EXHIBIT 10.5
This instrument was prepared by:
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Name
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Signature
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MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FILING
by and between
BLONDER TONGUE LABORATORIES, INC.,
a Delaware Corporation
("Mortgagor")
and
COMMERCE BANK, N.A.,
a National Banking Association
("Mortgagee")
Amount: $19,500,000
Dated: March 20, 2002
Premises: Township of Old Bridge
County of Middlesex
State of New Jersey
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MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FILING
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THIS MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING made the 20th day of
March, 2002, between BLONDER TONGUE LABORATORIES, INC., a Delaware corporation,
having its principal business office at an address at One Jake Brown Road, Old
Bridge, New Jersey 08857 ("Mortgagor"), and COMMERCE BANK, N.A., a National
Banking Association, having its principal business office at 1701 Route 70 East,
Cherry Hill, New Jersey 08034 ("Mortgagee").
W I T N E S S E T H
- - - - - - - - - -
A. Pursuant to a certain Loan and Security Agreement of even date herewith
between Mortgagor and Mortgagee (as same may be supplemented, restated,
superseded, amended or replaced from time to time, the "Loan Agreement"),
Mortgagor has executed and delivered to Mortgagee a certain Revolving Credit
Note bearing even date herewith in the principal amount of Seven Million Dollars
($7,000,000) (the "Revolving Credit Note"), a certain Term Loan A Note bearing
even date herewith in the principal amount of Nine Million Dollars ($9,000,000)
(the "Term Loan A Note") and a certain Term Loan B Note bearing even date
herewith in the principal amount of Three Million Five Hundred Thousand Dollars
($3,500,000) (the "Term Loan B Note" and together with the Revolving Credit Note
and the Term Loan A Note being collectively hereinafter referred to as, the
"Notes").
B. As a condition to Mortgagee making the loans to Mortgagor evidenced by
the Notes, Mortgagor has agreed to grant Mortgagee a mortgage on the Land (as
defined below).
C. Capitalized terms used without further definition herein shall have the
meaning set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of the indebtedness evidenced by the
Notes, and as security for:
(1) payment to Mortgagee of all Obligations;
(2) payment to Mortgagee of all future or additional advances which may be
made by Mortgagee to or for the account of Mortgagor, together with interest on
such advances (including, without limitation, all sums which Mortgagee may
advance under this Mortgage with respect to the Real Estate (as defined below)
to pay for taxes, assessments, maintenance charges, insurance premiums or costs
incurred for the protection of the Real Estate or the lien of this Mortgage, and
expenses incurred by Mortgagee by reason of default by Mortgagor under this
Mortgage); and
(3) performance of the undertakings and covenants contained in the Loan
Documents.
Mortgagor has granted, conveyed, bargained, sold, aliened, enfeoffed, released,
confirmed and mortgaged, and by these presents does hereby grant, convey,
bargain, sell, alien, enfeoff, release, confirm and mortgage unto Mortgagee all
that certain real estate situate in the Township of Old
Bridge, Middlesex County, State of New Jersey, more particularly described in
Exhibit "A" attached hereto and made a part hereof (the "Land");
TOGETHER WITH all of Mortgagor's right, title and interest now owned or
hereafter acquired in:
(1) all buildings and improvements now or hereafter situate upon the Land
(the "Improvements") (the Land and Improvements being hereinafter collectively
referred to as the "Real Estate");
(2) all present and future leases, subleases and other occupancy agreements
covering all or any portion of the Real Estate (which together with Mortgagor's
interest as landlord thereunder are herein collectively referred to herein as
the "Leases");
(3) all rents, issues and profits payable under the Leases and under any
future renewals, extensions, amendments or modifications thereof;
(4) all fixtures, appliances, machinery, equipment, furnishings and
furniture of any nature whatsoever, and other articles of personal property now
or hereafter owned by Mortgagor and (i) which now or at any time hereafter are
installed in, attached to or situated in or upon the Real Estate; (ii) used or
intended to be used in connection with the Real Estate, or in the operation or
maintenance of the Real Estate (including, without limitation, communications,
computer and security systems and the software system therefore); or (iii) the
plant or business situate thereon, whether or not the personal property is or
shall be affixed thereto, expressly including, but without limiting the
generality of the foregoing, all articles of personal property listed on Exhibit
"B" attached hereto and made part hereof;
(5) all building materials, fixtures, building machinery and building
equipment owned by Mortgagor and delivered on site to the Real Estate during the
course of, or in connection with, the construction of, or reconstruction of, or
remodeling of any Improvements from time to time during the term hereof;
(6) any and all tenements, hereditaments and appurtenances belonging to the
Real Estate or any part thereof, or in any way appertaining thereto, and all
streets, alleys, passages, ways, water courses, and all leasehold estates,
easements and covenants now existing or hereafter created for the benefit of
Mortgagor or any subsequent owner or tenant of the Real Estate over ground
adjoining the Real Estate and all rights to enforce the maintenance thereof, and
all other rights, liberties and privileges of whatsoever kind or character,
together with any after-acquired property interest in the Real Estate which
Mortgagor may at any time hereafter have or acquire, and all the estate, right,
title, interest, property, possession, claim and demand whatsoever, at law or in
equity, of Mortgagor in and to the Real Estate or any part thereof;
(7) To the extent assignable, all management agreements, service contracts,
license agreements, concession agreements, written or oral, relating to the use
and occupancy of the Real Estate now or hereafter existing and the reversions
and remainders, income, rents, issues and profits arising therefrom and all
deposits (including tenant security deposits) thereunder, and all rights and
benefits now or hereafter accruing to Mortgagor under any and all guarantees of
the
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obligations of any tenant, licensee, concessionaire or other occupant
thereunder, as any of the foregoing may be amended, extended, renewed or
modified from time to time;
(8) All reciprocal easement agreements, operating agreements, and similar
agreements however labeled or denominated affecting the Real Estate;
(9) All other documentation belonging to or in Mortgagor's possession now
or hereafter existing in connection with the use or operation of the Real Estate
including any plans and specifications pertaining to the Improvements, all
appraisals, engineering, environmental, soils, marketing and other reports and
studies relating to the Real Estate, all permits, licenses, and contract rights,
warranties, guarantees, tenant lists, correspondence with present or prospective
tenants or suppliers, advertising materials, and telephone exchange numbers as
identified in such advertising materials; and
(10) All proceeds of the conversion, voluntary or involuntary, of any of
the foregoing into cash or liquidated claims, including without limitation,
proceeds of insurance and condemnation awards.
All of the above-mentioned Leases, fixtures, machinery, furniture, equipment,
tenements, hereditaments and appurtenances, agreements and other documents, and
other property interests are sometimes collectively referred to herein as the
"Mortgaged Property".
TO HAVE AND TO HOLD the Mortgaged Property hereby conveyed or mentioned and
intended so to be, unto Mortgagee, to its own use forever.
PROVIDED ALWAYS, this instrument is upon the express condition that, upon
payment in full of all Obligations and termination of the Revolving Credit, then
this Mortgage and the estate hereby granted shall cease and become void.
