Prepared by:__________________________
Andrew Hamilton, Esquire
MORTGAGE, ASSIGNMENT OF LEASES, AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES, AND SECURITY AGREEMENT (this
"Mortgage") dated May 23, 1996 is made by BLONDER TONGUE LABORATORIES, INC., a
Delaware corporation, with an address of One Jake Brown Road, Old Bridge, New
Jersey ("Mortgagor"), in favor of MERIDIAN BANK, a Pennsylvania banking
corporation, with an address of 601 Penn Street, Reading, PA 19603
("Mortgagee").
ARTICLE I
OBLIGATIONS; SECURITY
1.1 Obligations; Loan Documents. This Mortgage is executed, acknowledged
and delivered by Mortgagor to secure and enforce the following obligations and
liabilities (collectively, the "Obligations"):
(a) The payment of the principal sum of SEVENTEEN MILLION EIGHT
HUNDRED THOUSAND DOLLARS ($17,800,000) as evidenced by (i) a certain Line of
Credit Note dated October 2, 1995 made by Mortgagor in favor of Mortgagee in the
principal amount of $15,000,000, (ii) a certain Real Estate Loan Note dated the
date hereof made by Mortgagor in favor of Mortgagee in the principal amount of
$2,800,000 (collectively, the "Notes"), together with interest thereon; (iii)
all sums now or in the future advanced or coming due or required to be paid
under the Loan Documents (hereafter defined) whether for principal, interest,
fees, costs, charges, expenses, or other amounts owing under reimbursement or
indemnification obligations under the Loan Documents; whether such advances are
voluntary or obligatory; whether such obligations presently exist or come into
existence at some future time; and whether such advances, costs and expenses
were made or incurred at the request of Mortgagor or Mortgagee; and (iv) all
sums which may hereafter be lent to Mortgagor when evidenced by a promissory
note or other obligation reciting that said note or obligation is intended to be
secured by this Mortgage; and
(b) The performance of (i) all of the terms, covenants, conditions,
agreements, obligations and liabilities of Mortgagor under the Notes, this
Mortgage, all other documents referred to as "Loan Documents" in the Amended and
Restated Loan Agreement dated October 2, 1995 between Mortgagor and Mortgagee,
as previously amended, as amended by that certain Second Amendment to Amended
and Restated Loan Agreement dated the date hereof (as amended, modified and/or
extended, the "Loan Agreement"), and any other document now or hereafter given
to evidence, secure or facilitate the payment and performance of any of the
Obligations; (ii) all extensions, renewals, replacements
or modifications of, or amendments or additions to any of the foregoing; and
(iii) any note, document or instrument now or hereafter evidencing an obligation
of Mortgagor to Mortgagee which recites that it is intended to be secured by
this Mortgage (all of the foregoing being collectively referred to in this
Mortgage as the "Loan Documents"). Mortgagor shall pay and perform the
Obligations required in accordance with the provisions of the Loan Documents.
1.2 Grant of Mortgage; Mortgaged Property. For the purpose of securing
payment and performance of all Obligations, Mortgagor has granted, conveyed,
bargained, sold, aliened, enfeoffed, released, confirmed, assigned to, granted a
security interest in and mortgaged, and by these presents does hereby grant,
convey, bargain, sell, alien, enfeoff, release, confirm, assign to, grant a
security interest in and mortgage unto Mortgagee all of the following whether
presently in existence or to come into existence at some future time
(collectively, the "Mortgaged Property"):
(a) The parcel(s) of land situated generally in Middlesex County, New
Jersey and more fully described in Exhibit "A" attached hereto and made a part
hereof (the "Land");
(b) All buildings, structures and improvements of every kind erected
on, under or over the Land (the "Improvements") (the Land and the Improvements
being hereinafter referred to as, collectively, the "Real Estate");
(c) all fixtures, machinery, equipment and other articles of real,
personal or mixed property, attached to, situate or installed in or upon, or
used in the operation or maintenance of, the Real Estate or any plant or
business situated thereon, whether or not such real, personal or mixed property
is or shall be affixed to the same, and all replacements, substitutions,
accretions and proceeds of the foregoing (collectively, "Fixtures") including:
(i) all furnishings, furniture, and appliances; all articles of
interior decoration, floor, wall and window coverings; all office, restaurant,
bar, kitchen and laundry fixtures, utensils, appliances and equipment; all
supplies, tools and accessories; all storm and screen windows, shutters, doors,
awnings, signs, trees, and other plantings; and
(ii) all building service fixtures, machinery and equipment of
any kind whatsoever; all lighting, heating, ventilating, air conditioning,
refrigerating, sprinkling, plumbing, security, cleaning, incinerating, waste
disposal, communications, alarm, fire prevention and extinguishing systems,
fixtures, apparatus, machinery and equipment; all elevators, escalators, lifts,
cranes, hoists and platforms; all pipes,
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conduits, pumps, boilers, tanks, motors, engines, furnaces and compressors; all
dynamos, transformers, generators; and all parts, fittings, accessories,
accessions, substitutions and replacements thereof;
(d) All leases, licenses, occupancy agreements or agreements to lease
all or any part of the Real Estate and all extensions, renewals, amendments, and
modifications thereof, and any options, rights of first refusal, or guarantees
relating thereto (collectively, "Leases"); all rents, income, receipts,
revenues, security deposits, escrow accounts, reserves, issues, profits, awards,
and payments of any kind payable under the Leases or otherwise arising from the
Real Estate (collectively, the "Income"); all contract rights, accounts
receivable and general intangibles relating to the Real Estate or the use,
occupancy, maintenance, construction, repair or operation thereof; all
management agreements, franchise agreements, utility agreements and deposits,
building service contracts, maintenance contracts, construction contracts,
architect's agreements; all maps, plans, surveys and specifications; all
warranties and guaranties; to the extent permitted by law, all permits, licenses
and approvals; all insurance policies, books of account and other documents, of
whatever kind or character, relating to the use, construction upon, occupancy,
leasing, sale or operation of the Real Estate;
(e) All estates, rights, tenements, hereditaments, privileges,
easements, and appurtenances of any kind benefitting the Real Estate; all means
of access to and from the Real Estate, whether public or private; all water and
mineral rights; all rights of Mortgagor as declarant or unit owner under any
declaration of condominium or association applicable to the Real Estate; and all
other claims or demands of Mortgagor, either at law or in equity, in possession
or expectancy, of, in, or to the Real Estate; and
(f) All "Proceeds" of any of the above-described property, which term
shall have the meaning given to it in the Uniform Commercial Code of the state
in which the Real Estate is located and shall additionally include whatever is
received upon the use, lease, sale, exchange, collection, or other utilization
or any disposition of any of the above-described property, voluntary or
involuntary, whether cash or non-cash, including proceeds of insurance and
condemnation awards, rental or lease payments, accounts, chattel paper,
instruments, documents, contract rights, general intangibles, equipment and
inventory.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee to and for
the use of the Mortgagee forever.
