, or act
of commission or omission by the Lender or Borrower; (D) any composition,
extension, moratoria or other statutory relief granted to Borrower; or (E) any
interruption in the business relations between the Lender and Borrower, or any
dissolution or change in form of organization, name or ownership of Borrower or
Guarantor.
(b) WAIVERS OF NOTICE, ETC. The Guarantor waives acceptance,
assent and all rights of notice or demand including without limitation (i)
notice of acceptance of this Guaranty, of Borrower's default or nonpayment of
any Obligation, and any changes in Borrower's financial condition; (ii)
presentment, protest, notice of protest and demand for payment; and (iii) any
other notice, demand or condition to which Guarantor might otherwise be entitled
prior to the Lender's reliance on or enforcement of this Guaranty.
(c) WAIVER OF SUBROGATION. Notwithstanding any other provision
in this Guaranty, Guarantor irrevocably waives, without notice, any right it may
have at law or in equity (including without limitation any law subrogating
Guarantor to the rights of the Lender) to seek contribution, indemnification or
any other form of reimbursement from Borrower or any other obligor or guarantor
of the Obligations for any disbursement made under this Guaranty or otherwise.
4. TERMINATION; REINSTATEMENT. This Guaranty can be terminated (a) only
with respect to Obligations not yet incurred, and (b) only by actual receipt by
the Lender officer named above (or, if none is specified, Xxxxxx's General
Counsel) of written notice of Guarantor's intent to terminate (or Guarantor's
dissolution) plus (c) the lapse of a reasonable time for Lender to act on such
notice. This Guaranty cannot be terminated with respect to any Obligations
committed or contracted for or outstanding at the time the Lender acts on such
notice, or any prior or subsequent modifications, renewals, extensions or
replacements of or interest on such Obligations, or related Expenses. If any
payment the Lender has received prior to termination subsequently is declared
-2-
fraudulent or preferential or for any other reason required to be surrendered,
Guarantor's obligations under this Guaranty and any related security agreements
shall be reinstated and remain in effect until the Lender has actually received
payment in full of the Obligations.
5. EXPENSES. Guarantor agrees to reimburse the Lender on demand for all
the Lender's REASONABLE OUT-OF-POCKET expenses, costs, damages and losses of any
kind or nature, including without limitation actual attorneys' fees and
disbursements whether for internal or external counsel incurred by the Lender in
attempting to enforce this Guaranty, collect or restructure any of the
Obligations, realize on any collateral, or for any other purpose related to the
Obligations including but not limited to costs of workout, negotiations,
redocumentation or bankruptcy or other legal proceedings or appeal
(collectively, "Expenses"). Expenses will accrue interest at the highest legal
rate until payment is actually received by the Lender.
6. FINANCIAL AND OTHER INFORMATION. Guarantor shall promptly deliver to
the Lender annual personal financial statements and any other financial
information requested by the Lender AS SET FORTH IN SUBDIVISION (C) OF
"FINANCIAL REPORTING" OF THE COMMITMENT LETTER in form satisfactory to the
Lender. Guarantor represents that his or her assets are not subject to any
liens, encumbrances or contingent liabilities except as fully disclosed to the
Lender in such statements. Guarantor warrants that all information Guarantor
gives to the Lender at any time is correct, complete and not misleading.
Xxxxxxxxx resides at the above address and will notify the Lender immediately in
writing upon any change in address. Xxxxxxxxx understands this Guaranty and has
satisfied himself or herself as to its meaning and consequences.
XXXXXXXXX AGREES THAT GUARANTOR WILL BE DEEMED TO HAVE
REAFFIRMED AS OF THE DATE OF EACH ADVANCE BY LENDER TO BORROWER THIS GUARANTY AS
COVERING EACH ADDITIONAL ADVANCE AND THE REPRESENTATIONS AND WARRANTIES
PERTAINING TO GUARANTOR IN THE COMMITMENT LETTER; WILL MAINTAIN ANY EQUITY,
LIQUIDITY AND NET WORTH REQUIREMENTS SET FORTH THEREIN AND DELIVER THE FINANCIAL
STATEMENTS AND TAX RETURNS REQUIRED FROM GUARANTOR THEREIN.
7. SECURITY; RIGHT OF SETOFF. As further security for payment of the
Obligations, Expenses and any other obligations of Guarantor to the Lender,
Guarantor hereby grants to the Lender a security interest in all money,
securities and other property of Guarantor in the actual or constructive
possession or control of the Lender including without limitation all deposits
and other accounts owing at any time by the Lender in any capacity to Guarantor
in any capacity (collectively, the "Property"). The Lender shall have the right
AFTER AN EVENT OF DEFAULT BY BORROWER OR GUARANTOR to set off Guarantor's
Property against any of Guarantor's obligations to the Lender and shall have all
of the rights and remedies of a secured party under the Uniform Commercial Code
in addition to those under this Guaranty and other agreements and applicable
law.