MORTGAGOR REPRESENTS, COVENANTS AND WARRANTS to and with Mortgagee that
until the Obligations are fully repaid and the Revolving Credit is terminated:
1. Payment and Performance. Mortgagor shall pay to Mortgagee all
Obligations, in accordance with the terms of the Loan Documents. Mortgagor shall
perform and comply with all the agreements, conditions, covenants, provisions
and stipulations of this Mortgage and the other Loan Documents to which it is a
party. Mortgagor shall timely perform all of its obligations and duties as
landlord under any Leases of any portion of the Mortgaged Property now or
hereafter in effect.
2. Warranty of Title. Mortgagor warrants to Mortgagee that Mortgagor
possesses good and marketable unencumbered fee simple title to the Mortgaged
Property, except for those title exceptions listed in the lender's title
insurance policy approved by and issued to Mortgagee insuring the priority of
the lien of this Mortgage.
3. Maintenance of Mortgaged Property. Mortgagor shall keep and maintain the
Mortgaged Property and the abutting sidewalks and curbs in good order and
condition (ordinary wear and tear excepted) in compliance with all applicable
laws and in a rentable and tenantable
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state of repair, and will make, as and when necessary, all repairs, renewals and
replacements, structural and nonstructural, exterior and interior, ordinary and
extraordinary, foreseen and unforeseen. Mortgagor shall abstain from and shall
not permit the commission of waste in or about the Mortgaged Property, shall not
remove or demolish any portion of the Improvements, or, other than in the
ordinary course of business, any machinery, equipment or other personal property
located thereon or alter the structural character or exterior appearance of any
Improvements, without the prior written consent of Mortgagee. Mortgagor shall
not permit the Mortgaged Property to become deserted or abandoned. Mortgagor
shall operate the Mortgaged Property as it is currently being operated, and
Mortgagor shall not change the use of the Mortgaged Property from its current
use without first obtaining the prior written consent of Mortgagee.
4. Insurance.
(i) Mortgagor shall provide and maintain insurance coverage in
accordance with the terms of the Loan Agreement.
(b) Reserved.
(c) If the insurance, or any part thereof, shall expire, or be
canceled, or become void or voidable by reason of Mortgagor's breach of any
condition thereof, or if Mortgagee determines that such coverage is
unsatisfactory by reason of the failure or impairment of the capital of any
company in which the insurance may then be carried or the lowering of such
insurance carrier's rating from its rating on the date hereof, or if for any
reason whatever the insurance shall, in Mortgagee's reasonable discretion, be
unsatisfactory to Mortgagee, Mortgagor shall place new insurance on the
Mortgaged Property, reasonably satisfactory to Mortgagee.
(d) In the event of loss, Mortgagor will give prompt notice thereof to
Mortgagee, and Mortgagee may make proof of loss if not made promptly by
Mortgagor; provided, however, that any adjustment of a proof of loss shall
require the prior written consent of Mortgagee. Such policies of insurance and
all renewals thereof are hereby assigned to Mortgagee as additional security for
payment of the Obligations and Mortgagor hereby agrees that after an Event of
Default any values available thereunder upon cancellation or termination of any
of said policies or renewals, whether in the form of return of premiums or
otherwise, shall be payable to Mortgagee as assignee thereof. If Mortgagee
becomes the owner of the Mortgaged Property or any part thereof by foreclosure
or otherwise, such policies, including all right, title and interest of
Mortgagor thereunder, shall become the absolute property of Mortgagee.
(e) Mortgagee shall retain and apply the proceeds of any such
insurance to reduction of the indebtedness secured hereby, or to restoration or
repair of the property damaged, in accordance with the terms of the Loan
Agreement. Mortgagee's application of insurance proceeds to reduction of the
indebtedness secured by this Mortgage shall not excuse or modify Mortgagor's
obligation to continue to pay the installments of interest and/or principal
required under the Notes unless the amount of such insurance proceeds received
by Mortgagee is sufficient to repay in full all interest, principal and all
other sums required to be paid to Mortgagee under the Notes and this Mortgage.
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5. Taxes and Other Charges.
(a) Mortgagor shall pay when due and payable and prior to the time
interest, penalties or additions are due thereon, without any deduction,
defalcation or abatement, all real estate taxes, municipal assessments and
liens, water and sewer rents, and other governmental levies and all other
charges or claims of every nature and kind which may be assessed, levied,
imposed, suffered, placed or filed at any time against Mortgagor, the Mortgaged
Property or any part thereof or against the interest of Mortgagee therein, or
which by any present or future law may have priority over the indebtedness
secured hereby either in lien or in distribution out of the proceeds of any
judicial or other sale (collectively "Taxes"); and upon request by Mortgagee,
Mortgagor shall produce to Mortgagee, official receipts for the payment of the
Taxes; provided, however, that if, pursuant to this Mortgage, Mortgagor shall
have deposited with Mortgagee before the due date thereof sums sufficient to pay
any Taxes, and Mortgagor is not otherwise in default under the Loan Documents,
the Taxes shall be paid by Mortgagee. Mortgagor will not apply for or claim any
deduction, by reason of this Mortgage, from the taxable value of all or any part
of the Mortgaged Property. No credit shall be claimed or allowed on the interest
payable on the Notes because of any Taxes paid.
(b) Mortgagor shall procure for Mortgagee, at Mortgagor's expense, a
real estate tax reporting service throughout the term of this Mortgage, and if
Mortgagor fails to do so, Mortgagee may obtain such service directly and
Mortgagor shall, upon demand, reimburse Mortgagee for the cost of such service.
6. Installments for Taxes and Other Charges. Without limiting the effect of
Paragraphs 4 and 5, while an Event of Default exists, upon Mortgagee's request,
Mortgagor shall pay to Mortgagee, monthly with the monthly installments of
interest or principal and interest, an amount equal to one-twelfth (1/12) of the
annual Taxes ("Escrow Items"). On demand by Mortgagee from time to time,
Mortgagor shall pay to Mortgagee any additional sums necessary to pay the Escrow
Items, all as estimated by Mortgagee. The amounts paid by Mortgagor shall be
security for the Escrow Items and shall be used in payment thereof if Mortgagor
is not otherwise in default under the Loan Documents. No amount so paid shall be
deemed to be trust funds but may be commingled with general funds of Mortgagee,
and no interest shall be payable thereon. If, pursuant to the Loan Documents,
the entire unpaid principal debt secured hereby becomes due and payable,
Mortgagee shall have the right, at its election, to apply any amount of Escrow
Items held by Mortgagee against the entire indebtedness secured hereby. At
Mortgagee's option, Mortgagee from time to time may waive, and after any such
waiver may reinstate, the provisions of this Paragraph requiring the monthly
payments of Escrow Items.
7. Corporate Existence and Taxes. Reserved.
8. Documentary and Other Stamps. If at any time the United States, the
state in which the Mortgaged Property is located or any political subdivision
thereof, or any department or bureau of any of the foregoing shall require
documentary, revenue or other stamps or taxes on the Notes or this Mortgage,
Mortgagor on demand shall pay for them with any interest or penalties payable
thereon.