1.3 Security Agreement. This Mortgage is also a security agreement under
the Uniform Commercial Code of the state
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in which the Real Estate is located. Mortgagor grants, and Mortgagee shall have
and may enforce, a security interest in all those property interests included in
the Mortgaged Property which may be "personal property" to secure payment and
performance of all Obligations. Mortgagor shall execute, deliver, file and
refile any financing statements, continuation statements, or other security
agreements Mortgagee may require to confirm the lien of this Mortgage with
respect to such property. Mortgagor irrevocably appoints Mortgagee
attorney-in-fact for Mortgagor to execute, deliver and file such instruments.
1.4 Assignment of Leases and Income.
(a) This Mortgage is also an absolute and unconditional assignment to
Mortgagee of all Leases and Income, whether now in existence or hereafter
arising, for the purpose of vesting in Assignee the Leases and the Income.
Mortgagor hereby assigns, transfers and sets over to Mortgagee all Leases, all
Income and all rights of Mortgagor to enforce the Leases and collect the Income.
This assignment includes any award received or receivable by Mortgagor in any
legal proceeding involving any tenant under a Lease whether under the Bankruptcy
Code or otherwise.
(b) Mortgagor irrevocably appoints Mortgagee the attorney-in-fact of
Mortgagor to enforce the Leases and demand, receive and collect the Income and
the sole and exclusive agent of Mortgagor to agree to any modifications of the
Leases. This power is coupled with an interest and is therefore irrevocable.
Mortgagor shall notify any person which Mortgagee may from time to time specify
that the Income should be paid directly to Mortgagee and that any modification
of the Leases must be approved by Mortgagee.
(c) So long as Mortgagor is not in default in any respect under the
Loan Documents, Mortgagor shall have the right to enforce the Leases and collect
the Income subject to any applicable provisions contained in the Loan Documents.
Upon request of Mortgagee, Mortgagor shall execute and deliver to Mortgagee (i)
a specific assignment, in recordable form, of any Lease now or hereafter
affecting the Mortgaged Property or any portion thereof to further evidence the
assignment hereby made; and (ii) such other instruments as Mortgagee may deem
necessary, convenient or appropriate in connection with the payment and delivery
directly to Mortgagee of all of the Income.
(d) All security deposits, prepaid rent permitted to be collected by
Mortgagor, if any (other than prepaid rent for the next succeeding calendar
month), and similar payments under any Lease shall be deposited in a separate
escrow account with an escrowee satisfactory to Mortgagee which, if Mortgagee is
permitted to hold such accounts under applicable law, shall, at
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Mortgagee's election, be Mortgagee. Mortgagor shall notify Mortgagee of the
identification of the escrow account. Such sums shall be disbursed only upon the
prior written consent of Mortgagee except such consent shall not be required
when by law or by the terms of the Lease Mortgagor is required to, and does,
return such sums to the party entitled to same under the Lease.
(e) Mortgagor shall not accept or permit the payment of rent in any
medium other than lawful money of the United States of America, or anticipate,
discount, compromise, forgive, encumber or further assign the Leases or the
Income or any part thereof or any interest therein without the prior written
consent of Mortgagee.
(f) Mortgagor hereby authorizes and directs that all other parties now
or hereafter owing or paying Income under any Lease or now or hereafter having
in their possession or control any Income from or allocated to the Mortgaged
Property, or any part thereof, or the Proceeds therefrom, shall, upon the
request of Mortgagee and until Mortgagee directs otherwise, pay and deliver such
Income directly to Mortgagee at Mortgagee's address set forth in the
introduction to this Mortgage, or in such other manner as Mortgagee may direct
such parties in writing and this authorization shall continue until this
Mortgage is released of record. No payor making payments to Mortgagee at its
request under the assignment contained in this Mortgage shall have any
responsibility to see to the application of any of such funds, and any party
paying or delivering Income to Mortgagee under such assignment shall be released
thereby from any and all liability to Mortgagor to the full extent and amount of
all such Income so delivered.
(g) Notwithstanding any legal presumption to the contrary, Mortgagee
shall not be obligated by reason of its acceptance of this assignment to perform
any obligation of Mortgagor as lessor under any Lease. Neither the acceptance of
this assignment nor the collection of Income under the Leases shall constitute a
waiver of any rights of Mortgagee under the Loan Documents or constitute a cure
of any default by Mortgagor thereunder.
ARTICLE II
TITLE MATTERS
2.1 Warranty of Title. Until the Obligations are fully satisfied, Mortgagor
represents, warrants and covenants that:
(a) Mortgagor has good and marketable fee simple absolute title to the
Mortgaged Property subject only to those exceptions to title more particularly
described in Title Commitment issued by Commonwealth Land Title Insurance
Company
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(the "Permitted Encumbrances") and Mortgagor shall defend the validity, priority
and enforceability of the lien of this Mortgage against the claims of all
persons excepting only those claiming under Permitted Encumbrances;
(b) Mortgagor has full power and lawful authority to subject the
Mortgaged Property to the lien of this Mortgage;
(c) The execution, delivery and performance of this Mortgage and the
other Loan Documents will not contravene any Legal Requirements (hereafter
defined) or any agreement, document or instrument to which Mortgagor is a party
or by which Mortgagor or the Mortgaged Property is bound;
(d) Mortgagor shall 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 be reasonably required
by Mortgagee to confirm and fully protect the lien and priority of this
Mortgage; and
(e) Mortgagor shall make such payments, all before the same shall
become delinquent, and perform all obligations as are required under any
Permitted Encumbrances affecting the Mortgaged Property.
