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EXHIBIT 4(a)(xxiii)
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT,
dated as of the 18th day of April, 2003 (the Mortgage"), is executed and
delivered by ONEIDA LTD., a New York corporation, with offices at 163-181
Kenwood Avenue, Oneida, New York 13241 (hereafter referred to as "Oneida" or
"Mortgagor") to JPMORGAN CHASE BANK (formerly known as The Chase Manhattan
Bank), as Collateral Agent under the Collateral Agent Agreement (as defined
below), with offices at 500 Plum Street, Syracuse, New York 13204 (the
"Mortgagee").
Recitals
A. Pursuant to a 2001 Amended and Restated Note Purchase Agreement,
dated as of May 1, 2001 (such agreement, as has been or hereafter may be
modified, amended, renewed or replaced, the "Note Agreement"), by and among
Mortgagor, THC Systems, Inc. ("THC") and Allstate Life Insurance Company,
Allstate Insurance Company, and Pacific Life Insurance Company (successor to
Pacific Mutual Life Insurance Company (individually, a "Noteholder" and
collectively, the "Noteholders"), THC has issued and sold to the Noteholders
$35,000,000 aggregate principal amount of its Senior Secured Notes due May 31,
2005 (the "THC Notes"). Payment of the THC Notes were guaranteed by Mortgagor
pursuant to the Note Agreement.
B. Pursuant to that certain Amended and Restated Credit Agreement,
dated as of April 27, 2001 (as has been or hereafter may be modified, amended,
renewed or replaced, the "Credit Agreement"), by and among Mortgagor, JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as the Administrative
Agent (in such capacity, the "Administrative Agent"), and the financial
institutions parties thereto (collectively, the "Lenders"), the Lenders have
made available to Mortgagor certain credit facilities, including, without
limitation, a loan in the aggregate amount of $40,000,000 (the "Bullet Loan")
evidenced by the following promissory notes, each dated January 4, 2002 (as may
be modified, amended, renewed or replaced, collectively referred to as the
"Bullet Notes"):
(i) Promissory Note in the amount of $6,545,454.55 in favor of
JPMorgan Chase Bank;
(ii) Promissory Note in the amount of $5,090,909.09 in favor of Bank
of America, N.A.;
(iii) Promissory Note in the amount of $6,545,454.55 in favor of Fleet
National Bank;
(iv) Promissory Note in the amount of $6,545,454.55 in favor of HSBC
Bank, USA;
(v) Promissory Note in the amount of $5,818,181.82 in favor of
Manufacturers and Traders Trust Company;
(vi) Promissory Note in the amount $5,090,909.09 in favor of Bank of
Nova Scotia;
(vii) Promissory Note in the amount of $2,181,818.18 in favor of
European American Bank; and
(viii) Promissory Note in the amount of $2,181,818.18 in favor of
Banca Nazionale Del Lavoro.
C. The Noteholders under the Note Agreement and the Lenders under the
Credit Agreement (collectively referred to as the "Secured Parties"), together
with certain other secured creditors of Oneida, have entered into an Amended and
Restated Collateral Agency and Intercreditor Agreement dated as of April 23,
2002 (as
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may be modified, amended, supplemented or replaced, the "Collateral Agent
Agreement"), appointing JPMorgan Chase Bank as their Collateral Agent and
establishing their relative rights with respect to certain collateral, including
the property mortgaged hereby.
D. Pursuant to the terms of the Note Agreement and the Credit
Agreement (collectively, together with this Mortgage, referred to as the
"Transaction Documents"), Mortgagor is required to grant to the Collateral Agent
a mortgage on certain real estate owned by Mortgagor in order to secure
repayment of the THC Notes and the Bullet Notes (collectively referred to as the
"Notes").