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9. Other Taxes. If any law or ordinance now or hereafter imposes a tax
directly or indirectly on Mortgagee with respect to the Mortgaged Property
(other than an income tax, withholding tax or foreign taxes), the value of
Mortgagor's equity therein, or the indebtedness evidenced by the Notes and
secured by this Mortgage, Mortgagor shall have the right to contest such taxes
but shall promptly pay such tax during the pendency of such contest. If
Mortgagor fails to pay such tax or if Mortgagor is not lawfully permitted to pay
such tax, Mortgagee, at its election, shall have the right at any time to give
Mortgagor written notice declaring that the principal debt, with interest and
other appropriate charges, shall be due on a specified date not less than sixty
(60) days thereafter; provided, however, that such election shall be ineffective
if, prior to the specified date, Mortgagor lawfully pays the tax (in addition to
all other payments required hereunder) and agrees to pay the tax whenever it
becomes due and payable thereafter, which agreement shall then constitute a part
of this Mortgage.
10. Security Agreement. This Mortgage constitutes a security agreement
under the Uniform Commercial Code in effect in the state where the Real Estate
is situated and Mortgagor hereby grants to Mortgagee a security interest in all
that property (and the proceeds thereof) included in the Mortgaged Property
which might be deemed "personal property". Mortgagor shall deliver or file and
refile any financing statements, continuation statements, or other security
agreements Mortgagee may request from time to time to confirm the lien of this
Mortgage with respect to such property. Without limiting the foregoing,
Mortgagor hereby irrevocably appoints Mortgagee attorney in fact for Mortgagor
to deliver and file such instruments for and on behalf of Mortgagor. Mortgagor
shall not change its principal place of business or state of organization
without giving Mortgagee at least thirty (30) days prior written notice thereof,
which notice shall be accompanied by new financing statements in the same form
as the financing statements delivered to Mortgagee on the date hereof except for
the change of address. Mortgagor covenants to retain all of the Mortgaged
Property within the county in which the Real Estate is located, other than
equipment which may be removed in the ordinary course of business. Upon any
Event of Default under this Mortgage, Mortgagee shall have, in addition to any
other rights and remedies under the Loan Documents, all of the rights and
remedies granted to a secured party under the Uniform Commercial Code with
respect to all personal property. Mortgagor agrees that the personal property is
not and will not be used or acquired for personal, family or household purposes.
Upon an Event of Default under this Mortgage, (i) Mortgagee may require
Mortgagor to assemble the personal property or any portion thereof, at a place
designated by Mortgagee and reasonably convenient to both parties, and promptly
to deliver such personal property to Mortgagee, or an agent or representative
designated by it, (ii) Mortgagee, and its agents and representatives shall have
the right to enter upon the Mortgaged Property to exercise Mortgagee's rights
hereunder, and (iii) Mortgagee may sell, lease or otherwise dispose of the
personal property at public sale, with or without having the personal property
at the place of sale, and upon such terms and in such manner as Mortgagee may
determine. Mortgagee may be a purchaser at any such sale. Unless the personal
property is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, Mortgagee shall give Mortgagor ten (10)
days' prior written notice of the time and place of any public sale of the
personal property or other intended disposition thereof, and Mortgagor agrees
that such notice is reasonable. To the extent permitted by law, Mortgagor and
Mortgagee agree that the items set forth on the financing statements shall be
treated as part of the Real Estate and Improvements regardless of the fact that
such items are set forth in the financing statement. Such items are
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contained in the financing statements to create a security interest in favor of
Mortgagee in the event such items are determined to be personal property under
the law. Notwithstanding any release of any or all of that property included in
the Mortgaged Property which is deemed "real property", any 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 Mortgagor as are now or hereafter evidenced by the Notes.
11. Compliance with Law and Other Matters.
(a) Mortgagor shall comply with all material laws ordinances,
regulations and orders (collectively "Laws") of all federal, state, municipal
and other governmental authorities ("Governmental Authority") relating to the
Mortgaged Property and the use and occupancy of the Mortgaged Property.
(b) Mortgagor shall at all times maintain the legal existence of
Mortgagor and, if and to the extent required by applicable law to enable it to
own and operate the Mortgaged Property and to perform its obligations under the
Notes and this Mortgage, its qualification to do business in the state in which
the Mortgaged Property is located and, from time to time, file and record such
certificates or instruments as may be necessary or desirable to maintain such
existence and qualification and to permit the continued operation of its
business.
(c) Mortgagor will not initiate, join in or consent to any change in
any private restrictive covenant, zoning ordinance or other public or private
restrictions limiting or defining the uses which may be made of the Mortgaged
Property or any part thereof, without the prior written consent of Mortgagee,
which consent shall not be unreasonably withheld.
(d) Mortgagor will comply with all material restrictive covenants,
easement agreements and other recorded documents affecting the Mortgaged
Property. Mortgagor will not record or permit to be recorded any document,
instrument, agreement or other writing against the Mortgaged Property without
the prior written consent of Mortgagee, which consent shall not be unreasonably
withheld.
(e) Mortgagor shall pay when due all utility charges which are
incurred by Mortgagor, whether public or private and whether or not such charges
are or may become liens on the Mortgaged Property.
(f) Mortgagor agrees to subject to the lien of this Mortgage, in a
form reasonably satisfactory to Mortgagee, all additional strips, gores, or
parcels of land acquired by Mortgagor or any leasehold interest therein acquired
by Mortgagor, which adjoin the Mortgaged Property, and all additional interest
in and easements, rights and appurtenances to the Mortgaged Property above
described and in and to said strips, gores and parcels, and to execute and
deliver to Mortgagee such security agreements and extensions thereof as
Mortgagee reasonably may request and promptly to pay Mortgagee's reasonable
costs (including reasonable attorneys' fees) in connection therewith and the
title insurance premiums necessary to insure such additional land is encumbered
by this Mortgage as a first lien thereon.
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(g) While an Event of Default exists, Mortgagor agrees to deliver to
Mortgagee, within fifteen (15) days after written request by Mortgagee, any and
all plans, specifications, renderings, studies, analyses, reports or evaluations
in the possession of Mortgagor with respect to the physical condition of, or the
development or use of, the Mortgaged Property or any part thereof.
(h) Mortgagor shall not suffer or permit the Mortgaged Property to be
used by the public in such manner as might reasonably tend to impair Mortgagor's
title to the Mortgaged Property or any portion thereof, or in such manner as
might reasonably make possible a right or rights of adverse usage or adverse
possession by the public, as such, or of implied dedication of the Mortgaged
Property or any portion thereof.
12. Inspection. Reserved.
13. Declaration of No Set-Off. Reserved.
14. Required Notices. Mortgagor shall notify Mortgagee promptly of the
occurrence of any of the following:
(a) a fire or other casualty causing damage in excess of $100,000 to
the Mortgaged Property,
(b) receipt of notice of eminent domain proceedings or condemnation of
the Mortgaged Property,
(c) receipt of a material notice from any Governmental Authority
relating to the condition, structure, use or occupancy of the Mortgaged Property
or any real estate adjacent to the Mortgaged Property,
(d) receipt of any notice of default or threatened default, notice of
lease termination or similar material notice from a tenant under any of the
Leases, or
(e) a material change in the occupancy of the Mortgaged Property.