2.2 No Transfer. Without the prior written consent of Mortgagee in each
instance, which consent may be given or withheld in Mortgagee's reasonable
discretion, Mortgagor will abstain from, and will not cause or permit, any
transfer of the Mortgaged Property or any portion thereof, whether voluntary,
involuntary, by operation of law, or otherwise, nor shall Mortgagor enter into
any agreement or transaction to transfer, or accomplish in form or substance a
transfer, of the Mortgaged Property.
(a) A "transfer" of the Mortgaged Property includes (i) the direct or
indirect sale, agreement to sell, transfer or conveyance of the Mortgaged
Property or any portion thereof or interest therein; and (ii) the execution of
any installment land sale contract or similar instrument affecting all or a
portion of the Mortgaged Property.
(b) Consent to any such transfer shall not be deemed to be a waiver of
the right to require consent to future or successive transfers. If consent
should be given to a transfer and if this Mortgage is not released to the extent
of the transferred portion of the Mortgaged Property by a writing signed by
Mortgagee and recorded in the appropriate office of public record, then any such
transfer shall be subject to this Mortgage and any such transferee shall be
deemed, by acceptance of the deed or other instrument of transfer, to have
assumed all
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Obligations under this Mortgage and to have agreed to be bound by all provisions
contained herein. Any such assumption shall not, however, release Mortgagor or
any other obligor or guarantor of the Obligations from any liability under the
Loan Documents.
2.3 No Other Financing or Liens. Without the prior written consent of
Mortgagee in each instance, which consent may be given or withheld in
Mortgagee's reasonable discretion, Mortgagor shall not create or cause or permit
to exist any lien on the Mortgaged Property whether superior to or subject to
the lien of this Mortgage except the Permitted Encumbrances (if any) and such
other liens or security interests as are expressly and specifically agreed to be
permitted upon the Mortgaged Property by Mortgagee under the Loan Documents.
2.4 Leases. Mortgagor represents and warrants that there are no Leases
affecting the Mortgaged Property. Mortgagor shall not enter into any Leases
without the prior written consent of Mortgagee being obtained in each instance,
which consent shall not be unreasonably withheld.
ARTICLE III
OBLIGATIONS REGARDING MORTGAGED PROPERTY
3.1 Legal Requirements Generally. Mortgagor represents and warrants to
Mortgagee that, to the best of Mortgagor's knowledge, the Mortgaged Property is
in all material respects in compliance with Legal Requirements (hereafter
defined). Mortgagor shall promptly comply in all material respects with, and
cause the Mortgaged Property to be kept in all material respects in compliance
with, all present and future laws, statutes, codes, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, restrictions and
requirements (collectively "Legal Requirements") of the United States of
America, the state in which the Real Estate is located and any political
subdivision thereof or any town, city, county or municipality in which the Real
Estate is located or any agency, department, bureau, board, commission or
instrumentality of any of the foregoing now existing or hereafter created
(individually, a "Governmental Authority" and, collectively, "Governmental
Authorities") having jurisdiction over Mortgagor or the Mortgaged Property or
the construction, use, occupancy, operation, maintenance, or improvement of the
Mortgaged Property, whether foreseen or unforeseen, ordinary or extraordinary,
provided however, that Mortgagor shall be free to contest any Legal Requirement
in good faith, and during the period of such contest, to allow the Mortgaged
Property to fail to comply with such contested Legal Requirements.
3.2 Land Use Approvals. Mortgagor represents and warrants to Mortgagee that
the Land is and shall remain one or more separate zoning lots separate and apart
from all other
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premises. Mortgagor shall not, by any act or omission, impair the integrity of
the Land as such separate zoning lot or lots. Mortgagor shall not, without the
prior written consent of Mortgagee, submit or cause to be submitted to any
Governmental Authority an application for zoning, subdivision or development
approval affecting the Real Estate if any of the following would result from
such proposed zoning change, subdivision or development: (a) the separate
transfer, use and ownership of the Real Estate is not permitted as a matter of
right under applicable Legal Requirements; (b) the use of the Real Estate as of
the date of this Mortgage is no longer permitted as a matter of right under
applicable Legal Requirements; or (c) any portion of the Real Estate is used to
fulfill a Legal Requirement of other property not subject to the lien of this
Mortgage.
3.3 Environmental Matters.
(a) Mortgagor represents and warrants that neither Mortgagor nor, to
the best of its knowledge, any other person has (i) used, installed or disposed
of any Hazardous Materials (hereafter defined) on, from, or affecting the
Mortgaged Property except in full compliance with Applicable Environmental Laws
(hereafter defined); (ii) received any notice from any Governmental Authority
with regard to Hazardous Materials on, from or affecting the Mortgaged Property;
(iii) this Mortgage does not constitute a "transfer" as defined in the New
Jersey Industrial Site Recovery Act ("ISRA") and Mortgagor is not required under
ISRA or any other Applicable Environmental Laws to obtain, or provide to
Mortgagee, a letter of non-applicability in connection with this transaction,
and (iv) Mortgagor does not know or have reason to know of any lien or
threatened lien on its personal or real property requiring or obligating
Mortgagor to make payment pursuant to the New Jersey Spill Compensation and
Control Act ("SCCA"). If the Mortgaged Property were used as an "industrial
establishment," and hazardous substances were handled there, and Mortgagor's
transactions constitute a closing, termination of, or transfer of, operations,
Mortgagor has provided Mortgagee with an approved cleanup plan or a negative
declaration, obtained at its own expense and Mortgagor, at its own expense,
shall implement the cleanup plan to clean up the contamination caused or
permitted in whole or in part by Mortgagor's activities.
(b) Mortgagor shall not use the Mortgaged Property, nor allow it to be
used, to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Materials except in full
compliance with Applicable Environmental Laws. Mortgagor shall not operate a
"major facility" as defined under SCCA. Mortgagor shall not cause or permit, as
a result of any intentional or unintentional act or omission on the part of
Mortgagor or any other person, a release of Hazardous Materials onto, from or
affecting the
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Mortgaged Property or any other use, installation, or disposition of Hazardous
Materials in violation of Applicable Environmental Laws. Mortgagor shall comply,
and shall enforce compliance by all tenants and subtenants, with all Applicable
Environmental Laws and shall keep the Mortgaged Property free and clear of any
liens imposed pursuant to any Applicable Environmental Laws.
