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MORTGAGE
by
SUPREMA SPECIALTIES, INC.
as Mortgagor
to
NATWEST BANK N.A.
as Mortgagee
Dated: March 29, 1996
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Mortgaged Premises: ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, Lot 5
Paterson, New Jersey
Record and Return to: Windels, Marx, Davies & Ives
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Prepared by:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
MORTGAGE
THIS MORTGAGE (hereinafter referred to as the "Mortgage"), is made this
29th day of March, 1996,
BY
Suprema Specialties, Inc. a corporation duly organized, validly existing and in
good standing under the laws of the State of New York, having its principal
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter
referred to as the "Mortgagor"),
TO
NatWest Bank N.A., a national banking association duly organized and validly
existing under the laws of the United States of America, having its principal
office located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as the "Mortgagee").
W I T N E S S E T H:
WHEREAS, pursuant to a certain Mortgage Note dated the date hereof, in the
original principal amount of ONE MILLION FIFTY THOUSAND AND 00/100 DOLLARS
($1,050,000.00) lawful money of the United States of America, executed by the
Mortgagor, as maker, and delivered to the Mortgagee, as payee (hereinafter
referred to as the "Note"), the Mortgagee has agreed to make a loan to the
Mortgagor (hereinafter referred to as the "Loan");
WHEREAS, this Mortgage is given and made by the Mortgagor to the Mortgagee
as security for (i) the repayment of the indebtedness of the Mortgagor to the
Mortgagee evidenced by the Note, and (ii) the performance of the terms,
conditions and covenants of the Mortgagor set forth in the Note, this Mortgage
and the other loan documents executed in connection therewith (hereinafter
collectively referred to as the "Loan Documents");
NOW, THEREFORE, in order to induce the Mortgagee to make the Loan to the
Mortgagor and to secure the payment of the indebtedness of the Mortgagor to the
Mortgagee evidenced by the Note made by the Mortgagor to the order of the
Mortgagee and to secure the performance by the Mortgagor of all of its other
obligations and covenants pursuant to the Note and the other Loan Documents, and
to assure payment of all other indebtedness, monetary obligations, liabilities
and duties of any kind of the Mortgagor, direct or indirect, absolute or
contingent, joint or several, due or not due, liquidated or not liquidated,
arising under the Note, this Mortgage, and the other Loan Documents, the
Mortgagor has mortgaged, given, granted, released, assigned, transferred and set
over unto the Mortgagee, and by these presents does hereby mortgage, give,
grant, release, assign, transfer and set over unto the Mortgagee, its successors
and assigns forever, the following described property and rights:
ALL those certain lots, pieces or parcels of land and premises situate,
lying and being in the City of Paterson, County of Passaic, and State of New
Jersey, as more particularly described on SCHEDULE "A" attached hereto and made
a part hereof (hereinafter referred to as the "Premises"); and
TOGETHER with all buildings, structures, and improvements of every nature
whatsoever now or hereafter situated on the Premises (hereinafter referred to as
the "Improvements"); and
TOGETHER with all and singular the tenements, hereditaments, rights-of-way,
privileges,
liberties, easements, riparian rights, woods, waters, watercourses, mineral, oil
and lights and appurtenances thereunto belonging, or in any wise appertaining,
and the reversion and reversions and remainders, rents, income, issues and
profits thereof; and
TOGETHER with all right, title and interest of the Mortgagor, now owned or
hereafter acquired, in and to any streets, the land lying in the bed of any
streets, roads or avenues, opened or proposed, in front of, adjoining or
abutting the Premises to the center line thereof, and all strips and gores
within or adjoining the Premises, easements and rights-of-way, public or
private, all sidewalks and alleys, now or hereafter used in connection with the
Premises or abutting the Premises; and
TOGETHER with all furniture, fixtures, equipment and other articles of
personal property owned by the Mortgagor and now or hereafter attached to or
used in connection with, or with the operation of, any improvements located on
the Premises, as to which this Mortgage constitutes a security agreement under
the New Jersey Uniform Commercial Code (in addition to and not in lieu of any
other security agreement between the parties), including, without limitation,
all building supplies and materials, furniture, fixtures and equipment; all
furnaces, motors, dynamos, incinerators, machinery, generators, partitions,
elevators, steam and hot water boilers, heating, air conditioning equipment,
wall cabinets, lighting and power plants, coal and oil burning apparatus, pipes,
plumbing, radiators, sinks, bath tubs, water closets, refrigerators, gas and
electrical fixtures, stoves, ranges, shades, screens, blinds, washing machines,
clothes dryers, dishwashers, freezers, awnings, vacuum cleaning systems,
sprinkler systems or other fire prevention or extinguishing apparatus and
materials, including all accessories, additions, substitutions and replacements
thereof, and all cash and non-cash proceeds thereof, all of which shall be
deemed to be and remain and form a part of the Premises and are covered by the
lien of this Mortgage. If the lien of this Mortgage shall be subject to a
conditional ▇▇▇▇ of sale, chattel mortgage, or other security interest covering
any such property, then all the right, title and interest of the Mortgagor in
and to such property, together with the benefits of any deposits or payments now
or hereafter made thereon, are and shall be covered by the lien of this
Mortgage; and
TOGETHER with any and all awards, damages, payments and other compensation,
and any and all claims therefor and rights thereto, which may result from taking
or injury by virtue of the exercise of the power of eminent domain, or any
damage, improvements, injury or destruction in any manner caused to the Premises
or thereon, or any part thereof; and
TOGETHER with all the estate, right, title, interest, property, possession,
claim and demand whatsoever of the Mortgagor, as well in law as in equity, of,
in and to the same and every part and parcel thereof with the appurtenances
(hereinafter the Premises and all the Improvements, rights, interests and
benefits that go with it as described above shall be collectively referred to as
the "Mortgaged Premises").
TO HAVE AND TO HOLD the above-granted Mortgaged Premises unto the
Mortgagee, its successors and assigns, to its and their own proper use, benefit
and behoof forever.
PROVIDED THAT if the Mortgagor shall well and truly pay, or there shall
otherwise be paid to the Mortgagee, the indebtedness evidenced by the Note
secured hereby at the time and in the manner provided in the Note and/or this
Mortgage, and the Mortgagor shall well and truly abide by and comply with each
and every covenant and condition set forth in this Mortgage, the Note and the
other Loan Documents, then these presents and the lien and interest hereby
transferred and assigned shall cease, terminate and be void. The Mortgagee shall
release the Mortgaged Premises and renounce any other rights granted to it
herein, and shall execute at the request of the Mortgagor a release of this
Mortgage and any other instrument to that effect deemed
necessary or desirable, upon payment and performance being made on the
indebtedness and covenants secured hereby.
ARTICLE I. THE MORTGAGOR REPRESENTS, WARRANTS, COVENANTS AND AGREES WITH
THE MORTGAGEE AS FOLLOWS:
Section 1. Definitions. In this Mortgage, all words and terms not defined
herein shall have the respective meanings and be construed herein as provided in
the Note. Any reference to a provision of the Note shall be deemed to
incorporate that provision as a part hereof in the same manner and with the same
effect as if the same were fully set forth herein.
Section 2. Interpretation and Construction. The provisions of the Note
shall be applied to this Mortgage in the same manner as applied therein.
Section 3. Beneficiaries. Nothing herein expressed or implied is intended
or shall be construed to confer upon, or to give to, any person other than the
Mortgagor and the Mortgagee any right, remedy or claim under or by reason
hereof. All covenants, stipulations and agreements herein contained by and on
behalf of the Mortgagor shall be for the sole and exclusive benefit of the
Mortgagee.
Section 4. Indebtedness. The Mortgagor shall pay the indebtedness evidenced
by the Note and secured by this Mortgage at the time and in the manner provided
for the payment of the same in the Note.
Section 5. No Credit for Taxes Paid. The Mortgagor shall not be entitled to
any credit against payments due hereunder by reason of the payment of any taxes,
assessments, water or sewer rent or other governmental charges levied inst the
Mortgaged Premises.
Section 6. Seisin and Warranty. The Mortgagor is seized of an indefeasible
estate in fee simple in the Mortgaged Premises, and Mortgagor warrants the title
to the Mortgaged Premises, subject to those title exceptions set forth in title
commitment no. 96-LT-0016 issued by ▇▇▇▇▇▇▇ Title Guaranty Company, as continued
through the date hereof. The Mortgagor hereby covenants that the Mortgagor shall
(i) preserve such title and the validity and priority of the lien of this
Mortgage and shall forever warrant and defend the same to the Mortgagee against
all lawful claims whatsoever and the claims of all persons or entities
(hereinafter collectively referred to as "Persons") whomsoever claiming or
threatening to claim the same or any part thereof, and (ii) make, execute,
acknowledge and deliver all such further or other deeds, documents, instruments
or assurances, and cause to be done all such further acts and things as may at
any time hereafter be reasonably required by the Mortgagee to fully protect the
lien of this Mortgage.