WITNESSETH, that to secure (a) payment of the Notes, with interest
thereon, (b) performance of Mortgagor's obligations under the Transaction
Documents insofar as they relate to the Notes or guarantee repayment of the
Notes, (c) payment by Mortgagor to Mortgagee of all sums expended or advanced by
Mortgagee pursuant to any covenant, term, or provision of this Mortgage, and (d)
performance of each covenant, term and provision by Mortgagor to be performed
pursuant to this Mortgage (clauses (a)-(d) hereafter collectively referred to as
the "Indebtedness"), and provided that the maximum principal Indebtedness
secured hereby shall never exceed $191,500.00, Mortgagor hereby mortgages,
grants, conveys, warrants, pledges, assigns, and hypothecates unto Mortgagee,
its successors and assigns, WITH THE POWER OF SALE, the real property described
in Exhibit A attached hereto including, but not limited to, Mortgagor's
leasehold interests in the Premises, (the "Premises"), and all of the buildings,
structures, fixtures, additions, enlargements, extensions, modifications,
repairs, replacements, and improvements now or hereafter located thereon (the
"Improvements");
TOGETHER WITH all right, title, interest, and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements, and such property,
rights, interests, and estates hereinafter described are collectively referred
to as the "Mortgaged Property"):
GRANTING CLAUSE ONE
All easements, rights-of-way, strips and gores of land, streets, ways,
alleys, passages, sewer rights, water, water courses, water rights and powers,
air rights and development rights, all rights to oil, gas, minerals, coal and
other substances of any kind or character, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road, highway, alley or
avenue, opened, vacated or proposed, in front of or adjoining the Premises, to
the center line thereof and all the estates, rights, titles, interests, dower
and rights of dower, curtsey and rights of curtsey, property, possession, claim
and demand whatsoever, both at law and in equity, of Mortgagor of, in and to the
Premises and the Improvements and every part and parcel thereof, with the
appurtenances thereto;
GRANTING CLAUSE TWO
All machinery, furniture, furnishings, equipment, computer software
and hardware, fixtures (including, without limitation, all heating, air
conditioning, plumbing, lighting, communications and elevator fixtures) and
other property of every kind and nature, whether tangible or intangible,
whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Premises and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Mortgagor,
or in which Mortgagor has or shall have an interest, now or hereafter located
upon the Premises and the Improvements, or appurtenant thereto, or usable in
connection with the present or future operation, enjoyment and occupancy of the
Premises and the Improvements (hereinafter collectively referred to as the
"Equipment"), including any leases of any of the foregoing, any deposits
existing at any time in connection with any of the foregoing, and the proceeds
of any sale or transfer of the foregoing, and the right, title and interest of
Mortgagor in and to any of the Equipment that may be subject to any "security
interests" as defined in New York's Uniform Commercial Code (the "Uniform
Commercial Code"), superior in lien to the lien of this Mortgage;
GRANTING CLAUSE THREE
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Awards or payments, including interest thereon, that may heretofore
and hereafter be made with respect to the Premises and the Improvements, whether
from the exercise of the right of eminent domain or condemnation (including,
without limitation, any transfer made in lieu of or in anticipation of the
exercise of said rights), or for a change of grade, or for any other injury to
or decrease in the value of the Premises and Improvements;
GRANTING CLAUSE FOUR
All leases and other agreements or arrangements heretofore or
hereafter entered into affecting the use, enjoyment or occupancy of, or the
conduct of any activity upon or in, the Premises and the Improvements, including
any extensions, renewals, modifications or amendments thereof (the "Leases") and
all rents, rent equivalents, moneys payable as damages or in lieu of rent or
rent equivalents, royalties (including, without limitation, all oil and gas or
other mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts, cash, issues, profits, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Mortgagor or its agents or employees from any and all
sources arising from or attributable to the Premises and the Improvements (the
"Rents"), together with all proceeds from the sale or other disposition of the
Leases and the right to receive and apply the Rents to the payment of the Debt;
GRANTING CLAUSE FIVE
All proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Mortgaged Property;
GRANTING CLAUSE SIX
The right, in the name and on behalf of Mortgagor, to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to commence any action or proceeding to protect the interest of Mortgagee in
the Mortgaged Property;
GRANTING CLAUSE SEVEN
All proceeds, products, offspring, rents and profits from any of the
foregoing, including, without limitation, those from sale, exchange, transfer,
collection, loss, damage, disposition, substitution or replacement of any of the
foregoing.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property, WITH THE POWER OF SALE, unto and to the use and benefit of Mortgagee,
forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Mortgagor shall well and truly pay to Mortgagee the Indebtedness at the time
and in the manner provided in the Notes and this Mortgage and shall well and
truly abide by and comply with each and every covenant and condition set forth
herein, in the Notes and in the other Transaction Documents in a timely manner,
these presents and the estate hereby granted shall cease, terminate and be void
upon the full payment of the Indebtedness.