8. NO TRANSFER OF ASSETS. Guarantor shall not transfer, reinvest or
otherwise dispose of his assets to MATERIALLY impair Guarantor's ability to
perform its obligations under this Guaranty.
9. NONWAIVER BY THE LENDER; MISCELLANEOUS. This DOCUMENT (INCLUDING THE
COMMITMENT LETTER REFERRED TO HEREIN) is the entire agreement between Guarantor
and the Lender with respect to the Guaranty. This Guaranty may be assigned by
the Lender, shall inure to the benefit of the Lender and its successors and
-3-
assigns, and shall be binding upon Guarantor and its successors and assigns. All
rights and remedies of the Lender are cumulative and no such right or remedy
shall be exclusive of any other right or remedy. This Guaranty does not
supersede any other guaranty or security granted to the Lender by Guarantor or
others (except as to Guarantor's Waiver of Subrogation rights above). No single,
partial or delayed exercise by the Lender of any right or remedy shall preclude
exercise by the Lender at any time at its sole option of the same or any other
right or remedy of the Lender without notice. No course of dealing or other
conduct, no oral agreement or representation made by the Lender or usage of
trade shall operate as a waiver of any right or remedy of the Lender. No waiver
or amendment of any right or remedy of the Lender or release by the Lender shall
be effective unless made specifically in writing by the Lender. This Guaranty
shall be governed by the laws of the State of New York, without regard to its
principles of conflict of laws. Each provision of this Guaranty shall be
interpreted as consistent with existing law and shall be deemed amended to the
extent necessary to comply with any conflicting law. If any provision is
nevertheless held invalid the other provisions shall remain in effect. Captions
are solely for convenience and are not part of the substance of this Guaranty.
10. JOINT AND SEVERAL; PRIMARY OBLIGATION. If there is more than one
Guarantor, each Guarantor jointly and severally guarantees the payment and
performance in full of all obligations under this Guaranty and agrees that the
Lender need not seek payment from any source other than the undersigned
Guarantor. This Guaranty is a primary obligation, Guarantor's obligations
hereunder are separate and independent of Xxxxxxxx's and a separate action may
be brought against Guarantor whether or not action is brought or joined against
or with Borrower or any other party.
11. GUARANTOR'S CONSENTS TO JURISDICTION. IN ANY ACTION OR OTHER LEGAL
PROCEEDING RELATING TO THIS GUARANTY, GUARANTOR (A) CONSENTS TO THE PERSONAL
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW YORK OR
NEVADA, (B) WAIVES OBJECTION TO THE LAYING OF VENUE, (E) WAIVES PERSONAL SERVICE
OF PROCESS AND SUBPOENAS, (D) CONSENTS TO SERVICE OF PROCESS AND SUBPOENAS BY
REGISTERED OR CERTIFIED MAIL DIRECTED TO GUARANTOR AT THE LAST ADDRESS SHOWN IN
THE LENDER'S RECORDS RELATING TO THIS GUARANTY, WITH SUCH SERVICE TO BE DEEMED
COMPLETED FIVE BUSINESS DAYS AFTER MAILING, (E) WAIVES ANY RIGHT TO ASSERT ANY
COUNTERCLAIMS OR SETOFF OR ANY DEFENSE BASED UPON A STATUTE OF LIMITATIONS OR
UPON A CLAIM OF LACHES, (F) WAIVES ANY RIGHT TO ATTACK A FINAL JUDGMENT THAT IS
OBTAINED AS A DIRECT OR INDIRECT RESULT OF ANY SUCH ACTION AND (G) CONSENTS TO
EACH SUCH FINAL JUDGMENT BEING SUED UPON IN ANY COURT HAVING JURISDICTION. A
SEPARATE ACTION MAY BE BROUGHT AGAINST GUARANTOR WHETHER OR NOT ACTION IS
BROUGHT AGAINST OR JOINED WITH BORROWER OR ANY OTHER PARTY.
12. WAIVER OF JURY TRIAL. Guarantor and the Lender each waive any right
to trial by jury in any action with respect to this Guaranty.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
-4-
NOTICE: FOR PURPOSES OF THIS GUARANTY "OBLIGATIONS" IS NOT LIMITED TO
PRESENTLY EXISTING INDEBTEDNESS, LIABILITIES AND OBLIGATIONS.
Dated: AS OF APRIL 20, 2005
GUARANTOR:
SS # ------------------ /s/ Xxxxxxxx Xxxxxxxxx
____________________________ ---------------------------
XXXXXXXX XXXXXXXXX
ACKNOWLEDGMENT
STATE OF NEW JERSEY)
: SS:
COUNTY OF ESSEX )
On the 19th day of APRIL in the year 2005, before me, the undersigned,
a Notary Public in and for said State, personally appeared XXXXXXXX XXXXXXXXX,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is(are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/Xxxx X. Xxxxx
----------------------------------
Notary Public
XXXX X. XXXXX
Notary Public, State of New Jersey
My Commission Expires May 16, 2007
FOR BANK USE ONLY
Authorization Confirmed:
----------------------------
Signature
-5-