Section 7. Insurance. (i) The Mortgagor shall obtain, or cause to be
obtained, and shall maintain or cause to be maintained, at all times throughout
the term of this Mortgage, insurance on the Mortgaged Premises in such manner
and against such loss, damage and liability, including liability to third
parties, as is customary with Persons operating properties similar to the
Mortgaged Premises and in the same or similar business and located in the same
or similar areas. Such insurance shall include, without limitation, the
following:
(a) Commercial general liability insurance (including garage liability,
innkeeper's liability, products liability and elevator liability, if applicable)
insuring against any and all liability of the Mortgagor or claims of liability
of Mortgagor arising out of, occasioned by or resulting from any accident or
otherwise resulting in or about the Mortgaged Premises and the adjoining
streets, sidewalks and passageways, including XCU, blanket contractual liability
and completed
operations coverage, in such amounts as are usually carried by Persons operating
properties similar to the Mortgaged Premises, but in any event with a combined
single limit of not less than $1,000,000.00 for personal injury and property
damage with respect to any one occurrence, which amount shall be increased from
time to time to reflect what a reasonably prudent Person operating property
similar to the Mortgaged Premises would carry, together with excess/umbrella
liability insurance on a "follow form" basis with minimum limits of
$10,000,000.00;
(b) Loss or damage by perils customarily included under standard "all risk"
policies, including business interruption and rental insurance if applicable,
covering all perils and contingencies as may be required by the Mortgagee,
including a so-called "agreed amount" replacement cost endorsement insuring one
hundred percent (100%) of the replacement cost of the Improvements;
(c) For any period during which construction is being performed on the
Mortgaged Premises, "Builder's All-Risk" coverage policy of fire and hazard
insurance (completed value form) with respect to the Mortgaged Premises,
including vandalism and malicious mischief, which insurance policy shall contain
a replacement cost endorsement;
(d) If the Mortgaged Premises are required to be insured pursuant to the
Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of
1968, and the regulations promulgated thereunder, because it is located in an
area which has been identified by the Secretary of Housing and Urban Development
as a Flood Hazard Area, then a flood insurance policy covering the Mortgaged
Premises in an amount not less than the outstanding principal balance of the
Note, or the maximum limit of coverage available, whichever amount is less;
(e) Title insurance coverage in the form of an ALTA standard mortgagee
title insurance policy insuring this Mortgage as a valid first lien on the
Mortgaged Premises in the principal amount of the Note; subject only to those
matters approved by Mortgagee and set forth on the Commitment for Title
Insurance issued to the Mortgagee by a title insurer (hereinafter referred to as
the "Title Company") in connection with this Mortgage; and
(f) Boiler and machinery insurance covering pressure vessels, air
tanks, boilers, machinery, pressure piping, heating, air conditioning and
elevator equipment, provided that the Mortgaged Premises contains equipment of
such nature.
(ii) Each insurance policy required under this Section 7 shall be written
by insurance companies authorized or licensed to do business in the State of New
Jersey having an ▇▇▇▇▇▇ ▇. Best Company, Inc. rating of A or higher and a
financial size category of not less than XII, and shall be on such forms and
written by such companies as shall be reasonably approved by the Mortgagee. Such
insurance coverage may be effected under overall blanket or excess coverage
policies of the Mortgagor, except as to public liability insurance which may be
effected under combined single limit.
(iii) Each insurance policy required under this Section 7 providing
insurance against loss or damage to property shall be written or endorsed so as
to (a) contain a standard mortgagee or secured party endorsement, as the case
may be, or its equivalent, (b) make all losses payable directly to the
Mortgagee, without contribution, and (c) provide for deductibles reasonably
satisfactory to the Mortgagee.
(iv) Each insurance policy required under this Section 7 and providing
public liability coverage shall be written and endorsed so as to name the
Mortgagee as an additional insured, as its interest may appear.
(v) Each insurance policy required under this Section 7 shall contain a
provision to the effect that such policy shall not lapse or be terminated,
cancelled, altered or in any way limited in coverage or reduced in amount unless
the Mortgagee is notified in writing at least thirty (30) days prior to such
lapse, termination, cancellation, alteration, limitation or reduction. At least
thirty (30) days prior to the expiration of any such policy, the Mortgagor shall
furnish evidence satisfactory to the Mortgagee that such policy has been renewed
or replaced or is no longer required by this Section 7.
(vi) Each insurance policy required under this Section 7 (except flood
insurance written under the federal flood insurance program) shall contain an
endorsement or agreement by the insurer that any loss shall be payable to the
Mortgagee, as its interest may appear, in accordance with the terms of such
policy notwithstanding any act or negligence of the Mortgagor which might
otherwise result in forfeiture of said insurance and the further agreement of
the insurer waiving all rights of set-off, counterclaim, deduction or
subrogation against the Mortgagor (so as not to interfere with the Mortgagee's
rights).
(vii) In the event of loss or damage to the collateral, the proceeds of any
insurance provided hereunder shall be applied as set forth in Section 14 of this
Article I; in the event of a public liability claim, the proceeds of any
insurance provided hereunder shall be applied toward extinguishing or satisfying
the liability and expenses incurred in connection therewith.
(viii) The Mortgagor shall not take out any separate or additional
insurance with respect to the Mortgaged Premises which is contributing in the
event of loss unless it is properly compatible with all of the requirements of
this Section 7.
Section 8. Preservation, Maintenance and Repair. All Improvements which are
presently erected and in the future are to be erected upon the Mortgaged
Premises, shall, at the Mortgagor's own cost and expense, be kept in good and
substantial repair, working order and condition, and the Mortgagor shall from
time to time make, or cause to be made, all necessary and proper repairs,
replacements, improvements and betterments thereto. The Mortgagor shall not
remove, demolish, materially alter or discontinue the use of any material part
of the Mortgaged Premises without the prior express written consent of the
Mortgagee, except that the Mortgagor shall from time to time make such
substitutions, additions, modifications and improvements as may be necessary and
as shall not impair the structural integrity, operating efficiency and economic
value of the Mortgaged Premises. All alterations, replacements, renewals or
additions made pursuant to this Section 8 shall automatically become and
constitute a part of the Mortgaged Premises and shall be covered by the lien of
this Mortgage. The Mortgagor shall not do, and shall not permit to be done, any
act which may in any way impair or weaken the security under this Mortgage.
Section 9. Declaration of No Offset. The Mortgagor represents to the
Mortgagee that the Mortgagor has no knowledge of any offsets, counterclaims or
defenses to the principal indebtedness secured hereby, or to any part thereof,
or the interest thereon, either at law or in equity. The Mortgagor shall, within
fifteen (15) business days upon request by mail, furnish a duly acknowledged
written statement in form reasonably satisfactory to the Mortgagee stating
either that the Mortgagor knows of no offsets or defenses existing against such
indebtedness, or if such offsets or defenses are alleged to exist, the nature
and extent thereof, and in either case, such statement shall set forth the
amount due hereunder.
Section 10. No Removal of Fixtures. The Mortgagor shall not remove or
suffer to be removed from the Mortgaged Premises any fixtures owned by the
Mortgagor as the term "fixtures" (other than trade fixtures) is defined by the
law in New Jersey presently, or in the future to be incorporated into, installed
in, annexed or affixed to the Mortgaged Premises (unless such fixtures have been
replaced with similar fixtures of equal or greater utility and value or which
have become obsolete).
Section 11. Security Agreement. This Mortgage constitutes a security
agreement under the New Jersey Uniform Commercial Code, and the Mortgagor hereby
grants to the Mortgagee a security interest in all furniture, fixtures,
equipment and personal property and all other machinery, appliances,
furnishings, tools and building materials now owned or hereafter acquired by the
Mortgagor, and installed or to be installed in or on the Mortgaged Premises and
used or to be used in the management or operation of the Mortgaged Premises, and
all substitutions, replacements, additions and accessions thereto, together with
all cash and non-cash proceeds thereof. The Mortgagor shall execute, deliver,
file and refile any financing statements, continuation statements, or other
security agreements that the Mortgagee may require from time to time to confirm
the lien of this Mortgage with respect to such property. Without limiting the
foregoing, the Mortgagor hereby irrevocably constitutes and appoints the
Mortgagee with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority (coupled with an
interest) in the place and stead of such Mortgagor and in the name of such
Mortgagor or in the Mortgagee's own name, for the Mortgagee to execute, deliver
and file such instruments for and on behalf of the Mortgagor. Notwithstanding
any release of any or all of that property included in the Mortgaged Premises
which is deemed "real property", and proceedings to foreclose this Mortgage or
its satisfaction of record, the terms hereof shall survive as a security
agreement with respect to the security interest created hereby and referred to
above until the repayment or satisfaction in full of the obligations of the
Mortgagor as are now or hereafter secured hereby.
Section 12. Taxes. The Mortgagor shall prepare and timely file all federal,
state and local tax returns required to be filed by the Mortgagor and promptly
pay and discharge or cause to be promptly paid and discharged all taxes,
assessments, municipal or governmental rates, charges, impositions, liens and
water and sewer rents or any part thereof, heretofore or hereafter imposed upon
the Mortgagor or in respect of any of the Mortgagor's property and assets before
the same shall become in default, as well as all lawful claims which, if unpaid
might become a lien or charge upon such property and assets or any part thereof,
except for those taxes, assessments and other governmental charges then being
contested in good faith by the Mortgagor by appropriate proceedings (provided
that such contest shall not result in a new lien being placed on any of the
Mortgagor's properties or assets or result in any of the Mortgagor's properties
or assets being subject to loss or forfeiture as a result of the nonpayment of
such items during the continuance of said contest) and for which the Mortgagor
has maintained adequate reserves or accrued the estimated liability on the
Mortgagor's balance sheets for payment thereof. The Mortgagor shall submit to
the Mortgagee, upon request, an affidavit signed by the Mortgagor certifying
that, to the best of the Mortgagor's knowledge, all current federal and state
information income tax returns have been filed to date and all real property
taxes, assessments, governmental charges or levies and other lawful claims with
respect to the Mortgagor's properties and assets have been paid to date. Upon
the occurrence of an Event of Default, the Mortgagor shall, at the request of
the Mortgagee, in addition to the regular payment on the Note, pay into a
non-interest bearing account held by the Mortgagee, at the times when the
monthly installment of principal and interest is payable, an amount equal to
one-twelfth (1/12th) of the annual estimated real estate taxes levied with
respect to the Mortgaged Premises so that funds are available to pay said real
estate taxes and assessments when due, and such sum shall be held by the
Mortgagee for the payment of such real estate taxes and assessments as they
become due. If the amount so estimated shall prove insufficient, then the
Mortgagor shall pay the required deficiency upon demand.