This Mortgage secures the payment of the Indebtedness in a principal
amount not to exceed $191,500.00 (the "Secured Principal Amount"), together with
interest and amounts that Mortgagee expends under this Mortgage in connection
with (i) any taxes, charges or assessments that may be imposed by law upon the
Mortgaged Property, (ii) premiums on insurance policies covering the Mortgaged
Property, and (iii) expenses incurred in upholding the lien of this Mortgage,
including the expenses of any litigation to prosecute or defend the rights and
lien created by this Mortgage, all of the foregoing Indebtedness and
obligations, collectively, the "Secured Indebtedness." Notwithstanding any
provision in this Mortgage to the contrary, (a)until the Indebtedness is paid in
full, this Mortgage secures the entire Indebtedness provided that the maximum
principal Indebtedness secured
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hereby shall never exceed the Secured Principal Amount; (b) this Mortgage shall
secure only the Indebtedness, taxes, charges, assessments, premiums, and
expenses included within the foregoing definition of "Secured Indebtedness"; and
(c) the Secured Principal Amount shall be reduced only by the last and final
sums that Mortgagor repays or is paid on its behalf with respect to the
principal of the Indebtedness and shall not be reduced by any intervening
principal payments of the Indebtedness by Mortgagor; such intervening principal
payments shall instead be deemed to reduce only such portions of the
Indebtedness first, as are unsecured, second, as are secured by other collateral
other than real property located in New York State owned by Mortgagor or any
guarantor of the Indebtedness (the "Guarantor"), third, as are secured by a
subordinated lien on real property located in New York State owned by Mortgagor
or the Guarantor.
Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
PART I
GENERAL PROVISIONS
1. Payment of Indebtedness and Incorporation of Covenants, Conditions
and Agreements. Mortgagor shall pay the Indebtedness at the time and in the
manner provided in the Notes and in the other Transaction Documents. All the
covenants, conditions and agreements contained in the Notes and any of the
Transaction Documents are hereby made a part of this Mortgage to the same extent
and with the same force as if fully set forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has good,
marketable and insurable title to the Mortgaged Property and has the full power,
authority and right to execute, deliver and perform its obligations under this
Mortgage and to deed, encumber, mortgage, give, grant, bargain, sell, alienate,
convey, confirm, pledge, assign and hypothecate the same and that Mortgagor
possesses an unencumbered fee estate in the Premises and the Improvements and
that it owns the Mortgaged Property free and clear of all liens, encumbrances
and charges whatsoever except for certain utility easements which do not affect
in any way Mortgagor's use of the Mortgaged Property (the "Permitted
Exceptions") and that this Mortgage is and will remain a valid and enforceable
first lien on and security interest in the Mortgaged Property, subject only to
said Permitted Exceptions, if any. Mortgagor shall forever warrant, defend and
preserve such title and the validity and priority of the lien of this Mortgage
and shall forever warrant and defend the same to Mortgagee against the claims of
all persons whomsoever.