(c) If Mortgagor receives any notice from any Governmental Authority
with regard to Hazardous Materials on, from or affecting the Mortgaged Property,
or any notice of violation of Applicable Environmental Laws, Mortgagor shall
promptly notify Mortgagee. Mortgagor shall conduct and complete all
investigations, studies, sampling, and testing, and all remedial, removal, and
other actions necessary to clean up and remove all Hazardous Materials on, from
or affecting the Mortgaged Property in accordance with all Applicable
Environmental Laws, and to the reasonable satisfaction of Mortgagee.
(d) The term "Applicable Environmental Laws" shall mean, without
limitation, all Legal Requirements of any Governmental Authority pertaining to
the preservation or enhancement of the quality of the environment or regulating
or restricting the use, transfer, storage or remediation of Hazardous Materials
including the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et
seq.), ISRA, SCCA and the rules, regulations adopted and publications
promulgated pursuant thereto at any time. The term "Hazardous Materials" shall
mean, without limitation, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material containing asbestos, or any other substance
or material regulated under any Applicable Environmental Laws.
3.4 General Obligations. Until the Obligations are fully satisfied,
Mortgagor shall:
(a) Perform all maintenance, repair, restoration and rebuilding
required to keep the Mortgaged Property in good repair, order and condition in
full compliance with the requirements of the Loan Documents, any Leases
affecting the Mortgaged Property and all Legal Requirements;
(b) Pay all charges for water, sewer, gas, electric and other utility
services provided to the Mortgaged Property promptly as and when due;
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(c) Complete any improvements to the Mortgaged Property required under
the Loan Documents, any Leases affecting the Mortgaged Property, or required by
any Governmental Authority or insurer insuring the Mortgaged Property, in a good
and workmanlike manner and free of mechanics' liens;
(d) Permit, and cause any lessee or occupant of the Mortgaged Property
to permit, Mortgagee and its agents and representatives, upon at least 48 hours
written notice, to enter upon the Mortgaged Property at any reasonable time to
appraise and photograph the Mortgaged Property and to inspect for compliance
with Legal Requirements (including subsurface investigations to determine
compliance with Applicable Environmental Laws, provided that Mortgagee returns
the Mortgaged Property to its state prior to such subsurface investigation),
insurance requirements, and the Obligations of Mortgagor under this Mortgage and
the other Loan Documents; and
(e) Make the books and accounts relating to the Mortgaged Property
available for inspection by Mortgagee, or its representatives, upon request at
any reasonable time upon at least 48 hours written notice.
3.5 General Restrictions. Until the Obligations are fully satisfied,
Mortgagor shall not, without the prior written consent of Mortgagee being
obtained in each instance:
(a) Abandon the Mortgaged Property or any portion thereof or allow the
same to become vacant;
(b) Commit or suffer waste with respect to the Mortgaged Property;
(c) Impair or diminish the value or integrity of the Mortgaged
Property or the priority or security of the lien of this Mortgage;
(d) Remove, demolish or materially alter any of the Mortgaged Property
without the prior written consent of Mortgagee in each instance, which consent
will not be unreasonably withheld or delayed; except that Mortgagor shall have
the right to remove and dispose of, free of the lien of this Mortgage, such
Fixtures as may, from time to time, become worn out or obsolete, provided that,
simultaneously with or prior to such removal, any such Fixtures shall be
replaced with other Fixtures which shall have a value and utility at least equal
to that of the replaced Fixtures and, by such removal and replacement, Mortgagor
shall be deemed to have subjected such replacement Fixtures to the lien and
priority of this Mortgage;
(e) Make, install or permit to be made or installed, any additions or
improvements to the Mortgaged
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Property except in a good and workmanlike manner, free of mechanic's liens, in
compliance with Legal Requirements, and in accordance with plans and
specifications approved by Mortgagee, which approval will not be unreasonably
withheld or delayed; provided, however, that such approval will not be required
for additions or improvements that do not affect the structure or systems of the
Real Estate and which do not cost in excess of $100,000 in the aggregate in any
consecutive twelve-month period; or
(f) Make, suffer or permit any nuisance to exist on the Mortgaged
Property or any portion thereof.
3.6 Required Notices. Mortgagor shall notify Mortgagee promptly of the
occurrence of any of the following:
(a) A fire or other casualty causing damage to the Mortgaged Property;
(b) A pending or threatened condemnation of the Mortgaged Property;
(c) A violation of a Legal Requirement or other notice from or to a
Governmental Authority relating to the Mortgaged Property;
(d) Receipt or giving of any notice of default or cancellation under
any Lease of all or a material portion of the Mortgaged Property;
(e) Commencement of any litigation affecting the Mortgaged Property;
(f) Discovery, discharge or release of any Hazardous Material for
which Mortgagor is or may be responsible under any Applicable Environmental
Laws;
(g) The existence of any event or condition which presents a risk of
creating material liability in Mortgagor under ERISA (Public Law 93-406, as
amended); or
(h) The occurrence of a default under, or the receipt or giving of any
notice under, any Permitted Encumbrance.
ARTICLE IV
TAXES AND INSURANCE
4.1 Real Estate Taxes and Assessments.
(a) Mortgagor shall pay when due and before interest or penalties
commence to accrue thereon, all taxes, assessments, water and sewer rents,
levies, encumbrances and all
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other charges or claims of any nature and kind, whether public or private, which
may be assessed, levied, imposed, suffered, placed or filed at any time against
the Mortgaged Property or any part thereof or which by any present or future law
may have priority (either in lien or in distribution out of the proceeds of any
sale) over the lien of this Mortgage (individually, an "Imposition" and,
collectively, "Impositions").
(b) Mortgagor shall produce to Mortgagee within thirty (30) days after
the last date any such Imposition is due and payable without interest or
penalty, official receipts evidencing payment of such Imposition. If Mortgagor
is not in default under this Mortgage or any Loan Document, and in good faith
and by appropriate legal action shall contest the validity or amount of any
Imposition and shall have established a reserve for the payment thereof in such
form and amount as Mortgagee may reasonably require (including any interest and
penalties which may be payable in connection therewith), then Mortgagor shall
not be required to pay the Imposition or to produce the receipts while the
reserve is maintained and so long as the contest operates to prevent collection,
is maintained and prosecuted with diligence, and shall not have been terminated
or discontinued adversely to Mortgagor.