Section 13. Change in Laws. During the term of this Mortgage, in the event
of the passage after the date of this Mortgage of any law of the State of New
Jersey, or any other governmental entity, changing in any way the laws now in
force for the taxation of mortgages, or debts secured thereby, for state or
local purposes, or the manner of the operation of any such taxes, so as to
affect the interest of the Mortgagee, then and in such event, the Mortgagor
shall bear and pay the full amount of such taxes, provided that if for any
reason payment by the Mortgagor of any such new or additional taxes would be
unlawful or if the payment thereof would constitute usury or render the Loan or
indebtedness secured hereby wholly or partially usurious under any of the terms
or provisions of the obligation secured hereunder, or this Mortgage, or
otherwise, the Mortgagee may, at the Mortgagee's option, declare the whole sum
secured by this Mortgage, with interest thereon, to be immediately due and
payable, or the Mortgagee may, at the Mortgagee's option, pay that amount or
portion of such taxes as renders the Loan or indebtedness secured hereby
unlawful or usurious, in which event the Mortgagor shall concurrently therewith
pay the remaining lawful and nonusurious portion or balance of said taxes.
Section 14. Damage, Destruction and Condemnation.
(i) If all or any part of the Mortgaged Premises shall be damaged or
destroyed, or if title to or the temporary use of the whole or any part of any
of the Mortgaged Premises shall be taken or condemned by a competent authority
for any public use or purpose, there shall be no abatement or reduction in the
amounts payable by the Mortgagor hereunder or under the Note, and the Mortgagor
shall continue to be obligated to make such payments.
(ii) If the Mortgaged Premises or any part thereof is partially or totally
damaged or destroyed by fire or any other cause, the Mortgagor shall give prompt
written notice thereof to the Mortgagee. Upon the occurrence of such damage or
destruction to the Mortgaged Premises, where the damage to the Mortgaged
Premises exceeds $25,000.00. the Mortgagor shall have no claim against the
insurance proceeds, or be entitled to any portion thereof, and all rights to the
insurance proceeds are hereby assigned to the Mortgagee to be applied on account
of the indebtedness secured hereby that remains unpaid. If the damage exceeds
$25,000.00, the Mortgagee shall have the option, in its sole discretion, either
(a) to settle and adjust any claim under any insurance policies without the
consent of Mortgagor or (b) to allow Mortgagor to settle and adjust such claim
without the consent of Mortgagee; provided that in either case Mortgagee shall,
and is hereby authorized to, collect and receive any such insurance proceeds;
and the expenses incurred by Mortgagee in the adjustment and collection of
insurance proceeds shall be added to the indebtedness hereby, and shall be
reimbursed to Mortgagee upon demand or, in the event and to the extent
sufficient proceeds are available, shall be deducted and retained by Mortgagee
from said insurance proceeds prior to any other application thereof. Each
insurance company which has issued an insurance policy is hereby authorized and
directed to make payment for all losses covered by an insurance policy to
Mortgagee alone, and not to Mortgagee and Mortgagor jointly.
(iii) Mortgagee shall, in its sole discretion, elect to apply the net
proceeds of insurance policies consequent upon any casualty to either (a) to
reduce the indebtedness secured hereby or (b) to reimburse Mortgagor for the
cost of restoring, repairing, replacing or rebuilding (hereinafter collectively
referred to as "Restoring") the loss or damage to the Mortgaged Premises. In the
event Mortgagee elects to use such net proceeds to reimburse Mortgagor for the
costs of Restoring, then such reimbursement shall be subject to the conditions
and in accordance with the provisions of Section 14(viii) hereof. If Mortgagee
elects to apply the net proceeds of insurance to the indebtedness secured hereby
and such proceeds do not discharge the indebtedness in full, the entire
indebtedness shall become immediately due and payable with interest thereon at
the Default Rate.
(iv) In the event net insurance proceeds are made available to Mortgagor
for the purpose of Restoring the Mortgaged Premises, Mortgagor hereby covenants
to restore, repair, replace or rebuild the Mortgaged Premises, to be of at least
equal value, and of substantially the same character as prior to such loss or
damage, all to be effected in accordance with plans, specifications and
procedures to be first submitted to Mortgagee and subject to Mortgagee's
approval. In the event the insurance proceeds are insufficient to pay the
aforementioned restoration costs in full, then Mortgagor shall pay all costs of
such Restoring which are in excess of such net insurance proceeds.
(v) Any portion of the insurance proceeds remaining after payment in full
of the obligations secured hereby shall be paid to Mortgagor or as ordered by a
court of competent jurisdiction.
(vi) At the written request of Mortgagor, the insurance proceeds held by or
for the benefit of Mortgagee shall be held in an interest bearing account.
(vii) In the event of foreclosure of the Mortgage or other transfer of
title to the Mortgaged Premises in extinguishment of the obligations secured
hereby, all right, title and interest of Mortgagor in and to any insurance
policies then in force shall pass to the purchaser of the Mortgaged Premises in
foreclosure, or the grantee of a deed in lieu of foreclosure, and Mortgagor
hereby appoints Mortgagee its attorney-in-fact with full irrevocable authority
(coupled with an interest), in Mortgagor's name, to assign and transfer all such
policies and proceeds to such purchaser or grantee.
(viii) If Mortgagee elects to apply the net proceeds of insurance policies
to reimburse the costs of Restoring to Mortgagor in accordance with Section
14(iii)(b) and provided no Event of Default has occurred and is then continuing,
the net insurance proceeds held by Mortgagee for Restoring of the Mortgaged
Premises shall be disbursed from time to time upon Mortgagee being furnished
with (a) evidence reasonably satisfactory to it of the estimated cost of
completion of the Restoring, (b) funds (or assurance satisfactory to Mortgagee
that such funds are available) sufficient in addition to the net proceeds of
insurance, to complete and fully pay for the completion of the Restoring and (c)
such architect's certificates, contractors', mechanics' and materialmen's
waivers of lien, contractor's sworn statements, title insurance endorsements,
plats of survey and such other evidence of cost, payment and performance as
Mortgagee may require and approve; and Mortgagee, in any event, may require that
all plans and specifications for such Restoring be submitted to and approved by
Mortgagee prior to commencement of any work, which consent shall not be
unreasonably withheld or delayed. No payment made prior to the final completion
of the Restoring shall, when added to all previous payments, exceed ninety
percent (90%) of the value of the work performed from time to time, as such
value shall be determined by Mortgagee in its sole and exclusive judgment; funds
received by Mortgagee pursuant to subparagraph (b) above shall be disbursed
prior to disbursement of net insurance proceeds, except as may otherwise be
provided herein; and at all times the undisbursed balance of such proceeds
remaining in the hands of Mortgagee, together with funds deposited or
irrevocably committed to the satisfaction of completion of the Restoring, free
and clear of all liens on proceeds held by Mortgagee after payment of such costs
of Restoring, shall be paid to Mortgagor. If there is an Event of Default while
Mortgagee is holding funds for Restoring, Mortgagee may, at its sole option,
apply such funds against the indebtedness secured hereby, in such order,
proportion and priority as Mortgagee may elect in its sole and absolute
discretion.
(ix) Notwithstanding anything to the contrary contained in this Mortgage,
if the Improvements shall be damaged or destroyed (in whole or in part) by any
one fire or other casualty, Mortgagee shall, in accordance with the provisions
of Section 14(viii) above, make the net amount of all insurance proceeds
received by Mortgagee as a result of such damage or destruction after deduction
of the reasonable costs and expense, if any, in collecting the insurance
proceeds, available for Restoring, provided that: (a) no Event of Default shall
have occurred and shall be continuing under the Mortgage, the Note or the other
Loan Documents; (b) Mortgagee shall be reasonably satisfied that the Restoring
can be completed on or before one hundred eighty (180) days after the occurrence
of such damage or casualty; (c) the maturity date of the Note is not less than
18 months from the date of such damage or casualty; and (d) Mortgagor shall
execute and deliver to Mortgagee a completion guaranty in form and substance
satisfactory to Mortgagee pursuant to the provisions of which Mortgagor shall
guaranty to Mortgagee the lien-free (other than the lien presently held by
Mortgagee) completion by Mortgagor of the Restoring in accordance with the
provisions of this Mortgage.