3. Insurance.
(a) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall obtain and maintain during the entire
term of this Mortgage (the "Term") policies of insurance against loss or damage
by fire, lightning and such other perils as are included in a standard
"all-risk" endorsement, and against loss or damage by all other risks and
hazards covered by a standard extended coverage insurance policy including,
without limitation, riot, and civil commotion, vandalism, malicious mischief,
burglary and theft. Such insurance shall be in an amount equal to the greater of
(i) the then full replacement cost of the Improvements and Equipment, without
deduction for physical depreciation, and (ii) such amount that the insurer would
not deem Mortgagor a co-insurer under said policies. The policies of insurance
carried in accordance with this paragraph shall be paid annually in advance and
shall contain a "Replacement Cost Endorsement" with a waiver of depreciation,
and shall have a deductible no greater than $100,000 unless so agreed by
Mortgagee.
(b) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall also obtain and maintain during the
Term the following policies of insurance:
(i) Flood insurance if any part of the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as an
area having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Program in an amount equal to the
lesser of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis (or the unpaid balance
of the Indebtedness secured hereby if replacement cost coverage is not
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available for the type of building insured); or (b) the maximum insurance
available under the appropriate National Flood Insurance Program.
(ii) Comprehensive public liability insurance, including
broad form property damage, blanket contractual and personal injuries (including
death resulting therefrom) coverages and containing minimum limits per
occurrence of $1,000,000 and $2,000,000 in the aggregate for any policy year. In
addition, at least $5,000,000 excess and/or umbrella liability insurance shall
be obtained and maintained for any and all claims, including all legal liability
imposed upon Mortgagor and all court costs and attorneys' fee incurred in
connection with the ownership, operation and maintenance of the Mortgaged
Property.
(iii) During any period of repair or restoration, builder's
"all risk" insurance in an amount equal to not less than the full insurable
value of the Improvement being renovated, restored or reconstructed insuring
against such risks (including, without limitation, fire and extended coverage
and collapse of the Improvements to agreed limits) as Mortgagee may request, in
form and substance acceptable to Mortgagee.
(iv) Such other insurance as may be customary for properties
of the same type as the Mortgaged Property in the geographic area in which the
Mortgaged Property is located and as may from time to time be reasonably
required by Mortgagee in order to protect its interests.
(c) All policies of insurance (the "Policies") required pursuant
to this paragraph: (i) shall be issued by companies approved by Mortgagee and
licensed to do business in the state where the Mortgaged Property is located,
with a claims paying ability rating of AA or better by Standard & Poor's Rating
Services; (ii) shall name Mortgagee and its successors and/or assigns as their
interest may appear as the beneficiary/mortgagee; (iii) shall contain a
non-contributory standard mortgagee clause and a Mortgagee's loss payable
endorsement or their equivalents, naming Mortgagee as the person to which all
payments made by such insurance company shall be paid; (iv) shall contain a
waiver of subrogation against Mortgagee; (v) shall be maintained throughout the
Term without cost to Mortgagee; (vi) shall be assigned and the originals
delivered to Mortgagee; (vii) shall contain such provisions as Mortgagee deems
reasonably necessary or desirable to protect its interest including, without
limitation, endorsements providing that neither Mortgagor, Mortgagee nor any
other party shall be a co-insurer under said Policies and that Mortgagee shall
receive at least thirty (30) days prior written notice of any modification,
reduction or cancellation; and (viii) shall be satisfactory in form and
substance to Mortgagee and shall be approved by Mortgagee as to amounts, form,
risk coverage, deductibles, loss payees and insureds. Mortgagor shall pay the
premiums for such Policies (the "Insurance Premiums") as the same become due and
payable and shall furnish to Mortgagee evidence of the renewal of each of the
Policies with receipts for the payment of the Insurance Premiums or other
evidence of such payment reasonably satisfactory to Mortgagee. If Mortgagor does
not furnish such evidence and receipts at least thirty (30) days prior to the
expiration of any expiring Policy, then Mortgagee may procure, but shall not be
obligated to procure, such insurance and pay the Insurance Premiums therefor,
and Mortgagor agrees to reimburse Mortgagee for the cost of such Insurance
Premiums promptly on demand. Within thirty (30) days after request by Mortgagee,
Mortgagor shall obtain such increases in the amounts of coverage required
hereunder as may be reasonably requested by Mortgagee, taking into consideration
changes in the value of money over time, changes in liability laws, changes in
prudent customs and practices.