4.2 Taxes on Mortgagee. If any Governmental Authority shall levy, assess or
charge any tax, assessment or imposition upon this Mortgage or any other Loan
Document (including any requirement to have affixed to this Mortgage any
revenue, documentary or similar stamps) or upon the interest of Mortgagee in the
Mortgaged Property by reason of this Mortgage or any other Loan Document,
Mortgagor shall pay the same directly to such Governmental Authority as an
Imposition. If Mortgagor is not legally permitted to pay such Imposition or to
reimburse Mortgagee for amounts advanced on account of such payment, then
Mortgagee may declare the entire amount of the Obligations immediately due and
payable on demand.
4.3 Corporate, Partnership or Limited Liability Company Mortgagor. If
Mortgagor (or any successor or transferee of Mortgagor) is a corporation,
partnership or limited liability company, Mortgagor shall at all times until the
Obligations are satisfied in full:
(a) Keep in effect and in good standing its existence and rights as a
corporation, partnership or limited liability company, as the case may be, under
the laws of the state of its incorporation, formation or constitution and its
right to own property and transact business in the state in which the Real
Estate is situated; and
(b) File returns for all federal, state and local taxes with the
proper Governmental Authorities, and pay, when due
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and payable and before interest or penalties are due thereon, all taxes owing by
Mortgagor to any Governmental Authorities.
4.4 Insurance Coverages. Until the Obligations are fully satisfied,
Mortgagor shall maintain and keep in force the following policies of insurance
with respect to the Mortgaged Property:
(a) Insurance against loss or damage to the Mortgaged Property by fire
and any of the risks covered by insurance of the type commonly known as
"all-risk coverage," in an amount not less than the replacement value (evidenced
by a "Replacement Cost Endorsement") of the Mortgaged Property;
(b) During the course of any construction or repair of any
improvements on the Mortgaged Property, builder's completed value risk insurance
against "all risks of physical loss," including collapse and transit coverage,
during construction of such improvements, in non-reporting form;
(c) Boiler and machinery insurance (to the extent the Mortgaged
Property includes items covered by such insurance), in such amounts as are
reasonably satisfactory to Mortgagee;
(d) Coverage against sprinkler leakage;
(e) Vandalism and malicious mischief insurance;
(f) Commercial general liability insurance on an "occurrence basis"
against claims for personal injury including bodily injury, death or property
damage occurring on or about the Mortgaged Property and the adjoining streets,
sidewalks and passageways, with minimum protection to a limit of not less than
$1,000,000 (or such higher amounts as are required under any other Loan
Document) with respect to personal injury or death to any one or more persons or
damage to property;
(g) Worker's compensation insurance (including employer's liability
insurance) for all employees of Mortgagor engaged on or with respect to the
Mortgaged Property in such amount as is reasonably satisfactory to Mortgagee,
or, if such limits are established by law, in such amounts;
(h) Flood insurance, in accordance with the National Flood Insurance
Act of 1968, as amended by the Flood Disaster Protection Act of 1973, if any
portion of the Real Estate lies within a flood hazard area designated by the
Department of Housing and Urban Development, Federal Insurance Administration as
a "Flood Hazard Area";
(i) Business interruption and/or rental loss coverage for a period
equal to the reasonable period of time
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required to rebuild and restore the Mortgaged Property upon the
occurrence of a substantial destruction; and
(j) Such other insurance, and in such amounts, as may from time to
time be reasonably required by Mortgagee.
4.5 Policy Requirements. The insurance coverages required above shall be
insured under policies: (a) in form reasonably satisfactory to Mortgagee
(Mortgagee agrees that Chubb is a satisfactory insurer); (b) issued by companies
reasonably satisfactory to Mortgagee; (c) endorsed with a standard mortgagee
clause in favor of the Mortgagee providing not less than thirty days' notice to
Mortgagee of any cancellation or change in coverage; (d) endorsed to name
Mortgagee as additional insured and, subject only to Permitted Encumbrances (if
any), as loss payee; and (e) not subject to contribution or co-insurance.
Certificates of insurance, addressed to Mortgagee, evidencing such insurance
coverage, may be delivered to Mortgagee in lieu of the policies therefor, but
only if Mortgagor provides to Mortgagee copies of such policies. Certificates
shall be delivered to Mortgagee on or before the date of this Mortgage and,
thereafter, at least thirty (30) days before expiration of the existing
policies. If any insurance required under this Mortgage is cancelled, expires,
becomes void or voidable or otherwise becomes reasonably unsatisfactory to
Mortgagee, Mortgagor shall place or cause to be placed new insurance on the
Mortgaged Property reasonably satisfactory to Mortgagee. In the event of any
loss, Mortgagee may make proof of loss if not made promptly by Mortgagor. Each
insurance company concerned is hereby authorized and directed to make payment
under such insurance including (unless the insurance covers more than just the
Mortgaged Property) return of unearned premiums, directly to Mortgagee instead
of to Mortgagor and Mortgagee jointly, and Mortgagor appoints Mortgagee,
irrevocably, as Mortgagor's attorney-in-fact to endorse any draft therefor.
4.6 Installments for Insurance, Taxes and Other Charges. Without limiting
the effect of the other provisions of this Article, Mortgagor, if required by
Mortgagee, either upon an Event of Default or an occurrence, which with the
passage of time or the giving of notice would constitute an Event of Default,
shall pay to Mortgagee monthly an amount equal to one-twelfth (1/12) of the
annual amount of all Impositions and premiums for insurance policies maintained
only with respect to the Mortgaged Property, required under this Article plus
any additional sums necessary to pay, or establish adequate reserves for the
payment of, such premiums and Impositions as and when due. The amounts so paid
shall be security for the premiums and Impositions and shall be used in payment
thereof if Mortgagor is not otherwise in default under this or any other Loan
Document. 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
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thereon. Upon the occurrence of an Event of Default under this Mortgage or any
Loan Document, Mortgagee shall have the right, at its election, to apply any
amount so held against the Obligations. At Mortgagee's option, Mortgagee from
time to time may waive, and after any such waiver may reinstate, the provisions
of this section requiring installment payments.