(x) Any and all awards (hereinafter referred to as the "Awards") heretofore
or hereafter made or to be made to the present, or any subsequent, owner of the
Mortgaged Premises, by any governmental or other lawful authority for the taking
by condemnation or eminent domain, of all or any part of the Mortgaged Premises
(including any award from the United States government at any time after the
allowance of a claim therefor, the ascertainment of the amount thereto, and the
issuance of a warrant for payment thereof), or the proceeds from a sale in lieu
of such condemnation or eminent domain are hereby assigned by Mortgagor to
Mortgagee, which Awards Mortgagee is hereby authorized to collect and receive
from the condemnation authorities, and Mortgagee is hereby authorized to give
appropriate receipts and acquittance therefor. Mortgagor shall give Mortgagee
immediate notice of the actual or threatened commencement of any condemnation or
eminent domain proceedings affecting all or any part of the Mortgaged Premises
and shall deliver to Mortgagee copies of any and all papers served in connection
with any such proceedings. Mortgagor further agrees to make, execute and deliver
to Mortgagee, at any time upon request, free, clear and discharged of any
encumbrance of any kind whatsoever (except the rights of holders of any junior
mortgage loans expressly consented to in writing by Mortgagee, provided such
rights are expressly subordinate to the rights of Mortgagee), any and all
further assignments and other instruments deemed reasonably necessary by
Mortgagee for the purpose of validly and sufficiently assigning to Mortgagee all
Awards and other compensation heretofore and hereafter made to Mortgagor for any
taking, either permanent or temporary, under any such proceeding. If any portion
of or interest in the Mortgaged Premises is taken by condemnation or eminent
domain, either temporarily or permanently, and the remaining portion of the
Mortgaged Premises is not, in the judgment of Mortgagee, an architectural and
economic unit of the same character and is not materially less valuable than the
same was prior to the taking, then, at the option of Mortgagee, the entire
indebtedness shall immediately become due and payable. After deducting from the
Award for such taking all of its expenses incurred in the collection and
administration of the Award, including reasonable attorney's fees and
disbursements, Mortgagee shall be entitled to apply the net proceeds towards
repayment of such portion of the indebtedness as it deems appropriate without
affecting the lien of the Mortgage. In the event of any partial taking of the
Mortgaged Premises or any interest in the Mortgaged Premises which in the
judgment of Mortgagee leaves the Mortgaged Premises as an architectural and
economic unit of the same character and not materially less valuable than the
same was prior to the taking, and provided no Event of Default has occurred and
is then continuing, the Mortgagee shall apply the Award to reimburse Mortgagor
for the cost of restoration and rebuilding the Mortgaged Premises in accordance
with plans, specifications and procedures which must be submitted to and
approved by Mortgagee, and such Award shall be disbursed in the same manner as
is provided in Section 14 (viii) hereof for the application of insurance
proceeds, provided that any surplus after payment of such costs shall be applied
on account of the indebtedness. If the Award is not applied for the
reimbursement of such restoration costs, the Award shall be applied against the
indebtedness, in such order or manner as Mortgagee shall elect.
Section 15. Compliance with Laws. The Mortgagor agrees to comply, and to
cause all tenants of all or any portion of the Mortgaged Premises to comply,
with all laws, rules, regulations and ordinances made or promulgated by lawful
authority which are now or may hereafter be applicable to the Mortgaged Premises
within such time as may be required by law.
Section 16. Indemnification. The Mortgagor hereby agrees to and does hereby
indemnify, protect, defend and save harmless the Mortgagee and its trustees,
officers, employees, agents, attorneys and shareholders (hereinafter referred to
as the "Indemnified Parties") from and against any and all losses, damages,
expenses or liabilities of any kind or nature and from any suits, claims or
demands, including reasonable counsel fees incurred in investigating or
defending such claim, suffered by any of them and caused by, relating to,
arising out of, resulting from, or in any way connected with this Mortgage and
the transactions contemplated herein (unless caused by the negligence or willful
misconduct of the Indemnified Parties), including, without limitation, (i)
disputes between any architect, general contractor, subcontractor, materialman
or supplier, or on account of any act or omission to act by the Indemnified
Parties in connection with this Mortgage, or (ii) losses, damages, expenses or
liabilities sustained by the Indemnified Parties in connection with any
environmental sampling or cleanup of the Mortgaged Premises required or mandated
by any federal, state or local law, ordinance, rule or regulation, including,
without limitation, the Environmental Laws, as hereinafter defined. In case any
action shall be brought against an Indemnified Party based upon any of the above
and in respect to which indemnity may be sought against the Mortgagor, the
Indemnified Party shall promptly notify the Mortgagor in writing, and the
Mortgagor shall assume the defense thereof, including the employment of counsel
selected by the Mortgagor and reasonably satisfactory to the Indemnified Party,
the payment of all costs and expenses and the right to negotiate and consent to
settlement. Upon reasonable determination made by the Indemnified Party, the
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof; provided, however, that said
Indemnified Party shall pay the costs and expenses incurred in connection with
the employment of separate counsel. The Mortgagor shall not be liable for any
settlement of any such action effected without the Mortgagor's consent, but if
settled with the Mortgagor's consent, or if there be a final judgment for the
claimant in any such action, the Mortgagor agrees to indemnify and save harmless
the Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. The provisions of this Section 16 shall survive the
termination of this Mortgage and the repayment of the Note.
Section 17. Assignment of Rents. The Mortgagor hereby absolutely and
unconditionally assigns to the Mortgagee the rents, issues and profits arising
out of or from the Mortgaged Premises, and the Mortgagor grants to the Mortgagee
the right to enter upon and to take possession of the Mortgaged Premises for the
purpose of collecting the same and to let the Mortgaged Premises or any part
thereof, and to apply the rents, issues and profits, after payment of all
necessary charges and expenses, on account of the indebtedness secured hereby.
This assignment and grant shall continue in effect until this Mortgage is paid
in full and discharged of record. The Mortgagee hereby waives the right to enter
upon and to take possession of the Mortgaged Premises for the purpose of
collecting said rents, issues and profits, and the Mortgagor shall be entitled
to collect, receive, retain and use said rents, issues and profits until the
occurrence of an Event of Default under this Mortgage, but such right of the
Mortgagor may be revoked by the Mortgagee upon the occurrence of an Event of
Default on five (5) days written notice. The Mortgagor shall not, without the
written consent of the Mortgagee, receive or collect rent from any tenant of the
Mortgaged Premises or any part thereof for a period of more than one (1) month
in advance, and in the event of the occurrence of an Event of Default under this
Mortgage, the Mortgagor shall pay monthly in advance to the Mortgagee or to any
receiver appointed to collect said rents, issues and profits, the fair and
reasonable rental value for the use and occupation of the Mortgaged Premises or
of such part thereof as may be in the possession of the Mortgagor, and upon
default in any such payment the Mortgagor shall vacate and surrender the
possession of the Mortgaged Premises to the Mortgagee or to such receiver. If
the Mortgagor does not so vacate and surrender the Mortgaged Premises then the
Mortgagor may be evicted by summary proceedings. Notwithstanding anything above
to the contrary, in the event of a
conflict or inconsistency between this Section 17 and the Absolute Assignment of
Leases and Rents granted the date hereof by Mortgagor to Mortgagee, the terms of
the Absolute Assignment of Leases and Rents shall govern.
Section 18. Advances. Upon the occurrence of an Event of Default by the
Mortgagor under this Mortgage and/or the Note, the Mortgagee may at its option
remedy such Event of Default, and all payments made by the Mortgagee to remedy
an Event of Default by the Mortgagor (including reasonable attorney's fees) and
the total of any payment or payments due from the Mortgagor to the Mortgagee
which are in default, together with interest thereon at the Default Rate set
forth in the Note (such interest to be calculated from the date of such advance
to the date of payment thereof by the Mortgagor), shall be added to the debt
secured by this Mortgage until paid, and the Mortgagor covenants to repay the
same to the Mortgagee on the next interest payment date of the Note. Any such
sums and the interest thereon shall be a lien on the Mortgaged Premises prior to
any other lien attaching to or accruing subsequent to the lien of this Mortgage.
All monies paid, and all expenses paid or incurred, including attorneys' fees
and disbursements and other monies advanced by Mortgagee to protect the
Mortgaged Premises and the lien of this Mortgage, or to complete construction,
furnishing and equipping or to rent, operate and manage the Mortgaged Premises
or to pay any such operating costs and expenses thereof or to keep the Mortgaged
Premises operational and useable for their intended purpose shall be so much
additional debt secured by the Mortgage, whether or not the indebtedness, as a
result thereof, shall exceed the original principal balance set forth herein,
and shall become immediately due and payable on the next interest payment date
of the Note, and with interest thereon at the Default Rate set forth in the
Note. Inaction of Mortgagee shall never be considered as a waiver of any right
accruing to it on account of any Event of Default nor shall the provisions of
this Section 18 or any exercise by Mortgagee of its rights hereunder prevent any
default from constituting an Event of Default. Nothing contained herein shall be
construed to require Mortgagee to advance or expend monies for any purpose
mentioned herein, or for any other purpose, and any expenditure of monies or
action taken hereunder shall be at the sole option and discretion of Mortgagee.
Section 19. Transfer or Encumbrance of Mortgaged Premises.
(i) No part of the Mortgaged Premises shall in any manner be further
encumbered, sold, transferred or conveyed, or permitted to be further
encumbered, sold, transferred or conveyed, without the consent of Mortgagee,
which consent may be given or withheld in Mortgagee's sole discretion for any
reason or for no reason. The Mortgaged Premises shall not be encumbered by any
secondary or subordinate liens, including mechanics liens. The provisions of
this Section 19 shall apply to each and every such further encumbrance, sale,
transfer or conveyance, regardless of whether or not Mortgagee has consented to,
or waived by its action or inaction, its rights hereunder with respect to any
such previous further encumbrance, sale, transfer or conveyance.
Any consent by the Mortgagee, or any waiver of any Event of Default, under
this Section 19 shall not constitute a consent to, or waiver of any right,
remedy or power of the Mortgagee upon a subsequent Event of Default under this
Section 19.
(ii) Mortgagor recognizes that Mortgagee is entitled to keep its loan
portfolio at current interest rates by either making new loans at such rates or
collecting assumption fees and/or increasing the interest rate on a loan, the
security for which is purchased by a party other than Mortgagor. Mortgagor
further recognizes that any secondary or junior financing placed upon the
Mortgaged Premises (a) may divert funds which would otherwise be used to pay the
indebtedness secured hereby; (b) could result in the acceleration and
foreclosure by such junior
encumbrancer which would force Mortgagee to take measures and incur expenses to
protect its security; (c) would detract from the value of the Mortgaged Premises
should Mortgagee come into possession thereof with the intention of selling the
same; and (d) would impair Mortgagee's right to accept a deed in lieu of
foreclosure, as a foreclosure by Mortgagee would be necessary to clear the title
to the Mortgaged Premises. In accordance with the foregoing and for the purposes
of (w) protecting Mortgagee's security, both of repayment and of value of the
Mortgaged Premises; (x) giving Mortgagee the full benefit of its bargain and
contract with Mortgagor; (y) assumption fees; and (z) keeping the Mortgaged
Premises free of subordinate financing liens, Mortgagor agrees that if this
Section 19 is deemed a restraint on alienation, that it is a reasonable one.