15. Condemnation.
(a) In the event of any condemnation or taking of any part of the
Mortgaged Property by eminent domain, alteration of the grade of any street, or
other injury to or decrease in the value of the Mortgaged Property by any public
or quasi-public authority or corporation, all proceeds (that is, the award or
agreed compensation for the damages sustained) allocable to Mortgagor, after
deducting therefrom all costs and expenses (regardless of the particular nature
thereof and whether incurred with or without suit) including attorneys' fees
incurred by Mortgagee in connection with the collection of such proceeds, shall
be applied as set forth in this Section 15. No settlement for the damages
sustained shall be made by Mortgagor without Mortgagee's prior written approval,
which approval shall not be unreasonably withheld. All the proceeds shall be
applied in the order and in the amounts that Mortgagee, in Mortgagee's sole
discretion, may elect, to the payment of principal (whether or not then due and
payable), interest
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or any other sums secured by this Mortgage. Notwithstanding the foregoing
sentence and provided that no Event of Default has occurred and is continuing,
Mortgagor may first apply such proceeds for the sole purpose of altering,
restoring or rebuilding any part of the Mortgaged Property which may have been
altered, damaged or destroyed as a result of the taking, alteration of grade or
other injury to the Mortgaged Property.
(b) If prior to the receipt of the proceeds by Mortgagee the Mortgaged
Property shall have been sold on foreclosure of this Mortgage, Mortgagee shall
have the right to receive the proceeds to the extent of:
(i) the full amount of all such proceeds if Mortgagee is the
successful purchaser at the foreclosure sale, or
(ii) if any one other than Mortgagee is the successful purchaser
at the foreclosure sale, any deficiency (as hereinafter defined) due to
Mortgagee in connection with the foreclosure sale, with interest thereon at the
rate set forth in the Notes, and reasonable counsel fees, costs and
disbursements incurred by Mortgagee in connection with collection of such
proceeds of condemnation and the establishment of such deficiency. For purposes
of this subparagraph (b) (ii), the word "deficiency" shall be deemed to mean the
difference between (A) the net sale proceeds actually received by Mortgagee as a
result of such foreclosure sale less any costs and expenses incurred by
Mortgagee in connection with enforcement of its rights under the Notes, this
Mortgage and the other Loan Documents and (B) the aggregate amount of the
Obligations.
(c) Mortgagee shall have the right to prosecute to final determination
or settlement an appeal or other appropriate proceedings in the name of
Mortgagee or Mortgagor, for which Mortgagee is hereby appointed irrevocably as
attorney-in-fact for Mortgagor, which appointment, being for security, is
irrevocable. In that event, the expenses of the proceedings, including
reasonable counsel fees, shall be paid first out of the proceeds, and only the
excess, if any, paid to Mortgagee shall be credited against the amounts due
under this Mortgage.
(d) Nothing herein shall limit the rights otherwise available to
Mortgagee, at law or in equity, including the right to intervene as a party to
any condemnation proceeding.
16. Completion of Construction. Mortgagor shall complete and timely pay for
any construction which is commenced at any time on the Mortgaged Property free
of any mechanics liens or other liens. All such construction shall comply with
all applicable Laws and shall be performed in a good and workmanlike manner.
Nothing contained in this Paragraph shall be deemed to waive any right Mortgagee
may have under the Loan Documents to approve construction on the Mortgaged
Property.
17. Leases.
(a) Mortgagor hereby represents that there are no leases or agreements
to lease all or any part of the Mortgaged Property now in effect except the
Leases, if any, expressly approved in writing by Mortgagee. Mortgagor agrees not
to enter into any Leases or agreements to lease all or any part of the Mortgaged
Property or to modify, amend, terminate or consent to
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the surrender of, or assign its interest in, any Leases or to permit the tenant
or subtenant thereunder to subordinate its Leases to any lien subordinate to
this Mortgage, without the prior written consent thereof by Mortgagee.
(b) Upon receipt by Mortgagor, from time to time, of any security
deposit, prepaid rent (other than prepaid rent for the next succeeding calendar
month), or similar payments by a tenant, subtenant, licensee or other user of
the Mortgaged Property, Mortgagor shall deposit such sum in a separate escrow
account with a national or state bank having banking offices in the state in
which the Mortgaged Property is located. Mortgagor shall promptly give Mortgagee
written notice of the name and address of the bank and the account number of the
escrow account. Mortgagor shall also give written authorization to such bank to
permit Mortgagee to receive any information requested by Mortgagee from the bank
as to the status and balance of such account. Said sums shall be held in trust
by Mortgagor and disbursed only upon the prior written approval of Mortgagee,
which approval shall not be unreasonably withheld. The prior written consent of
Mortgagee shall not be required when by law (or agreement approved by Mortgagee)
Mortgagor is required to return any of such sums to the party who deposited it
with Mortgagor. Mortgagor hereby assigns all of such bank accounts to Mortgagee
as collateral security for the Obligations and Mortgagor agrees that after an
Event of Default by Mortgagor under the Loan Documents, the sums in said bank
accounts shall, at the election of Mortgagee, be payable to Mortgagee as
assignee of such bank account; provided, however, that Mortgagee shall have no
liability for any prior misapplication of said sums by Mortgagor.
18. No Other Financing or Liens. Reserved.
19. No Transfer. Reserved.
20. Hazardous Materials. Reserved.
21. Right to Remedy Defaults.
(a) If Mortgagor should fail to pay corporate taxes, Taxes, sums due
under any Permitted Lien against the Mortgaged Property, or insurance premiums,
or any sums payable by Mortgagor pursuant to the Leases, or fail to make
necessary repairs to the Mortgaged Property, or permit waste to the Mortgaged
Property, shall otherwise fail to perform its obligations under this Mortgage,
Mortgagee, at its election, after giving Mortgagor three (3) business days'
notice of such failure (except in an emergency in which case no such notice
shall be required), shall have the right to make any payment or expenditure and
to take any action which Mortgagor should have made or taken, or which Mortgagee
deems advisable to protect the security of this Mortgage or the Mortgaged
Property, without prejudice to any of Mortgagee's rights or remedies available
hereunder or otherwise, at law or in equity. Such payment by Mortgagee shall not
release Mortgagor from Mortgagor's obligations or constitute a waiver of
Mortgagor's default under this Mortgage.
(b) Mortgagee in making any payment authorized by this Paragraph: (i)
relating to Taxes and corporate taxes, may do so according to any bill,
statement or estimate procured from the appropriate public office without
inquiry into the accuracy of such bill, statement or estimate or into the
validity of the Tax or claim thereof; or (ii) for the purchase,
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discharge, compromise or settlement of any other Lien, may do so without inquiry
as to the validity or amount of any claim for lien which may be asserted; or
(iii) for the payment of any sums to cure any default under the Leases, may do
so without inquiry as to the validity or amount of any claimed default
thereunder. In exercising its rights hereunder Mortgagee may, but need not, make
full or partial payments on any Lien, if any, and purchase, discharge,
compromise or settle any tax lien or other Lien or title or claim thereof, or
redeem from any tax sale or forfeiture effecting the Mortgaged Property or
contest any tax. Such payments will be deemed made by Mortgagee at Mortgagor's
request and Mortgagee shall be subrogated to any and all rights and liens held
by the owner or holder of any Lien, irrespective of whether such Lien is
released or satisfied.
(c) All such sums, as well as costs, advanced by Mortgagee pursuant to
this Mortgage shall be due immediately from Mortgagor to Mortgagee, shall be
secured by this Mortgage and the lien therefore shall relate back to the date of
this Mortgage, and such sums, as well as costs, shall bear interest at the
default rate specified by Term Loan B Note from the date of payment by Mortgagee
until the date of repayment to Mortgagee.