ARTICLE V
CASUALTY; CONDEMNATION
5.1 Casualty. If the Mortgaged Property is damaged by fire or other
casualty, Mortgagor shall promptly repair and restore the same to its condition
prior to the damage. If, and only for so long as, the following terms and
conditions are fully satisfied by Mortgagor, Mortgagee shall release insurance
proceeds for repair and restoration of the Mortgaged Property; otherwise, and to
the extent of any excess proceeds, Mortgagee shall have the right to apply the
proceeds toward reduction of the Obligations:
(a) No default under this or any other Loan Document shall have
occurred and be continuing uncured;
(b) Mortgagor shall have delivered evidence satisfactory to Mortgagee
that the Mortgaged Property can be fully repaired and restored within a period
of time during which all payments coming due under the Obligations are fully
covered by the proceeds of business interruption or rental loss insurance
applicable to the loss or damage to the Mortgaged Property, or that Mortgagor
shall otherwise be in a position to continue making payments under the
Obligations;
(c) No holder of a Permitted Encumbrance has a right to apply
insurance proceeds to the obligations secured by such Permitted Encumbrance or,
if it does, the holder has waived in writing its right to do so;
(d) No Lease is cancelable by the lessee on account of the casualty
or, if it is, the lessee has waived in writing its right to cancel;
(e) The work is performed by a reputable general contractor reasonably
satisfactory to Mortgagee under a fixed price or guaranteed maximum price
contract reasonably satisfactory to Mortgagee, in accordance with plans and
specifications reasonably satisfactory to Mortgagee and in compliance with all
Legal Requirements;
(f) Mortgagor shall have deposited with Mortgagee for disbursement in
connection with the restoration, the greater of (i) the applicable deductible
under the insurance policies covering the loss; or (ii) the amount by which the
cost of
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restoration is estimated by Mortgagee to exceed the insurance proceeds available
for restoration;
(g) The insurance proceeds are held by Mortgagee (or an escrowee
satisfactory to Mortgagee) for disbursement periodically as the work progresses
in amounts not exceeding 90% of the value of labor and materials incorporated
into the restoration. The remaining 10% will be released upon final completion
of the work in accordance with the aforesaid plans and specifications, and upon
a receipt of a release of liens from all contractors and subcontractors engaged
in the restoration; and
(h) Mortgagor has paid as and when due all of Mortgagee's costs and
expenses incurred in connection with the collection of insurance proceeds,
approval of plans, charges of Mortgagee's inspection representative and such
reasonable fee as may be charged by Mortgagee to monitor the restoration and
disburse the insurance proceeds.
5.2 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 (including 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 reasonable
attorney's fees incurred by Mortgagee in connection with the collection of such
Proceeds, shall be paid to Mortgagee and applied, at Mortgagee's reasonable
election, (i) toward restoration of the Mortgaged Property (in which case the
terms and conditions applicable to restoration in the case of casualty shall
apply); or (ii) to the Obligations. No settlement for damages sustained shall be
made by Mortgagor without Mortgagee's prior written approval which approval will
not be unreasonably withheld or delayed.
(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 anyone other than Mortgagee is the successful purchaser
at the foreclosure sale, in addition to the net sale proceeds to be received by
Mortgagee in connection with the sale, any deficiency (as hereinafter defined)
due to Mortgagee in connection with the foreclosure sale, with legal
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interest thereon, 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 section, the word
"deficiency" shall be deemed to mean the difference between (A) the aggregate
amount of all sums which Mortgagee is entitled to collect under the Loan
Documents, and (B) 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 Loan Documents.
(c) After the occurrence of an Event of Default, 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 will then be appointed 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 applied to
the Obligations.
(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.
ARTICLE VI
DEFAULTS; REMEDIES
6.1 Right to Make Advances. If Mortgagor should fail to pay or perform any
of its Obligations with respect to the Mortgaged Property as required under
Article III and Article IV of this Mortgage, or otherwise fails to pay or
perform any of its other Obligations under this or any other Loan Document, then
Mortgagee, at its election, shall have the right, but not the obligation, 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. Such action shall be without prejudice
to any of Mortgagee's rights or remedies available under this Mortgage or the
other Loan Documents or otherwise at law or in equity. All such sums, as well as
costs and expenses, advanced by Mortgagee shall be due immediately from
Mortgagor to Mortgagee, shall become part of the Obligations secured by this
Mortgage and the other Loan Documents, and shall bear interest (including any
judgment obtained on account of any of the Obligations) at the applicable rate
provided in the Loan Documents in effect after maturity or default (the "Default
Rate") until repayment in full to Mortgagee.
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6.2 Events of Default. The occurrence of any one or more of the following
events shall, at the election of Mortgagee, constitute an Event of Default under
this Mortgage:
(a) Any "Event of Default" under any other Loan Document unless fully
cured in the applicable time provided in such Loan Document;
(b) Failure to pay any sum required to be paid under this Mortgage
within ten (10) Business Days after the date such payment is due;
(c) Any breach of warranty or other violation of any provision
contained in Article II of this Mortgage by Mortgagor and failure by Mortgagor
to cure such breach or other violation within thirty (30) days after Mortgagee
has given written notice thereof to Mortgagor; or
(d) Nonperformance of, or noncompliance with, any of the agreements,
covenants, conditions, warranties, representations or other provisions contained
in this Mortgage (if and only to the extent not included in any of the
occurrences listed above), which nonperformance or noncompliance is not cured
and remedied within thirty (30) days after notice thereof is given to Mortgagor.
6.3 Remedies; Execution. Upon the occurrence of an Event of Default, and at
all times thereafter, Mortgagee shall have the right to accelerate all
Obligations (including interest thereon at the Default Rate) pursuant to the
terms of the Loan Documents and to enforce its rights under this Mortgage and
the other Loan Documents by exercising such remedies as are available to
Mortgagee under applicable law, either by suit in equity or action at law, or
both, whether for specific performance of any provision contained in this
Mortgage or any of the other Loan Documents or in aid of the exercise of any
power granted in this Mortgage or the other Loan Documents.