Section 20. Environmental Matters. (i) For purposes of this Mortgage, the
following terms shall have following meanings:
"Hazardous Materials" shall mean existing and future asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls or related or similar
materials, petroleum products, explosives, radioactive materials, or any other
hazardous or toxic or harmful materials, wastes and substances or any other
chemical, material, substance or element which is hereinafter defined,
determined, identified, prohibited, limited or regulated by the Environmental
Laws, or any other chemical, material, substance or element which is known to be
harmful to the health or safety of occupants of property or which is hereinafter
defined as a hazardous or toxic substance by any Federal, State, or local law,
ordinance, rule or regulation, including, but not limited to, the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. 1801
et seq.), and/or the regulations promulgated in relation thereto, all as the
same may be amended from time to time (hereinafter collectively referred to as
the "Federal Statutes"), the New Jersey Spill Compensation and Control Act, as
amended, N.J.S.A. 58:10-23.11 et seq., the New Jersey Environmental Cleanup
Responsibility Act, as amended by the Industrial Site Recovery Act, and as may
be further amended, N.J.S.A. 13:1K-6 et seq., the New Jersey Leaking Underground
Storage Tank Act, as amended, N.J.S.A. 58:1OA-21 et seq. (hereinafter
collectively referred to as the "State Statutes"), and the regulations
promulgated in relation thereto, all as the same may be amended from time to
time.
"Environmental Laws" shall mean any applicable federal, state or local
laws, rules, regulations, resolutions, ordinances, directives or orders (whether
now existing or hereafter enacted or promulgated) or any judicial or
administrative interpretation of such laws, rules, regulations, resolutions,
ordinances, directives or orders or any other applicable determination regarding
land, water, air, health, safety or environment including, for example but not
limited to, the Federal Statutes and the State Statutes.
"Governmental Authority" shall mean any federal, state, and local
government, governing body, agency, court, tribunal, authority, subdivision,
bureau or other recognized body having jurisdiction to enact, promulgate,
interpret, enforce, review or repeal any Environmental Law.
"Environmental Complaint" shall mean any judgment, lien, order, complaint,
notice, citation, action, proceeding or investigation pending before any
Governmental Authority, including, without limitation, any environmental
regulatory body, with respect to or threatened against or affecting the
Mortgagor or relating to its business, assets, property or facilities or the
Mortgaged Premises, in connection with any Hazardous Material or any Hazardous
Discharge or any Environmental Law.
"Hazardous Discharge" shall mean any release of a Hazardous Material caused
by the seeping, spilling, leaking, pumping, pouring, emitting, using, emptying,
discharging, injecting, escaping, leaching, dumping or disposing of any
Hazardous Material into the environment, and any liability for the costs of any
cleanup or other remedial action.
(ii) The Mortgagor covenants, represents and warrants that except as
disclosed in the Phase I Environmental Site Assessment by ▇▇▇▇▇▇-▇▇▇▇▇ and
Associates, Inc. dated July 20, 1994:
(a) to the best of the Mortgagor's knowledge, after due inquiry and
investigation, none of the real property owned or occupied by the Mortgagor and
located in the state in which the Mortgaged Premises is situated, including, but
not limited to the Mortgaged Premises, has ever been used by previous owners,
operators or occupants or the Mortgagor to generate, manufacture, refine,
transport, treat, store, handle or dispose, transfer, produce, process or in any
manner deal with any Hazardous Material,
(b) the Mortgagor has not received a summons, citation, directive, letter
or other communication, written or oral, from any Government Authority
concerning any intentional or unintentional action or omission on the
Mortgagor's part which had resulted in the violation of any Environmental Laws,
as the same may relate to the Mortgaged Premises,
(c) to the best of the Mortgagor's knowledge, after due inquiry and
investigation, no lien has been attached to any revenues or any real or personal
property owned by the Mortgagor and located in the state where the Mortgaged
Premises are located, including, but not limited to the Mortgaged Premises, for
"Damages" and/or "Cleanup and Removal Costs", as such terms are hereinafter
defined in any Environmental Law, or arising from an intentional or
unintentional act or omission in violation thereof by the Mortgagor or by any
previous owner and/or operator of such real or personal property, including, but
not limited to the Mortgaged Premises,
(d) the Mortgagor has duly complied, and shall continue to comply, with the
provisions of the Environmental Laws governing it, its business, assets,
property, facilities and the Mortgaged Premises, and shall keep the Mortgaged
Premises free and clear of any liens imposed pursuant to such laws,
(e) the Mortgagor shall not, and shall not permit any of its officers,
partners, employees, agents, contractors, licensees, tenants, occupants or
others to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce, process or in any manner deal with any Hazardous
Material on the Mortgaged Premises except in accordance with all Environmental
Laws applicable thereto,
(f) there is not now outstanding any Environmental Complaint issued by any
Governmental Authority to the Mortgagor or relating to the Mortgagor's business,
assets, property, and facilities or the Mortgaged Premises under any
Environmental Law, and there is not now existing any condition which, if known
by the proper authorities, could result in any Environmental Complaint, and that
(g) the Mortgagor has, and will continue to have, all necessary licenses,
certificates and permits under the Environmental Laws relating to the Mortgagor
and its facilities, property, assets, and business, and the Mortgaged Premises
and the foregoing are in compliance with all Environmental Laws.
(h) there are no underground storage tanks on or under the Mortgaged
Premises.
(iii) If the Mortgagor receives any notice of (a) the presence of Hazardous
Materials on the Mortgaged Premises, (b) any violation of or noncompliance with
any Environmental Law, (c) the occurrence of a Hazardous Discharge on or about
any asset, business, facility or property of the Mortgagor or caused by the
Mortgagor, or (d) any Environmental Complaint affecting the Mortgagor or the
Mortgaged Premises or the Mortgagor's operations, assets, business, facilities
or properties, then the Mortgagor will give written notice of the foregoing to
the Mortgagee within ten (10) days of receipt thereof and shall (1) promptly
comply with the Environmental Laws and all other laws, regulations, resolutions
and ordinances to correct, contain, cleanup, remove, resolve or minimize the
impact of such Hazardous Materials, Environmental Discharge or Environmental
Complaint and (2) shall (A) post a bond from a surety or (B) cause a lending
institution to issue a letter of credit for the benefit of the Mortgagee, and to
any Governmental Authority requiring the same; the surety or the lending
institution, and the form, the substance and the amount of the bond or letter of
credit to be satisfactory to the Mortgagee and satisfactory to the applicable
Governmental Authority, or shall give to the Mortgagee and the applicable
Governmental Authority such other security satisfactory in form, substance and
amount to both the Mortgagee and the applicable Governmental Authority to assure
that the Mortgagor does correct, contain, cleanup, remove, resolve or minimize
the impact of such Hazardous Materials, Environmental Discharge or Environmental
Complaint.
(iv) Without limitation of the Mortgagee's rights under this Mortgage or
applicable law, the Mortgagee shall have the right, but not the obligation, to
exercise any of its rights to cure as provided in this Mortgage or to enter onto
the Mortgaged Premises or to take such other actions as it deems necessary or
advisable to correct, contain, cleanup, remove, resolve or minimize the impact
of, or otherwise deal with, any such Hazardous Material, Hazardous Discharge or
Environmental Complaint upon its receipt of any notice from any person or entity
or Governmental Authority, informing the Mortgagee of such Hazardous Material,
Hazardous Discharge or Environmental Complaint, which if true, could adversely
affect the Mortgagor or any part of the Mortgaged Premises or which, in the sole
opinion of the Mortgagee, could adversely affect its collateral security under
this Mortgage. All reasonable costs and expenses incurred and paid by the
Mortgagee in the exercise of any such rights shall be paid by the Mortgagor to
the Mortgagee upon demand, together with interest from the date that such sum is
advanced, payment made or expense incurred, to and including the date of
reimbursement, computed at the Default Rate. Any such sum paid by the Mortgagee
and the interest thereon shall be a lien on the Mortgaged Premises prior to any
claim, lien, right, title or interest in, to or on the Mortgaged Premises
attaching or accruing subsequent to the lien of this Mortgage, and shall be
deemed to be secured by this Mortgage and evidenced by the Note.
(v) Upon written request, the Mortgagor shall provide to the Mortgagee the
following information pertaining to all operations conducted in or on the
Mortgaged Premises:
(a) copies of all licenses, certificates and permits under the
Environmental Laws;
(b) material safety data sheets and maps, diagrams and site plans showing
the location of all storage areas and storage tanks for all Hazardous Materials
or other chemicals in, used at, manufactured at, brought to or stored at the
Mortgaged Premises;
(c) copies of all materials filed with any Governmental Authority;
(d) a description of the operations and processes of the Mortgagor; and
(e) any other information which the Mortgagee may reasonably require.
(vi) Upon reasonable notice to the Mortgagor, the Mortgagee, its officers,
employees, agents and contractors, may enter the Mortgaged Premises to inspect
it and to conduct, complete and take such tests, samples, analyses and other
processes (hereinafter referred to as an "Environmental Survey") as the
Mortgagee shall require to determine the Mortgagor's compliance with this
Paragraph and the Environmental Laws (but not more than once during the term
unless Mortgagee reasonably believes there has been a Hazardous Discharge or an
Event of Default has occurred). The costs, expenses and fees of the Mortgagee of
such entry, inspection, tests, samples, analyses and processes shall be paid and
reimbursed by the Mortgagor upon demand by the Mortgagee. Any such sum paid by
the Mortgagee, with the interest thereon at the rate provided to be paid on the
indebtedness secured by this Mortgage, shall be a lien on the Mortgaged Premises
prior to any claim, lien, right, title or interest in, to or on the Mortgaged
Premises attaching or accruing subsequent to the lien of this Mortgage, and
shall be deemed to be secured by this Mortgage and evidenced by the Note.