4. Casualty.
(a) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), Mortgagor
shall give prompt notice thereof to Mortgagee. Following the occurrence of an
Insured Casualty, Mortgagor, regardless of whether insurance proceeds are
available, shall promptly proceed to restore, repair, replace or rebuild the
same to be of at least equal value and of substantially the same character as
prior to such damage or destruction, all to be effected in accordance with
applicable law. The expenses incurred by Mortgagee in the adjustment and
collection of insurance proceeds shall become part of the Secured Indebtedness
and be secured hereby and shall be reimbursed by Mortgagor to Mortgagee upon
demand.
(b) In case of loss or damages covered by any of the Policies,
the following provisions shall apply:
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(i) In the event of an Insured Casualty that does not exceed
$500,000, Mortgagor may settle and adjust any claim without the consent of
Mortgagee and agree with the insurance company or companies on the amount to be
paid upon the loss; provided that such adjustment is carried out in a competent
and timely manner. In such case, Mortgagor is hereby authorized to collect and
receipt for any such insurance proceeds.
(ii) In the event an Insured Casualty shall exceed $500,000,
then and in that event, Mortgagee may settle and adjust any claim without the
consent of Mortgagor and agree with the insurance company or companies on the
amount to be paid on the loss and the proceeds of any such policy shall be due
and payable solely to Mortgagee and held in escrow by Mortgagee in accordance
with the terms of this Mortgage.
(iii) In the event of an Insured Casualty where the loss is
in an aggregate amount less than $500,000 and if, in the reasonable judgment of
Mortgagee, the Mortgaged Property can be restored within six (6) months and
prior to the maturity of the Notes to an economic unit not materially less
valuable and not less useful than the same was prior to the Insured Casualty,
and after such restoration will adequately secure the outstanding balance of the
Indebtedness, then, if no Event of Default (as hereinafter defined) shall have
occurred and be then continuing, the proceeds of insurance (after reimbursement
of any expenses incurred by Mortgagee) shall be applied towards the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to the Insured Casualty, in the manner set forth below.
Mortgagor hereby covenants and agrees to commence and diligently to prosecute
such restoring, repairing, replacing or rebuilding; provided always, that
Mortgagor shall pay all costs (and if required by Mortgagee, Mortgagor shall
deposit the total thereof with Mortgagee in advance) of such restoring,
repairing, replacing or rebuilding in excess of the net proceeds of insurance
made available pursuant to the terms hereof.
(iv) Except as provided above in clauses (ii) and (iii) of
this Paragraph 4, the proceeds of insurance collected upon any Insured Casualty
shall, at the option of Mortgagee in its sole discretion, be applied to the
payment of the Indebtedness or applied to reimburse Mortgagor for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to the Insured Casualty, in the manner set forth below.
(v) In the event Mortgagor is entitled to reimbursement out
of insurance proceeds held by Mortgagee, such proceeds shall be disbursed from
time to time upon Mortgagee being furnished with (1) evidence satisfactory to it
of the estimated cost of completion of the restoration, repair, replacement and
rebuilding, (2) funds or, at Mortgagee's option, assurances satisfactory to
Mortgagee that such funds are available, sufficient in addition to the proceeds
of insurance to complete the proposed restoration, repair, replacement and
rebuilding, and (3) such architect's certificates, waivers of lien, contractor's
sworn statements, title insurance endorsements, bonds, plats of survey and such
other reasonable evidences of cost, payment and performance as Mortgagee may
reasonably require and approve. Mortgagee may, in any event, require that all
plans and specifications for such restoration, repair, replacement and
rebuilding be submitted to and approved by Mortgagee prior to commencement of
work. No payment made prior to the final completion of the restoration, repair,
replacement and rebuilding shall exceed ninety percent (90%) of the value of the
work performed from time to time; funds other than proceeds of insurance shall
be disbursed prior to disbursement of such proceeds; and at all times, the
undisbursed balance of such proceeds remaining in the hands of Mortgagee,
together with funds deposited for that purpose or irrevocably committed to the
satisfaction of Mortgagee by or on behalf of Mortgagor for that purpose, shall
be at least sufficient, in the reasonable judgment of Mortgagee, to pay for the
cost of completion of the restoration, repair, replacement or rebuilding, free
and clear of all liens or claims for lien. Any surplus which may remain out of
insurance proceeds held by Mortgagee after payment of such costs of restoration,
repair, replacement or rebuilding shall be paid to Oneida.