(a) Mortgagee shall have the right to obtain judgment for the
Obligations (including all amounts advanced or to be advanced by Mortgagee under
Section 6.1 above, all costs and expenses of collection and suit, including any
bankruptcy or insolvency proceeding affecting Mortgagor, and reasonable
attorneys' fees incurred in connection with any of the foregoing) together with
interest on such judgment at the Default Rate until payment in full is received
by Mortgagee and Mortgagee shall have the right to obtain execution upon the
Mortgaged Property on account of such judgment.
(b) Mortgagee shall have the right to institute an action of mortgage
foreclosure against the Mortgaged Property or take such other action for
realization on the security
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intended to be provided under Article I of this Mortgage as applicable law or
the provisions of the Loan Documents may allow.
6.4 Remedies; Collection of Income. Upon the occurrence of an Event of
Default and at all times thereafter during the continuance thereof, Mortgagee
may, at any time without notice, either in person, by agent or by a receiver
appointed by a court, and without regard to the adequacy of any security for the
Obligations, enter upon the Mortgaged Property and, with or without taking
possession of the Mortgaged Property, and with or without legal action, collect
all Income (which term shall also include amounts determined by Mortgagee as
fair rental value for use and occupation of the Mortgaged Property by any
person, including Mortgagor) and, after deducting all costs of collection and
administration expense including reasonable attorneys' fees and reasonable
reserves, apply the net Income to any of the Obligations in such order and
amounts as Mortgagee in its sole discretion may determine, or any of the
following in such order and amounts as Mortgagee in its sole discretion may
elect: the payment of any sums due, or accumulation of necessary reserves for,
payment of all costs and expenses arising from or incurred in connection with
(a) the preservation and protection of the validity and priority of the lien of
this Mortgage; (b) the preservation and protection of the Mortgaged Property;
(c) compliance with Legal Requirements; and (d) fulfilling any obligations of
Mortgagor or any other obligor or guarantor under the Permitted Encumbrances,
the Leases, this Mortgage or the Loan Documents. Mortgagee shall not be
accountable for more monies than it actually receives from the Mortgaged
Property nor shall it be liable for failure to collect the Income. Mortgagee
shall have the right to determine the method of collection and the extent to
which enforcement of collection of Income shall be prosecuted and Mortgagee's
judgment shall be deemed conclusive and reasonable.
6.5 Remedies; Possession. Upon the occurrence of an Event of Default and at
all times thereafter during the continuance thereof, Mortgagee may, with or
without legal action, take possession and control of the Mortgaged Property to
the exclusion of Mortgagor and all others excepting only those claiming under
Permitted Encumbrances. Mortgagee shall have the authority while so in
possession to insure (at Mortgagor's expense) against all risks by reason of
having taken such possession and Mortgagor will transfer and deliver to the
Mortgagee all policies of insurance upon the Mortgaged Property not theretofore
transferred and delivered to Mortgagee.
6.6 Remedies; Repossession. Upon the occurrence of an Event of Default and
at all times thereafter during the continuance thereof, Mortgagee shall have the
right to take possession of any portion of the Mortgaged Property constituting
fixtures or other personal property subject to the Uniform
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Commercial Code of the state in which the Real Estate is located, and any
records pertaining thereto. Mortgagee shall have the right to use, operate,
manage, lease or otherwise control the Mortgaged Property in any lawful manner
and, in its sole discretion but without any obligation to do so, insure,
maintain, repair, renovate, alter or remove such Mortgaged Property; use, in
connection with any assembly, use or disposition of such Mortgaged Property any
trade mark, trade name, trade style, copyright, brand, patent right or technical
process used or utilized by Mortgagor; sell or otherwise dispose of all or any
of such Mortgaged Property at any public or private sale at any time or times
without advertisement or demand upon or notice to Mortgagor, all of which are
expressly waived to the extent permitted by law, with the right of Mortgagee or
its nominee to become purchaser at any sale (unless prohibited by statute) free
from any equity of redemption and from all other claims, and after deducting all
legal and other expenses for maintaining or selling such Mortgaged Property, and
all reasonable attorneys' fees, legal or other expenses for collection, sale and
delivery, apply the remaining proceeds of any sale to pay (or hold as a reserve
against) the Obligations and exercise all rights and remedies of a secured party
under the Uniform Commercial Code of the state in which the Real Estate is
located or any other applicable law.
6.7 Remedies; Appointment of Receiver. Upon the occurrence of an Event of
Default and at all times thereafter during the continuance thereof, Mortgagee
may, without notice, obtain appointment of a receiver for the Mortgaged Property
without regard to the adequacy of any security for the Obligations.
6.8 Remedies; Actions Prior to Acceleration. Mortgagee shall have the
right, from time to time, to bring an appropriate action or actions to recover
any sums required to be paid by Mortgagor under the terms of this Mortgage, as
they become due, without regard to whether or not the Obligations shall be due
and payable in full, and without prejudice to the right of Mortgagee thereafter
to bring an action of mortgage foreclosure, or any other action, for any default
by Mortgagor existing at the time the earlier action was commenced.
6.9 No Marshalling. Any of the Mortgaged Property sold pursuant to any writ
of execution issued on a judgment obtained on the Obligations or pursuant to any
other judicial proceedings relating to the Loan Documents or this 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.
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6.10 Rights and Remedies Cumulative.
(a) All rights and remedies of Mortgagee as provided in this Mortgage
and the other Loan Documents shall be cumulative and concurrent, may be pursued
separately, successively or together against Mortgagor or the Mortgaged
Property, or both, at the sole discretion of Mortgagee and may be exercised as
often as occasion therefor 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 terms and 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 this 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.
ARTICLE VII
MISCELLANEOUS
7.1 Costs and Expenses. If the Mortgagee becomes a party to any suit or
proceeding affecting the Mortgaged Property, title thereto, the lien created by
this Mortgage or Mortgagee's interest therein, or in the event of the
commencement of any bankruptcy or insolvency proceedings involving Mortgagor, or
if Mortgagee engages counsel to collect or to enforce performance of the
Obligations, or if Mortgagee incurs any other costs and expenses in perfecting,
protecting or enforcing its rights hereunder or in responding to any request of
Mortgagor for any consent, waiver, approval, modification or release in
connection with this Mortgage or the Mortgaged Property, Mortgagee's reasonable
counsel fees, and all other costs and expenses paid or incurred by Mortgagee,
including reasonable fees of appraisers, accountants, consultants, and other
professionals, title premiums, title report and work charges, filing fees, and
mortgage, mortgage registration, transfer, stamp and other excise taxes, whether
or not an Event of Default shall have occurred, shall be paid to Mortgagee, on
demand, with interest at the Default Rate and until paid they shall be deemed to
be part of the Obligations secured by this Mortgage.