(vii) In addition to those Events of Default specified in this Mortgage,
the occurrence of any of the following events shall constitute a default under
this Mortgage, entitling the Mortgagee to all rights and remedies provided
therefor:
(a) if any Governmental Authority asserts or creates a lien upon any or all
of the Mortgaged Premises by reason of the presence of Hazardous Materials or
the occurrence of a Hazardous Discharge or Environmental Complaint or otherwise,
and the Mortgagor does not, within the earlier of sixty (60) days after the
recording thereof or prior to the institution by such Governmental Authority of
any steps to foreclose such lien, cause such lien to be discharged of record; or
(b) if any Governmental Authority asserts a claim against the Mortgagor,
the Mortgaged Premises or the Mortgagee for damages or cleanup or remedial costs
related to any Hazardous Materials or any Hazardous Discharge or any
Environmental Complaint; provided, however, such claim shall not constitute a
default if, within fifteen (15) business days of the Mortgagor's receipt of
notice of the foregoing:
(1) the Mortgagor can prove to the Mortgagee's reasonable satisfaction that
the Mortgagor has commenced and is diligently pursuing either: (A) a cure,
remedy or correction of the event which constitutes the basis for the claim, and
is continuing
diligently to pursue such cure or correction to completion, in strict compliance
with the Environmental Laws or Environmental Complaint, as applicable, or (B)
proceedings for injunction, a restraining order or other appropriate emergency
relief to prevent such Governmental Authority from asserting such claim, which
relief is granted within thirty (30) days of the occurrence giving rise to the
claim and the injunction, order or emergency relief is not thereafter dissolved
or reversed on appeal; and
(2) in either of the foregoing events, the Mortgagor shall (A) give such
surety or other security, which may be required by and satisfactory to both the
Governmental Authority asserting the claim and to the Title Company, to secure
the proper and complete cure or correction of the event which constitutes the
basis for the claim or, (B) at the Mortgagee's request if no such bond or
security has been given, the Mortgagor shall post a bond from a surety or a
letter of credit issued by a lending institution, with the Mortgagee, the surety
or the lending institution, and the form, substance and amount of the bond or
letter of credit to be reasonably satisfactory to the Mortgagee and to the Title
Company, or shall give to the Mortgagee and the Title Company such other
security satisfactory in form, substance and amount to the Mortgagee and to the
Title Company, to secure the payment for all of the work, labor and services
required to effect a proper and complete cure or correction of the condition
which constitutes the basis for the claim.
(viii) The Mortgagor covenants and agrees, at its sole cost and expense, to
indemnify, protect, and save the Mortgagee harmless against and from any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, proceedings, costs, disbursements or
expenses of any kind or of any nature whatsoever (including, without limitation,
reasonable attorneys' and experts' fees and disbursements) which may at any time
be imposed upon, incurred by or asserted or awarded against the Mortgagee and
arising from or out of:
(a) the Mortgagor's failure to perform and comply with this Subsection, or
(b) any Hazardous Material, any Hazardous Discharge, any Environmental
Complaint, or any Environmental Law applicable to the Mortgagor, its operations,
business, assets, property or facilities, or the Mortgaged Premises, or
(c) any action against the Mortgagor under this indemnity.
(ix) Mortgagor and Suprema Specialties West, Inc. (hereinafter referred to
as "Guarantor") have, simultaneously with the execution of this Mortgage,
executed and delivered to Mortgagee that certain Hazardous Material Guaranty and
Indemnification Agreement. The provisions of the Hazardous Material Guaranty and
Indemnification Agreement are intended to supplement and not replace the
provisions of this Section 20 of the Mortgage. In the event there is a conflict
between the terms of the Hazardous Material Guaranty and Indemnification
Agreement and this Mortgage, the terms of the Hazardous Material Guaranty and
Indemnification Agreement will govern, provided those provisions are broader.
Section 21. Advice of Counsel. Mortgagor acknowledges it has thoroughly
read and reviewed the terms and provisions of this Mortgage and the other Loan
Documents and is familiar with the same, that the terms and provisions contained
herein are clearly understood by it and have been fully and unconditionally
consented to by it, and that Mortgagor has had full benefit and advice of legal
counsel of its own selection or the opportunity to obtain the benefit and advice
of counsel of its own selection, in regard to understanding the terms, meaning
and effect
of this Mortgage and the other Loan Documents, and that this Mortgage and the
other Loan Documents have been entered into by Mortgagor freely, voluntarily,
with full knowledge, and without duress, and that in executing this Mortgage and
the other Loan Documents, Mortgagor is not relying on any representations or
statements either written or oral, express or implied, made to Mortgagor by
Mortgagee or any other person, and that the consideration received by Mortgagor
hereunder has been actual and adequate.
Section 22. Financial Information and Compliance Certificates. Mortgagor
hereby agrees that, so long as the Loan remains outstanding and unpaid, or any
other amount is owing to the Mortgagee hereunder, the Mortgagor will, and will
cause any Subsidiaries, the Guarantor and any Subsidiary of the Guarantor (each
sometimes referred to herein as a "Specified Person") as applicable to:
(i) as soon as available, but in any event within ninety (90) days after
the last day of each of its fiscal year ends, its 10-K report of the Mortgagor
and its subsidiaries as at the last day of the fiscal year and statements of
income and retained earnings and cash flows for such fiscal year each prepared
in accordance with generally accepted accounting principles ("GAAP") and
certified by a firm of independent certified public accountants satisfactory to
the Mortgagee, together with management prepared consolidated and consolidating
balance sheets. Mortgagor shall provide an itemized statement of capitalized
expenses, including, but not limited to, slotting fees, marketing service
agreements and the retail licensing agreement, which shall be broken out on the
management balance sheet, and any expenses related thereto shall be itemized on
the management income statement. Mortgagor shall also provide a breakdown of
selling, general and administrative expenses.
(ii) as soon as available, but in any event within sixty (60) days after
the close of each of the first three (3) quarters of each fiscal year, its 10-Q
report and management prepared consolidated and consolidating balance sheets,
statements of income and retained earnings and cash flows of the Mortgagor and
its subsidiaries as of the last day of and for such quarter and for the period
of the fiscal year ended as of the close of the particular quarter, all such
quarterly statements to be in reasonable detail, and certified by the chief
financial or accounting officer of the Mortgagor as having been prepared in
accordance with GAAP (subject to year-end adjustments). Mortgagor shall provide
an itemized statement of capitalized expenses, including, but not limited to,
slotting fees, marketing service agreements and the retail licensing agreement,
which shall be broken out on the prepared balance sheet, and any expenses
related thereto shall be itemized on the prepared income statement. Mortgagor
shall also provide a breakdown of selling, general and administrative expenses.
(iii) as soon as available, but in any event within thirty (30) days after
the end of each month, internally prepared profit and loss statements for each
such month in reasonable detail and certified by the chief financial or
accounting officer of the Mortgagor as having been prepared in accordance with
GAAP (subject to year-end adjustments). For the fiscal year-end and each
quarter-end of the Mortgagor, such internally prepared statements the shall not
be required.
(iv) at the same time as it delivers the financial statements called for by
subparagraphs (i) and (ii), the Mortgagor shall deliver a certificate of the
chief financial or accounting officer of the Mortgagor evidencing a computation
of compliance with the financial covenants referred to in Section 23;
(v) from time to time as requested by the Mortgagee, but no more often than
twice a year, provide the Mortgagee with a written acknowledgment, in form and
substance satisfactory
to the Mortgagee, from the Mortgagor's and the Guarantor's accountant
acknowledging that the Mortgagee is relying on the accountant's professional
accounting services to the Mortgagor and Guarantor, and the Mortgagor's and
Guarantor's knowledge of the Mortgagee's reliance;
(vi) within ninety (90) days of the fiscal year end of the Mortgagor,
furnish annual projections for the next succeeding Fiscal Year in a form
reasonably acceptable to the Mortgagee;
(vii) furnish such other reports and information as the Mortgagee may
reasonably require; and
(viii) Prior to the acquisition of the whey facility, the Mortgagor's
quarterly financial statements for the period ending March 31, 1996, prepared on
a review basis by BDO ▇▇▇▇▇▇▇, showing substantial compliance with projections.
Section 23. Financial Covenants. The Mortgagor hereby agrees that, so long
as the Note remains outstanding and unpaid, or any other amount is owing to the
Mortgagee hereunder, the Mortgagor shall comply with all financial covenants set
forth in Section 10.14 of that certain Revolving Loan, Guaranty and Security
Agreement dated February 15, 1994 by and among Mortgagor, as Borrower, Suprema
Specialties West, Inc., as Guarantor and Mortgagee, as amended, as if same were
fully set forth herein.
ARTICLE II. THE MORTGAGOR SHALL BE IN DEFAULT OF THIS MORTGAGE UPON THE
OCCURRENCE OF ANY OF THE FOLLOWING EVENTS (ANY OF WHICH MAY BE REFERRED TO AS AN
"EVENT OF DEFAULT"):
Section 1. Nonpayment. The Mortgagor shall fail to make when due any
payment of principal, interest or other monies as provided in the Note or this
Mortgage within five (5) days after same is due and payable.
Section 2. Breach of Covenants. The Mortgagor shall have failed to perform
any of the terms, covenants, conditions or undertakings contained in this
Mortgage or the Note, other than the nonpayment of money, and such default shall
have remained uncured for the applicable grace periods, if any, provided for
herein or therein.
Section 3. Representations and Warranties. In the event that any
representation or warranty made by the Mortgagor in this Mortgage or the Note or
in any other loan document used in connection herewith shall prove to be false
or misleading in any substantial and material respect on the date as of which
made.