22. Events of Default. Each of the following shall constitute an "Event of
Default" under this Mortgage:
(a) Mortgagor's non-performance or non-compliance with any of the
other agreements, conditions, covenants, provisions or stipulations contained in
this Mortgage and the continuance of such default for thirty (30) days after the
occurrence thereof;
(b) The occurrence of an Event of Default under the Loan Agreement.
23. Remedies.
(a) Upon the occurrence of an Event of Default, Mortgagee may exercise
all rights and remedies under the Loan Agreement.
(b) Upon the occurrence of an Event of Default, or Mortgagor's failure
to pay the Obligations when such Obligations become due and payable because of
maturity or because of acceleration after the occurrence of an Event of Default,
then forthwith:
(i) Foreclosure. Mortgagee may institute an action of mortgage
foreclosure against the Mortgaged Property, or take such other action at law or
in equity for the enforcement of this Mortgage and realization on the mortgage
security or any other security herein or elsewhere provided for, as the law may
allow, and may proceed therein to final judgment and execution for the entire
unpaid balance of the Obligations, with interest at the rate set forth in the
Loan Agreement, together with all other sums due by Mortgagor in accordance with
the provisions of this Mortgage and the other Loan Documents, including all sums
which may have been loaned by Mortgagee to Mortgagor after the date of this
Mortgage, and all sums which may have been advanced by Mortgagee for Taxes,
payments on Liens, insurance premiums, utilities or repairs to the Mortgaged
Property and other sums which Mortgagee is permitted to advance pursuant to the
terms of this Mortgage, all costs of suit, together with interest at such rate
on any judgment obtained by Mortgagee from and after the date of any
11
sheriff or other judicial sale until actual payment is made of the full amount
due Mortgagee, and all Expenses.
(ii) Possession. Mortgagee may enter into possession of the
Mortgaged Property, with or without legal action, collect therefrom all rentals
(which term shall also include sums payable for use and occupation) and, after
deducting all costs of collection and administration expense, apply the net
rentals to any or all of the following in such order and amounts as Mortgagee,
in Mortgagee's sole discretion, may elect: the payment of any sums due under any
Lien, Taxes, insurance premiums and all other carrying charges, and to the
maintenance, repair or restoration of the Mortgaged Property, and on account and
in reduction of the principal or interest, or both, secured by this Mortgage; in
and for that purpose, Mortgagor hereby assigns to Mortgagee all rentals due and
to become due under the Leases or rights to use and occupation of the Mortgaged
Property hereafter created, as well as all rights and remedies provided in such
Leases or at law or in equity for the collection of the rentals. The taking of
possession and collections of rents by Mortgagee shall not be construed to be an
affirmation of any Leases or acceptance of attornment with respect to any Leases
of all or any portion of the Mortgaged Property. Mortgagee, in its discretion,
may, as attorney in fact or agent of Mortgagor, or in its own name as Mortgagee
and under the powers herein granted, hold, operate, manage and control the
Mortgaged Property and conduct the business, if any, thereof, either personally
or by its agents, and with full power to use such measures, legal or equitable,
as in its discretion or in the discretion of its successors or assigns may be
deemed proper or necessary to enforce the payment or security of the avails,
rents, issues, and profits of the Mortgaged Property, including actions for the
recovery of rent, actions in forcible detainer and actions in distress for rent,
and with full power: to cancel or terminate any Leases for any cause or on any
ground which would entitle Mortgagor to cancel the same; to elect to disaffirm
any Leases which are then subordinate to the lien of this Mortgage; to extend or
modify any then existing Leases and to make new Leases, which extensions,
modifications and new Leases may provide for terms to expire, or for options to
extend or renew terms to expire, beyond the maturity date of the indebtedness
hereunder and beyond the date of the issuance of a deed or deeds to a purchaser
or purchasers at a foreclosure sale, it being understood and agreed that any
such Leases, and the options or other such provisions to be contained therein,
shall be binding upon Mortgagor and all persons whose interests in the Mortgaged
Property are subject to the lien hereof and upon the purchaser or purchasers at
any foreclosure sale, notwithstanding any redemption from sale, discharge of the
Mortgage indebtedness, satisfaction of any foreclosure decree, or issuance of
any certificate of sale or deed to any purchaser; and to enter into any
management, leasing or brokerage agreements covering the Mortgaged Property.
(c) Mortgagee shall have the right, from time to time, to bring an
appropriate action to recover any Obligations without prejudice to the right of
Mortgagee thereafter to bring an action of mortgage foreclosure, or any other
action, for any Event of Default by Mortgagor existing at the time the earlier
action was commenced.
(d) Any real estate sold pursuant to any writ of execution issued on a
judgment obtained by virtue of this Mortgage, or pursuant to any other judicial
proceedings under the Mortgage, may be sold in one parcel, as an entirety, or in
such parcels, and in such manner or order as Mortgagee, in its sole discretion,
may elect.
12
(e) Reserved.
(f) Upon, or at any time after the filing of an action to foreclose
this Mortgage, the court in which such action is filed may, at the request of
Mortgagee, appoint a receiver of the Mortgaged Property. Such appointment may be
made either before or after sale, with notice to Mortgagor, without regard to
the solvency or insolvency of Mortgagor at the time of application for such
receiver and without regard to either the then value of the Mortgaged Property,
the adequacy or inadequacy of any remedy available at law, or the solvency or
insolvency of Mortgagor and any other person liable to pay such indebtedness,
and Mortgagee hereunder or any agent of Mortgagee may be appointed as such
receiver. Such receiver shall have the power to perform all of the acts
permitted Mortgagee pursuant to subparagraph (b) (ii) above and such other
powers which may be necessary or are customary in such cases for the protection,
possession, control, management and operation of the Mortgaged Property during
such period.
(g) Mortgagee may, at its sole option, disaffirm and cancel any Leases
which are subordinate to this Mortgage at any time before the expiration of
sixty (60) days after Mortgagee acquires the legal title to the Mortgaged
Property by sheriff's deed or any other transfer of legal title to the Mortgaged
Property pursuant to the exercise of a remedy hereunder or otherwise, even
though Mortgagee shall have enforced such Leases, collected rents thereunder or
taken any action that might be deemed by law to constitute an affirmance of the
Leases. Such disaffirmance shall be made by written notice addressed to the
applicable tenants at the Mortgaged Property or, at Mortgagee's option, such
other address of such tenants as may be provided in the Leases.
(h) Mortgagor, for itself and for all persons hereafter claiming
through or under it or who may at any time hereafter become holders of a Lien
junior to the lien of this Mortgage, hereby expressly waives and releases all
rights to direct the order in which any of the Mortgaged Property shall be sold
in the event of any sale or sales pursuant hereto and to have any of the
Mortgaged Property and/or any other property now or hereafter constituting
security for any of the Obligations marshalled upon any foreclosure of this
Mortgage or of any other security for any of said indebtedness.
(i) If Mortgagor or any party comprising the Mortgagor is an occupant
of part or all of the Mortgaged Property, they shall immediately upon any
acceleration after an Event of Default hereunder surrender the possession
thereof to Mortgagee and if they remain in possession, such possession shall be
as tenant at sufferance of Mortgagee, and Mortgagor agrees to pay monthly in
advance to Mortgagee such rent for the premises so occupied as Mortgagee may
reasonably demand, and in default of so doing Mortgagor or any party comprising
the Mortgagor may be dispossessed by summary proceedings or otherwise with or
without any action being brought to foreclose this Mortgage and without applying
for a receiver to collect the rents. In case of the appointment of a receiver of
rents and profits of the Mortgaged Property, the covenants of this Section may
be enforced by such receiver.