7.2 Indemnity. Mortgagor shall indemnify, defend and hold Mortgagee
harmless from and against any claims, expenses, demands, losses, costs, fines or
liabilities of any kind (including those involving death, personal injury or
property damage and including reasonable attorneys' fees and costs) arising from
or in any way related to the failure of Mortgagor to comply with, or the failure
of the Mortgaged Property to be kept in compliance with, the Legal Requirements,
Applicable Environmental Laws, the Leases and the Permitted Encumbrances.
- 21 -
The indemnification of Mortgagor under this section shall survive the release or
termination of this Mortgage and shall remain effective notwithstanding any
foreclosure of this Mortgage or other execution against the Mortgaged Property
or acceptance of a deed in lieu of foreclosure. The indemnification agreement of
Mortgagor under this section is specifically excepted from any limitation of
liability provision contained in this or any other Loan Document.
7.3 Declaration of No Set-Off. Within ten (10) days after requested to do
so by Mortgagee, Mortgagor shall certify to Mortgagee or to any proposed
assignee of this Mortgage or participant in the Obligations, in a writing duly
acknowledged, the amount of principal, interest and other charges then owing on
the Obligations secured by this Mortgage, and whether there are set-offs or
defenses against them.
7.4 Communications. All notices required under this Mortgage shall be in
writing and shall be delivered in accordance with the applicable provisions
contained in the Loan Agreement. A party may change its address by giving
written notice to the other party as specified therein.
7.5 Covenant Running with the Land. Any act or agreement specified herein
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 each had personally made such agreement.
7.6 Amendment. Any amendment, modification, consent or waiver which may be
hereafter requested by Mortgagor or otherwise required must, be in writing and
signed by both Mortgagor and Mortgagee.
7.7 Applicable Law. This Mortgage shall be governed by, and construed in
accordance with, the law of the state chosen by the parties under the applicable
provision contained in the Loan Agreement except to the extent that rights,
remedies and warrants of attorney which relate to realizing upon the security
covered by this Mortgage are governed by the laws of the state in which the Real
Estate is located. Nothing contained in this Mortgage or in any other Loan
Document shall require Mortgagor to pay, or Mortgagee to accept, interest in an
amount which would subject Mortgagee to penalty under applicable law.
7.8 Construction. Whenever used in this Mortgage, unless the context
clearly indicates a contrary intent:
(a) The word "Mortgagor" shall mean the corporation which executed
this Mortgage and any subsequent fee owner of the Mortgaged Property and his or
its respective heirs,
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executors, administrators, personal representatives, successors
and assigns;
(b) The word "Mortgagee" shall mean, collectively, all of the entities
listed as Mortgagee hereinabove or any subsequent holder of this Mortgage or
participant in the Notes;
(c) The word "person" shall mean an individual, corporation,
partnership, limited liability company or unincorporated association;
(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) The word "including" shall mean "including but not limited to" or
"including without limitation," as the context may require.
7.9 Joint and Several Liability. If Mortgagor, or any successor or grantee
of Mortgagor, shall be more than one person, all Obligations of Mortgagor under
this Mortgage shall be joint and several and shall bind and affect all persons
who are defined as "Mortgagor" as fully as though all of them were specifically
named herein wherever the word "Mortgagor" is used.
7.10 Headings. The headings of sections have been included in this Mortgage
for convenience of reference only and shall not be considered in interpreting
this Mortgage.
7.11 Severability. If any provision of this Mortgage shall be held for any
reason to be invalid, illegal or unenforceable, such impairment shall not affect
any other provision of this Mortgage.
7.12 Receipt of Copy. Mortgagor acknowledges receipt of conformed copies of
the Loan Documents and this Mortgage.
7.13 Nonforeign Entity.
(a) Mortgagor hereby certifies, under penalty of perjury, that: (i)
Mortgagor is not a foreign corporation, foreign partnership, foreign trust or
foreign estate, as those terms are defined in the Internal Revenue Code of 1986,
as amended and regulations promulgated thereunder; (ii) Mortgagor's U.S.
employer identification number is 52-1611421; and (iii) Mortgagor's principal
place of business is set forth in the introduction paragraph of this Mortgage.
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(b) Mortgagor warrants that withholding of tax will not be required in
the event of any disposition of the Mortgaged Property, or any portion thereof,
pursuant to the terms of this Mortgage. Mortgagor covenants and agrees to
execute such further certificates, which shall be signed under penalty of
perjury, as Mortgagee shall require. The provisions of this section shall
survive the foreclosure or other execution upon the lien of this Mortgage or
acceptance of a deed in lieu of foreclosure.
7.14 Modifications. This Mortgage is subject to modifications as defined by
N.J.S.A. 46:9-8.1.
7.15 Future Advances. Without limiting any other provisions of this
Mortgage, this Mortgage shall secure additional loans hereafter made by
Mortgagee to Mortgagor but in no event shall the total outstanding principal
indebtedness secured hereby at any such time exceed twice the amount of the
original principal amount of the Notes. Each such additional loan shall be
evidenced by a note or other obligation which recites that it is intended to be
secured by this Mortgage. Nothing herein contained shall imply any obligation on
the part of Mortgagee to make any such additional loan
- 24 -
IN WITNESS WHEREOF, Mortgagor, intending to be legally bound hereby, has
duly executed this Mortgage, under seal, as of the day and year first above
written.
BLONDER TONGUE LABORATORIES,
INC.
By:___________________________
James A. Luksch, President
(Corporate Seal)
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STATE OF :
: SS
COUNTY OF :
I CERTIFY that on May 23, 1996, James A. Luksch, the President of BLONDER
TONGUE LABORATORIES, INC., a Delaware corporation, personally appeared before
me, who I am satisfied to be the person who signed the foregoing instrument, and
acknowledged that he was authorized to execute the same as the act of said
corporation.
------------------------------
Name:_________________________
Title:________________________
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EXHIBIT "A"
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