Section 4. Bankruptcy. The Mortgagor shall have applied for or consented to
the appointment of a receiver, custodian, trustee or liquidator of all or a
substantial part of the Mortgagor's assets; or shall generally not be paying the
Mortgagor's debts as they become due; or shall have admitted in writing the
inability to pay the Mortgagor's debts as they mature; or shall have made a
general assignment for the benefit of creditors; or shall have filed a petition
or an answer seeking an arrangement with creditors; or shall have taken
advantage of any insolvency law; or shall have submitted an answer admitting the
material allegations of a petition in any bankruptcy or insolvency proceeding;
or an order, judgment or decree shall have been entered, without the
application, the approval or consent of the Mortgagor by any Court of competent
jurisdiction appointing a receiver, custodian, trustee or liquidator of the
Mortgagor, or a substantial part of the Mortgagor's assets; or a petition in
bankruptcy shall have been filed by or
against Mortgagor; or if any Order for Relief shall have been entered under the
Federal Bankruptcy Code.
Section 5. Other Foreclosures. In the event that proceedings shall have
been instituted for foreclosure or collection of any mortgage, judgment, or lien
prior, equal to or subordinate to the lien of this Mortgage, affecting the
Mortgaged Premises, and same is not discharged within thirty (30) days thereof.
Section 6. Judgments. In the event one or more final judgments, decrees, or
orders for the payment of money in excess of Fifty Thousand Dollars ($50,000.00)
in the aggregate shall be rendered against the Mortgagor and such judgments,
decrees or orders shall continue unsatisfied and in effect for a period of
thirty (30) consecutive days without being vacated, discharged, satisfied, or
stayed or bonded pending appeal.
Section 7. Other Debt. In the event of an Event of Default by the Mortgagor
in any of the terms or conditions of an Event of Default any agreement covering
the payment of borrowed money (other than trade payables) from any Person
including, but not limited to, the Revolving Loan, Guaranty and Security
Agreement dated February 15, 1994 by and among Mortgagor, as Borrower, Suprema
Specialties West, Inc., as Guarantor and Mortgagee, as amended, or any loan
documents executed in connection therewith, if such a default would permit the
holder of the debt instrument to accelerate the payment of the debt,
irrespective of whether the default is waived or not waived by the holder of the
debt instrument.
Section 8. Default Under Other Loan Documents. In the event of a default or
Event of Default under any other Loan Document.
ARTICLE III. IF ANY EVENT OF DEFAULT SHALL HAVE OCCURRED AND IS CONTINUING
ON THE PART OF THE MORTGAGOR, THE MORTGAGEE MAY TAKE ANY OR ALL OF THE FOLLOWING
ACTIONS, AT THE SAME OR AT DIFFERENT TIMES:
Section 1. Acceleration. The Mortgagee may declare the entire amount of
unpaid principal, together with all accrued and unpaid interest and other moneys
due under this Mortgage, the Note and the other Loan Documents immediately due
and payable, and accordingly accelerate payment thereof notwithstanding contrary
terms of payment stated therein, without presentment, demand or notice of any
kind, all of which are expressly waived, notwithstanding anything to the
contrary contained in the Mortgage and/or the Note.
Section 2. Possession. The Mortgagee may enter upon and take possession of
the Mortgaged Premises; lease and let the said Mortgaged Premises; receive all
the rents, income, issues and profits thereof which are overdue, due or to
become due; and apply the same, after payment of all necessary charges and
expenses, on account of the amounts hereby secured. The Mortgagee is given and
granted full power and authority to do any act or thing which the Mortgagor or
the successors or assigns of the Mortgagor who may then own the Mortgaged
Premises might or could do in connection with the management and operation of
the Mortgaged Premises. This covenant becomes effective either with or without
any action brought to foreclose this Mortgage and without applying at any time
for a receiver of such rents. Should said rents or any part thereof be assigned
without the consent of the holder of this Mortgage, then this Mortgage shall at
the option of the holder hereof become due and payable immediately, anything
herein contained to the contrary notwithstanding.
Section 3. Foreclosure. The Mortgagee may institute an action of mortgage
foreclosure or
take other action as the law may allow, at law or in equity, for the enforcement
of this Mortgage, and proceed thereon to final judgment and execution of the
entire unpaid balance of the Note including costs of suit, interest and
reasonable attorney's fees. In case of any sale of the Mortgaged Premises by
virtue of judicial proceedings, the Mortgaged Premises may be sold in one parcel
and as an entirety or in such parcels, manner or order as the Mortgagee in its
sole discretion may elect. The failure to make any tenants parties defendant to
a foreclosure proceeding and to foreclose their rights will not be asserted by
the Mortgagor as a defense in any proceeding instituted by the Mortgagee to
collect the obligations secured hereby or any deficiency remaining unpaid after
the foreclosure sale of the Mortgaged Premises.
Section 4. Appointment of Receiver. The Mortgagee may have a receiver of
the rents, income, issues and profits of the Mortgaged Premises appointed
without the necessity of proving either the depreciation or the inadequacy of
the value of the Security or the insolvency of the Mortgagor or any Person who
may be legally or equitably liable to pay moneys secured hereby, and the
Mortgagor and each such Person waives such proof and consents to the appointment
of a receiver.
Section 5. Fair Rental Payments. If the Mortgagor or any subsequent owner
is occupying the Mortgaged Premises or any part thereof, it is hereby agreed
that the said occupants shall pay such reasonable rental monthly (to be applied
on account of the unpaid indebtedness) in advance as the Mortgagee shall demand
for the Mortgaged Premises or the part so occupied, and for the use of personal
property covered by this Mortgage or any chattel mortgage.
Section 6. Excess Monies. The Mortgagee may apply on account of the unpaid
indebtedness evidenced by the Note (including any unpaid accrued interest) owed
to the Mortgagee after a foreclosure sale of the Mortgaged Premises, whether or
not a deficiency action shall have been instituted, any unexpended monies still
retained by the Mortgagee that were paid by Mortgagor to the Mortgagee (i) for
the payment of, or as security for the payment of taxes, assessments, municipal
or governmental rates, charges, impositions, liens, water or sewer rents, or
insurance premiums, if any, or (ii) in order to secure the performance of some
act by the Mortgagor.
Section 7. Remedies at Law or Equity. The Mortgagee may take any of the
remedies otherwise available to it as a matter of law or equity.
ARTICLE IV. MISCELLANEOUS:
Section 1. Cumulative Rights. The rights and remedies herein expressed to
be vested in or conferred upon the Mortgagee shall be cumulative and shall be in
addition to and not in substitution for or in derogation of the rights and
remedies conferred by any applicable law. The acceptance by the Mortgagee of any
payments hereunder after the occurrence of an Event of Default or the failure,
at any one or more times, of the Mortgagee to assert the right to declare the
principal indebtedness due or the granting of any extension or extensions of
time of payment of the Note either to the maker or to any other Person, or
taking of other or additional security for the payment thereof, or releasing any
security, or changing any of the terms of this Mortgage, the Note, the other
Loan Documents, or any other obligation accompanying this Mortgage, or waiver of
or failure to exercise any right under any covenant or stipulation herein
contained shall not in any way affect this Mortgage nor the rights of the
Mortgagee hereunder nor operate as a release from any personal liability upon
the Note or other obligation accompanying this Mortgage, nor under any covenant
or stipulation therein contained, nor under any agreement assuming the payment
of said Note or obligation.
Section 2. Notices. Unless otherwise indicated differently, all notices,
payments, requests, reports, information or demands which any party hereto may
desire or may be required to give to any other party hereunder, shall be in
writing and shall be personally delivered or sent by facsimile, Federal Express
or other nationally recognized overnight delivery service providing a receipt
for delivery, or first-class certified or registered United States mail, postage
prepaid, return receipt requested, and sent to the party at its address
appearing below or such other address as any party shall hereafter inform the
other party hereto by written notice given as aforesaid:
If to the Mortgagor:
Suprema Specialties, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & Zunz, P.A.
c/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Mortgagee:
NatWest Bank N.A.
Legal Center
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President
With a copy to:
Windels, Marx, Davies & Ives
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All notices, payments, requests, reports, information or demands so given shall
be deemed effective upon receipt or, if mailed, upon receipt or the expiration
of the third day following the date of mailing, which ever occurs first, except
that any notice of change in address shall be effective only upon receipt by the
party to whom said notice is addressed. A failure to send the requisite copies
does not invalidate an otherwise properly sent notice to the Mortgagor and/or
the Mortgagee.
Section 3. Successors and Assigns. All of the terms, covenants, provisions
and conditions herein contained shall be for the benefit of, apply to, and bind
the successors and assigns of the Mortgagor and the Mortgagee, and are intended
and shall be held to be real covenants running with the land, and the term
"Mortgagor" shall also include any and all subsequent owners and successors in
title of the Mortgaged Premises.
Section 4. Gender. When such interpretation is appropriate, any word
denoting gender used herein shall include all persons, natural or artificial,
and words used in the singular shall include the plural.
Section 5. Waiver of Right of Redemption. The Mortgagor waives the right of
redemption on any property levied upon under a judgment obtained in proceedings
to collect the indebtedness hereby secured or in proceedings on this Mortgage,
and further waives and releases any and all benefits that may accrue to the
Mortgagor by virtue of any law relating to appraisement, stay of execution or
exemption of the Mortgaged Premises from levy or sale under execution, now or
hereafter in force. A foreclosure sale shall constitute a foreclosure sale of
all interest whatsoever of the Mortgagor in the Mortgaged Premises and the
Mortgagee shall, if it is the purchaser at the sale, hold the Mortgaged Premises
and any part thereof so purchased free of any equity of redemption by reason of
any circumstances whatsoever and not as collateral for any obligation.