(j) Upon any sale made under or by virtue of this Paragraph 23,
Mortgagee may bid for and then acquire the Mortgaged Property or any part
thereof and in lieu of paying cash therefore may make settlement for the
purchase price by crediting upon the indebtedness of
13
the Mortgagor secured by this Mortgage the net sales price after deducting
therefrom the expenses of the sale and the costs of the action and any other
sums which the Mortgagee is authorized to deduct under this Mortgage.
(k) If Mortgagee shall have the right to foreclose this Mortgage,
Mortgagor authorizes Mortgagee at its option to foreclose this mortgage subject
to the rights of any tenants of the Mortgaged Property, and the failure to make
any such tenants parties defendant to any such foreclosure proceeding and to
foreclose their rights will not be asserted by Mortgagor as a defense to any
proceeding instituted by Mortgagee to collect the indebtedness secured hereby or
any deficiency remaining unpaid after the foreclosure sale of the Mortgaged
Property, it being expressly understood and agreed, however, that nothing herein
contained shall prevent Mortgagee from asserting in any proceeding disputing the
amount of the deficiency or the sufficiency of any bid at such foreclosure sale,
that any such tenancies adversely affect the value of the Mortgaged Property.
24. Rights and Remedies Cumulative.
(a) The rights and remedies of Mortgagee as provided in this Mortgage
and the other Loan Documents and in the warrants attached thereto or contained
therein shall be cumulative and concurrent; may be pursued separately,
successively or together against Mortgagor or against the Mortgaged Property, or
both, at the sole discretion of Mortgagee, and may be exercised as the need to
exercise them shall arise. The failure to exercise any such right or remedy
shall in no event be construed as a waiver or release thereof.
(b) Any failure by Mortgagee to insist upon strict performance by
Mortgagor of any of the provisions of this Mortgage or the other Loan Documents
shall not be deemed to be a waiver of any of the terms or provisions of the
Mortgage or the other Loan Documents, and Mortgagee shall have the right
thereafter to insist upon strict performance by Mortgagor of any and all of
them.
(c) Neither Mortgagor nor any other person now or hereafter obligated
for payment of all or any part of the sums now or hereafter secured by this
Mortgage shall be relieved or discharged of such obligation by reason of the
failure of Mortgagee to comply with any request of Mortgagor or of any other
person so obligated to take action to foreclose on this Mortgage or otherwise
enforce any provisions of this Mortgage or the other Loan Documents, or by
reason of the release, regardless of consideration, of all or any part of the
security held for the indebtedness secured by this Mortgage, or by reason of
consenting to the granting of any easements or recordation of restrictive
covenants affecting the Mortgaged Property or by reason of any agreement or
stipulation between any subsequent owner of the Mortgaged Property and Mortgagee
extending the time or amount of payment or modifying the terms of this Mortgage
or the other Loan Documents without first having obtained the consent of
Mortgagor or such other person; and in the latter event Mortgagor and all such
other persons shall continue to be liable to make payments according to the
terms of any such extension or modification agreement, unless expressly released
and discharged in writing by Mortgagee.
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(d) Mortgagee may release, regardless of consideration, any part of
the security held for the Obligations without, as to the remainder of the
security, in any way impairing or affecting the lien of this Mortgage or its
priority over any subordinate lien.
(e) For payment of the Obligations secured hereby Mortgagee may resort
to any other security therefore held by Mortgagee in such order and manner as
Mortgagee may elect.
(f) The receipt by Mortgagee of any sums from Mortgagor after the date
on which Mortgagee elects to accelerate the Obligations by reason of an Event of
Default hereunder shall not constitute a cure or waiver of such default or a
reinstatement of this Mortgage or the other Loan Documents unless Mortgagee
expressly agrees, by written notice to Mortgagor, that such payment shall be
accepted as a cure or waiver of the default.
25. Mortgagor's Waivers. Mortgagor hereby waives and releases:
(a) all procedural errors, defects and imperfections in any proceeding
instituted by Mortgagee under the Notes, this Mortgage or any of the other Loan
Documents;
(b) all benefit that might accrue to Mortgagor by virtue of any
present or future law, exempting the Mortgaged Property, or any part of the
proceeds arising from any sale thereof, from attachment, levy or sale on
execution, or providing for any stay of execution, exemption from civil process
or extension of time for payment; and
(c) unless specifically required herein, all notices of Mortgagor's
default or of Mortgagee's election to exercise, or Mortgagee's actual exercise
of, any option under the Leases, the Notes, this Mortgage or the other Loan
Documents.
26. Counsel Fees. Reserved.
27. Further Assurances. Mortgagor will execute and deliver such further
instruments and perform such further acts as may be reasonably requested by
Mortgagee from time to time to confirm the priority of the lien created by this
Mortgage on any property, rights or interest encumbered or intended to be
encumbered by the lien of this Mortgage or the other Loan Documents.
28. Future Advances. Without limiting any other provisions of this Mortgage
and pursuant to the provision of New Jersey statutes 46:9-8.1 and 9-8.2, this
Mortgage shall also secure additional loans and other future advances hereafter
made by Mortgagee to Mortgagor, or for the benefit of Mortgagor, but in no event
shall the total outstanding indebtedness secured hereby at any such time exceed
(a) twice the amount of the original principal indebtedness of the Notes plus
(b) all accrued and unpaid interest. Each such additional loans or future
advance shall be evidenced by a Notes or other evidence of indebtedness and
shall be automatically secured hereby without the necessity of the Notes or
other evidence of indebtedness identifying such additional loans or future
advance as part of the indebtedness secured by this Mortgage. Nothing herein
contained shall imply any obligation on the part of Mortgagee to make any such
additional loans or future advance(s).
15
29. Representations and Warranties. Mortgagor represents, warrants and
covenants to and with Mortgagee that:
(a) Reserved.
(b) Reserved.
(c) There are no pending or, to the best of Mortgagor's knowledge,
threatened proceedings or actions to revoke, invalidate, rescind, or modify the
zoning classification or status of the Mortgaged Property, or any building,
occupancy or other permits heretofore issued with respect thereto, or asserting
that such zoning or permits do not permit either the current or proposed use of
the Mortgaged Property.
(d) Reserved.
(e) There are no leases or other arrangements for occupancy of space
within the Mortgaged Property other than leases previously furnished to
Mortgagee.
(f) No condemnation by any governmental authority of any portion of
the Mortgaged Property or any roadways or other access ways abutting the
Mortgaged Property, has commenced or, to the best of Mortgagor's knowledge, is
contemplated.
(g) The Mortgaged Property has access to and adequate supply of water,
electricity, gas, storm and sanitary sewerage and other required public
utilities to serve the present and contemplated uses of the Mortgaged Property,
fire and police protection, and free means of appropriate vehicular and
pedestrian access between the Mortgaged Property and public highways; and none
of the foregoing will be delayed or impeded by virtue of any requirements under
any applicable laws including environmental protection laws; and that all of the
foregoing comply with all applicable laws including environmental protection
laws.
(h) The improvements located in the Mortgaged Property do not encroach
upon any building line, setback line, side yard line, or any recorded or visible
easement (or other easement of which Mortgagor has knowledge of or has reason to
believe may exist with respect to the Mortgaged Property) except as disclosed in
the title policy insuring the lien of this Mortgage.
(i) If any construction has occurred at the Mortgaged Property within
the last twelve (12) months, the construction has been completed substantially
in accordance with the applicable laws and governmental approvals and, all such
improvements are in good working order and are structurally sound and fit for
their current use.
(j) The Mortgaged Property is taxed separately without regard to any
other property, and for all purposes the Mortgaged Property may be mortgaged,
conveyed, and otherwise dealt with as an independent parcel.
(k) Reserved.
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(l) Mortgagor is not a "foreign person" within the meaning of Sections
1445 or 7701 of the Internal Revenue Code.
30. Severability and Savings Clauses. If any provision of this Mortgage is
held to be invalid or unenforceable by a Court of competent jurisdiction, the
other provisions of this Mortgage shall remain in full force and effect and
shall be liberally construed in favor of Mortgagee in order to effect the
remaining provisions of this Mortgage.
31. Commercial Loans. Mortgagor hereby stipulates and warrants that the
loans secured hereby are commercial loans, and that all of the proceeds of such
loans will be used solely to acquire or carry on a business or commercial
enterprise.
32. Notices.
(a) Any notices or consents required or permitted by this Mortgage
shall be in writing and shall be deemed given if delivered in person or if sent
by facsimile or by nationally recognized overnight courier, as follows, unless
such address is changed by written notice hereunder:
If to Mortgagee: Commerce Bank, N.A.
1001 Durham Avenue
South Plainfield, NJ 07080
Attention: Kurt J. Fuoti, Vice President
Telecopy No. (908) 756-7021
with copies to: Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, PA 19103
Attention: Steven M. Miller, Esquire
Phone No.: (215) 569-5500
Facsimile.: (215) 569-5522
If to Mortgagor.: Blonder Tongue Laboratories, Inc.
One Jake Brown Road
Old Bridge, NJ 08857
Attention: President
Telecopy No. (732) 679-4353
with copies to: Stradley, Ronon, Stevens & Young, LLP
2600 One Commerce Square
Philadelphia, PA 19103
Attention: Gary P. Scharmett, Esquire
Telecopy No. (215) 564-8120
17
(b) Any notice sent by Mortgagee or Mortgagor by any of the above
methods shall be deemed to be given when so received.
(c) Mortgagee shall by fully entitled to rely upon any facsimile
transmission or other writing purported to be sent by any Authorized Officer as
being genuine and authorized.
(d) Time of Essence. Time shall be of the essence of each provision of
this Mortgage of which time is an element.
33. Lost Notes. Reserved.
34. Covenant Running with the Land. Any act or agreement to be done or
performed by Mortgagor shall be construed as a covenant running with the land
and shall be binding upon Mortgagor and its successors and assigns as if they
had personally made such agreement.
35. Amendment. This Mortgage cannot be changed or amended except by
agreement in writing signed by the party against whom enforcement of the change
is sought.
36. Applicable Law. This mortgage and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of New Jersey,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
37. Financing Statement. This mortgage is effective as a financing
statement which is filed as a "fixture filing" pursuant to Section 9-502 (or any
other applicable section) of the Uniform Commercial Code from the date of
recordation of this Mortgage with respect to the following types of goods which
are or will be fixtures related to the Mortgaged Property:
Fixtures, equipment, appliances and furnishings and the items set
forth in the granting clauses of this Mortgage and on Exhibit "B"
hereto.
For the purpose of this Paragraph, Mortgagor is the Debtor, and Mortgagee is the
Secured Party and their addresses are as set forth in the recitals of this
Mortgage. The record owner of the REAL ESTATE is Mortgagor.
38. Definitions and Interpretation. Whenever used in this Mortgage, unless
the context clearly indicates a contrary intent:
(a) The word "Mortgagor" shall mean the person who executes this
Mortgage and any subsequent owner of the Mortgaged Property and its respective
heirs, executors, administrators, successors and assigns;
(b) The word "Mortgagee" shall mean the person specifically named
herein as "Mortgagee" or any subsequent holder of this mortgage;
18
(c) Reserved.
(d) The use of any gender shall include all genders;
(e) The singular number shall include the plural and the plural the
singular as the context may require.
(f) Reserved.
(g) The following phrase shall have the following meanings: (i)
"including" shall mean "including but not limited to," (ii) "provisions" shall
mean "provisions, terms, covenants and/or conditions," (iii) "lien" shall mean
"lien, charge, encumbrance, security interest, mortgage and/or deed of trust,"
(iv) "obligation" shall mean "obligation, duty, covenant and/or condition," (v)
"any of the Mortgaged Property" shall mean "the Mortgaged Property or any part
thereof or interest therein, and (vi) "Partnership" shall mean "partnership or
joint venture" and "partner" shall mean "partner or joint venturer."
(h) Any act which Mortgagee is permitted to perform under the Loan
Documents may be performed at any time and from time to time by Mortgagee or any
person or entity designated by Mortgagee.
(i) Any act which Mortgagor is required to perform under the Loan
Documents shall be performed at Mortgagor's sole cost and expense.
(j) Any act which is prohibited to Mortgagor under the Loan Documents
is also prohibited to all tenants or other occupants of any of the Real Estate
and the Mortgaged Property.
(k) Reserved.
(l) Reserved.
(m) The captions preceding the text of the Paragraphs or subparagraphs
of this Mortgage are inserted only for convenience of reference and shall not
constitute a part of this Mortgage, nor shall they in any way affect its
meaning, construction or effect.
(n) All Exhibits attached hereto are hereby incorporated by reference
into, and made a part of, this Mortgage.
(o) Reserved.
(p) This Mortgage may be executed in counterparts, each of which,
together with all counterparts, shall be deemed one Mortgage. This Mortgage
shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
(q) Reserved.
19
(r) Definitions contained in this Mortgage which identify documents,
including the Loan Documents, shall be deemed to include all amendments and
supplements to such documents from the date hereof, and all future amendments
and supplements thereto entered into from time to time to satisfy the
requirements of this Mortgage or otherwise with the consent of Mortgagee.
Reference to this Mortgage contained in any of the foregoing documents shall be
deemed to include all amendments and supplements to this Mortgage.
39. No Third Party Benefits. This Mortgage and the other Loan Documents are
made for the sole benefit of Mortgagor and Mortgagee and their successors and
assigns, and no other party shall have any legal interest of any kind under or
by reason of any of the foregoing. Whether or not Mortgagee elects to employ any
or all the rights, powers or remedies available to it under any of the
foregoing, Mortgagee shall have no obligation or liability of any kind to any
third party by reason of any of the foregoing or any of Mortgagee's actions or
omissions pursuant thereto or otherwise in connection with the transaction
evidenced by the Notes and secured by this Mortgage.
40. Failure of Mortgagee to Perform.
(a) Mortgagee shall not be liable to Mortgagor for consequential
damages, whatever the nature of a breach by Mortgagee of its obligations under
this Mortgage, or any of the other Loan Documents, and Mortgagor for itself and
all parties claiming through Mortgagor hereby waives all claims for
consequential damages.