Section 6. Severability. The provisions of this Mortgage are severable. In
the event of the unenforceability or invalidity of any one or more of the terms,
covenants, conditions, or provisions of this Mortgage under federal, state, or
other applicable law, such unenforceability or invalidity shall not render any
other of the terms, covenants, conditions, or provisions hereof unenforceable or
invalid. In the event any waiver by Mortgagor hereunder is prohibited by law,
including but not limited to the waiver of exemption from execution, such waiver
shall be and deemed to be deleted herefrom.
Section 7. WAIVER OF AUTOMATIC STAY. THE MORTGAGOR AGREES THAT, IN THE
EVENT THAT THE MORTGAGOR OR ANY OF THE PERSONS, PARTIES, OR ENTITIES
CONSTITUTING THE MORTGAGOR SHALL (I) FILE WITH ANY BANKRUPTCY COURT OF COMPETENT
JURISDICTION OR BE THE SUBJECT OF ANY PETITION UNDER THE BANKRUPTCY CODE; (II)
BE THE SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER THE BANKRUPTCY CODE; (III)
FILE OR BE THE SUBJECT OF ANY PETITION SEEKING ANY REORGANIZATION, ARRANGEMENT,
COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY
PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY,
INSOLVENCY, OR OTHER RELIEF FOR DEBTORS; (IV) HAVE SOUGHT OR CONSENTED TO OR
ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE, RECEIVER, CONSERVATOR, OR
LIQUIDATOR; OR (V) BE THE SUBJECT OF ANY ORDER, JUDGMENT, OR DECREE ENTERED BY
ANY COURT OF COMPETENT JURISDICTION APPROVING A PETITION FILED AGAINST SUCH
PARTY FOR ANY REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT,
LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL
OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR RELIEF FOR DEBTORS,
THE MORTGAGEE SHALL THEREUPON BE ENTITLED, AND THE MORTGAGOR IRREVOCABLY
CONSENTS TO, IMMEDIATE AND UNCONDITIONAL RELIEF FROM ANY AUTOMATIC STAY IMPOSED
BY SECTION 362 OF THE BANKRUPTCY CODE, OR OTHERWISE, ON OR AGAINST THE EXERCISE
OF THE RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO THE MORTGAGEE AS PROVIDED FOR
HEREIN, IN THE NOTE, OR IN ANY OTHER OF THE LOAN DOCUMENTS DELIVERED IN
CONNECTION HEREWITH AND AS OTHERWISE PROVIDED BY LAW, AND THE MORTGAGOR HEREBY
IRREVOCABLY WAIVES ANY RIGHT TO OBJECT TO SUCH RELIEF AND WILL NOT CONTEST ANY
MOTION BY THE MORTGAGEE SEEKING RELIEF FROM THE AUTOMATIC STAY AND THE MORTGAGOR
WILL COOPERATE WITH THE MORTGAGEE, IN ANY MANNER REQUESTED BY THE MORTGAGEE, IN
ITS EFFORTS TO OBTAIN RELIEF FROM ANY SUCH STAY OR OTHER PROHIBITION.
Section 8. WAIVER OF JURY TRIAL. THE MORTGAGOR HEREBY WAIVES ANY AND ALL
RIGHTS THAT IT MAY NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATE OF
AMERICA OR ANY STATE TO A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING EITHER
DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING BETWEEN THE MORTGAGEE OR ITS
SUCCESSORS AND ASSIGNS, OUT OF OR IN ANY WAY CONNECTED WITH THIS MORTGAGE, THE
NOTE AND THE OTHER LOAN DOCUMENTS. IT IS INTENDED THAT SAID WAIVER SHALL APPLY
TO ANY AND ALL DEFENSES, RIGHTS,
AND/OR COUNTERCLAIMS IN ANY ACTION OR PROCEEDING.
Section 9. SERVICE OF PROCESS. THE MORTGAGOR AGREES THAT SERVICE OF PROCESS
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING
OUT OF OR RELATED TO THIS MORTGAGE OR THE RELATIONSHIP ESTABLISHED HEREUNDER MAY
BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE MORTGAGOR AT THE ADDRESS SET FORTH HEREIN.
Section 10. Payment of Attorneys' Fees and Costs. If upon an Event of
Default: (i) this Mortgage or any Loan Document is placed in the hands of an
attorney for collection or enforcement or is collected or enforced through any
legal proceeding; (ii) an attorney is retained to represent Mortgagee in any
bankruptcy, reorganization, receivership, or other proceeding affecting
creditor's rights and involving a claim under this Mortgage or any of the Loan
Documents; (iii) an attorney is retained to protect or enforce the lien of the
Mortgage or any of the Loan Documents; or (iv) an attorney is retained to
represent Mortgagee in any other proceeding whatsoever in connection with this
Mortgage, any of the Loan Documents or any property subject thereto, then
Mortgagor shall pay to Mortgagee all reasonable attorneys' fees, costs, expenses
and disbursements incurred in connection therewith, in addition to all other
amounts due hereunder.
Section 11. Right of Set-Off. Upon the occurrence and during the
continuance of any Event of Default, the Mortgagee is hereby authorized at any
time and from time to time, without notice to the Mortgagor (any such notice
being expressly waived by the Mortgagor), to set-off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Mortgagee to or for the
credit or the account of the Mortgagor and relating to the Loan, the Mortgaged
Premises or the Loan Documents against any and all of the obligations of the
Mortgagor now or hereafter existing under this Mortgage, the Note or any other
Loan Document, irrespective of whether or not the Mortgagee shall have made any
demand under this Mortgage, the Note or such other Loan Document and although
such obligations may be unmatured. The Mortgagee agrees promptly to notify the
Mortgagor after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of the Mortgagee under this Section 11 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Mortgagee may have.
Section 12. Counterparts. This Mortgage may be executed in any number of
counterparts, each of which shall be deemed an original but such counterparts
shall together constitute but one and the same instrument.
Section 13. Performance. The Mortgagor shall perform and abide by the terms
and covenants herein and the terms and covenants in the Note, all of which are
made a part hereof as though set forth herein at length.
Section 14. Law Governing. All the terms, conditions and covenants
contained in this Mortgage shall be governed by and construed and interpreted in
accordance with the laws of the State of New Jersey.
Section 15. No Assignment. This Mortgage shall not be assigned by the
Mortgagor without the prior express written consent of the Mortgagee.
Section 16. Modifications in Writing. No provision of this Mortgage may be
waived, changed, amended, modified or discharged orally and no executory
agreement shall be effective to modify or discharge it in whole or in part,
unless it is in writing and signed by the party against whom enforcement of the
waiver, change, amendment, modification or discharge is sought. Any waiver by
the Mortgagee or modification of the terms hereof shall be effective only in the
specific instance and for the specific purpose for which given and,
notwithstanding anything to the contrary herein, all such waivers and
modifications may be given or withheld in the sole judgment of the Mortgagee.
Section 17. Consent by Mortgagee. If the Mortgagor shall request the
Mortgagee's consent or approval pursuant to any of the provisions of this
Mortgage or otherwise, and the Mortgagee shall fail or refuse to give, or shall
delay in giving, such consent or approval, the Mortgagor shall in no event
(other than upon the willful misconduct or bad faith of Mortgagee) make, or be
entitled to make, any claim for damages (nor shall the Mortgagor assert, or be
entitled to assert, any such claim by way of defense, set-off, or counterclaim)
based upon any claim or assertion by the Mortgagor that the Mortgagee
unreasonably withheld or delayed its consent or approval, and the Mortgagor
hereby waives any and all rights that it may have, from whatever source derived,
to make or assert any such claim. The Mortgagor's sole remedy for any such
failure, refusal, or delay shall be an action for a declaratory judgment,
specific performance, or injunction, and such remedies shall be available only
in those instances where the Mortgagee has expressly agreed in writing not to
unreasonably withhold or delay its consent or approval or where, as a matter of
law, the Mortgagee may not unreasonably withhold or delay the same.
Section 18. Joint and Several Liability. If the Mortgagor consists of more
than one Person, the obligations and liabilities of each such Person hereunder
shall be joint and several.
THE MORTGAGOR HEREBY DECLARES THAT THE MORTGAGOR HAS READ THIS MORTGAGE,
HAS RECEIVED A COMPLETELY FILLED IN COPY OF IT WITHOUT CHARGE THEREFOR AND HAS
SIGNED THIS MORTGAGE AS OF THE DATE AT THE TOP OF THE FIRST PAGE.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be duly
executed and delivered by its appropriate authorized corporate officers and its
corporate seal to be hereunto affixed and attested, pursuant to the resolution
of its Board of Directors, all on the day and year first above written.
ATTEST: SUPREMA SPECIALTIES, INC.
-------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Secretary President
SCHEDULE "A"
ATTACHED TO AND MADE A PART OF THAT
CERTAIN MORTGAGE BY AND BETWEEN
SUPREMA SPECIALTIES, INC.
AS MORTGAGOR, AND
NATWEST BANK N.A.
AS MORTGAGEE, DATED
MARCH 29, 1996
DESCRIPTION OF MORTGAGED PREMISES
STATE OF NEW JERSEY :
:ss:
COUNTY OF MIDDLESEX :
BE IT REMEMBERED, that on this 29th day of March, 1996, before me, the
subscriber, an officer duly authorized pursuant to N.J.S.A. 46:14-6 to take
acknowledgements for use in the State of New Jersey, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇▇, who I am satisfied is the person who executed the within Mortgage as
the President of Suprema Specialties, Inc., the corporation named therein, and I
having first known to him the contents thereof, he did thereupon acknowledge
that the said Mortgage made by the said corporation and delivered by him as such
officer, is the voluntary act and deed of said corporation, made by virtue of
authority from its Board of Directors, for the uses and purposes therein
expressed.
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.,
Attorney at law of the State of New Jersey