(b) Mortgagee shall not be in default under this Mortgage, or under
any other Loan Documents, unless a written notice specifically setting forth the
claim of Mortgagor shall have been given to Mortgagee within thirty (30) days
after Mortgagor first had knowledge of, or reasonably should have had knowledge
of, the occurrence of the event which Mortgagor alleges gave rise to such claim
and Mortgagee does not remedy or cure the default, if any there be, promptly
thereafter.
(c) Any action taken by Mortgagee to inspect the Mortgaged Property,
and to approve leases and all other documents and instruments submitted to
Mortgagee, will be exercised and taken by Mortgagee for its own protection only
and may not be relied upon by Mortgagor or any other party for any purposes
whatever; and Mortgagee shall not be deemed to have assumed any responsibility
to Mortgagor or any other party with respect to any such action herein
authorized or taken by Mortgagee with respect to the proper construction of
improvements on the Mortgaged Property, or performance under any lease or other
agreement. Any review, investigation or inspection conducted by Mortgagee, any
architectural or engineering consultants retained by Mortgagee or any agent or
representative of Mortgagee in order to verify independently Mortgagor's
satisfaction of any conditions precedent to loan disbursements, Mortgagor's
performance of any of the covenants, agreements and obligations of Mortgagor, or
the truth of any representations and warranties made by Mortgagor hereunder or
under any of the Loan Documents (regardless of whether or not the party
conducting such review, investigation or inspection should have discovered that
any of such conditions precedent were not satisfied or that any such covenants,
agreements or obligations were not performed or that any such representations or
warranties were not true), shall not affect (or constitute a waiver by Mortgagee
of) (i) any of Mortgagor's representations and warranties under this Mortgage or
20
any of the other Loan Documents or Mortgagee's reliance thereon or (ii)
Mortgagee's reliance upon any certifications of Mortgagor under the Loan
Documents or any other facts in formation or reports furnished Mortgagee by
Mortgagor.
41. Waiver of Trial by Jury. MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON THE LOANS SECURED BY THIS MORTGAGE, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE OR ANY OF THE OTHER
LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER
VERBAL OR WRITTEN) OR ACTION OF MORTGAGOR OR MORTGAGEE. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE MORTGAGEE'S MAKING OF THE LOANS SECURED BY THE LOAN
DOCUMENTS.
42. Copy of Mortgage. Mortgagor hereby declares and acknowledges that it
has received, without charge, a true copy of this Mortgage.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed
as a sealed instrument the day and year first above written.
BLONDER TONGUE LABORATORIES, INC.,
a Delaware corporation
By: /s/ James A. Luksch
--------------------------------------
James A. Luksch
President and Chief Executive Officer
(Corporate Seal)
21
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF PHILADELPHIA :
On the 20th day of March, 2002 before me, the subscriber, a Notary Public
in and for the Commonwealth and County aforesaid, personally appeared James A.
Luksch, who acknowledged himself to be the President and Chief Executive
Officer, of BLONDER TONGUE LABORATORIES, INC., a Delaware corporation, and that
he, as such officer, being authorized to do so, executed the foregoing Mortgage,
Security Agreement and Fixture Filing for the purposes therein contained by
signing the name of the corporation by himself as such officer, and desired that
this Mortgage, and Security Agreement and Fixture Filing be recorded as such as
the act and deed of said corporation.
WITNESS my hand and seal the day and year aforesaid.
---------------------------------------
Notary Public
My Commission Expires:
22
EXHIBIT "A"
METES AND BOUNDS DESCRIPTION ATTACHED
23
EXHIBIT "B"
-----------
PROPERTY SUBJECT TO SECURITY INTEREST
-------------------------------------
Any and all fixtures, appliances, machinery, equipment furnishings and
furniture of any nature whatsoever, contract rights, accounts, accounts
receivable, inventory, intangibles and other items of personal property and
fixtures at any time now or hereafter owned by Mortgagor/Debtor and now or at
any time hereafter installed in, attached to or situated in or upon the land
described in Exhibit "A" or the buildings and improvements now erected or to be
erected thereon (including, without limitation, communications, computer and
security systems and the software system therefor), or used or intended to be
used in connection with the real estate, or in the operation or maintenance of
the buildings and improvements, plant or business situate or operated thereon
(the "Property") or in connection with the conduct of Mortgagor/Debtor's
business whether or not the personal property is or shall be affixed to the
Property.
Such personal property and fixtures shall include, without limiting the
generality of the foregoing:
All plants, furnaces, boilers, machinery, ranges, engines, stokers,
pumps, heaters, tanks, compressors, dynamos, motors, electrical
transformers, fittings, siding, pipe, pipe connections, conduits,
ducts, partitions, communication systems, storm and screen windows,
doors, refrigerators, ovens, kitchen equipment, chests, chairs, desks,
bookcases, tables, curtains, hangings, pictures, carpeting, artwork,
lighting fixtures and apparatus, furniture, furnishings, elevators and
motors, built-in filing cabinets, shelves, water coolers, signs,
tools, electrical equipment, and all equipment, appliances and
apparatus of every kind and description now or hereafter affixed or
attached to or contained within and used or procured for use in
connection with said buildings or improvements for heating, cooling,
lighting, plumbing, ventilating, sprinkling, irrigating, refrigerating
or air conditioning, or for providing water, gas, electricity or other
services or for general operation of the buildings and improvements,
or the plant or business situate or operated thereon.
All licenses, permits, franchises, trade names, logos, service marks,
service contracts, management agreements, telephone numbers,
advertising materials, warranties, guarantees, tenant lists,
engineering, environmental, marketing and similar studies and
appraisals for the Property and all other documents and items relating
to the operation of the Property, and all leases and lease guarantees
with respect to any part of the Property, and all rents, issues and
profits arising out of the operation, use or occupancy of the
Property.
All of Mortgagor's/Debtor's interest in all utility security deposits
or bonds for the Property and all security deposits, bonds or other
security delivered
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to any governmental authority in connection with the use, development
or operation of the Property.
All of Mortgagor's/Debtor's books and records relating to the use,
operation and occupation of the buildings and the Property including,
without limitation, the books and records relating to the operation of
Mortgagor's/Debtor's business therein, and the plans and
specifications for the construction or reconstruction thereof.
All inventory and all other goods, merchandise and other personal
property that are held for sale or lease or are furnished under a
contract of service or are raw materials, work in process or materials
used or consumed or to be used or consumed in the Mortgagor's/Debtor's
business.
If the Property is now or hereafter used in whole or in part as a
hotel, motel or similar facility or as a restaurant or other food
and/or beverage service facility, such personal property shall also
include all licenses for the serving of alcoholic beverages at the
Property and all lodging and food and/or beverage equipment including,
without limitation, beds, bureaus, divans, couches, chinaware, linens,
glassware, silverware, uniforms, ornaments, kitchen utensils, bars,
bar fixtures, radios, televisions, electric equipment, lamps, mirrors,
and other personal property and fixtures used now or hereafter in on
or about the operation, use and occupation of a lodging facility
and/or food and/or beverage facility, on the Property.
Such security interest shall extend to and include as well as any and
all cash and non-cash proceeds, insurance proceeds and condemnation
proceeds of such fixtures and personal property and any and all
subsequently acquired fixtures and personal property by way of
replacement, substitution, addition or otherwise and the proceeds
thereof.
Such security interest shall not extend to property owned by third
party space tenants now or hereafter occupying the Property.
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