5. Representations. Mortgagor hereby represents and warrants to
Mortgagee as follows:
(a) This Mortgage is in all respects a valid and legally binding
obligation of Mortgagor, enforceable in accordance with its terms.
(b) The execution and delivery of this Mortgage and the
performance and observance by Mortgagor of its obligations hereunder will not
contravene or result in a breach of (i) Mortgagor's
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certificate of incorporation or by-laws, (ii) any governmental requirements,
(iii) any decree or judgement binding on Mortgagor, or (iv) any agreement or
instrument binding on Mortgagor or any of its properties, nor will the same
result in the creation of any lien or security interest under any such agreement
or instrument.
(c) All utility services necessary and sufficient for the
construction, development and operation of the Mortgaged Property for its
intended purposes are presently available to the Premises through dedicated
public rights of way or through perpetual private easements, approved by
Mortgagee, with respect to which the Mortgage creates a valid, binding and
enforceable lien, including, but not limited to, water supply, storm and
sanitary sewer, gas, electric and telephone facilities, and drainage.
(d) Neither the Mortgaged Property nor any portion thereof is now
damaged or injured as result of any fire, explosion, accident, flood or other
casualty or has been the subject of any taking, and, to the knowledge of
Mortgagor, no taking is pending or contemplated.
(e) All federal, state and other tax returns of Mortgagor with
respect to the Mortgaged Property required by law to be filed have been filed;
all federal, state and other taxes, assessments and other governmental charges
upon Mortgagor with respect to the Mortgaged Property which are due and payable
have been paid; and Mortgagor has set aside on its books provisions reasonably
adequate for the payment of all such taxes for periods subsequent to the periods
for which such returns have been filed.
(f) Mortgagor has made no contract or arrangement of any kind or
type whatsoever (whether oral or written, formal or informal), the performance
of which by the other party thereto could give rise to a lien or encumbrance on
the Mortgaged Property, except for contracts (all of which have been disclosed
in writing to Mortgagee) made by Mortgagor with parties who have executed and
delivered lien waivers to Mortgagor, and which, in the opinion of Mortgagee's
counsel, will not create rights in existing or future lien claimants which may
be superior to the lien of the Mortgage.
(g) The rights of way for all roads necessary for the full
utilization of the Mortgaged Property for their intended purposes have either
been acquired by the Mortgagor, the appropriate governmental authority or have
been dedicated to public use and accepted by such governmental authority, and
all such roads shall have been completed, or all necessary steps shall have been
taken by Mortgagor and such governmental authority to assure the complete
construction and installation thereof prior to the date upon which access to the
Mortgaged Property via such roads will be necessary. All curb cuts, driveway
permits and traffic signals necessary for access to the Mortgaged Property after
completion of the Improvements are existing or have been fully approved by the
appropriate governmental authority.
(h) No Event of Default (hereinbelow defined) exists and no event
which but for the passage of time, the giving of notice or both would constitute
an Event of Default has occurred.
(i) The Permitted Exceptions do not and will not materially and
adversely affect (1) the ability of Mortgagor to pay in full the principal and
interest on the Notes in a timely manner or (2) the use of the Mortgaged
Property for the use currently being made thereof, the operation of the
Mortgaged Property as currently being operated or the value of the Mortgaged
Property.
(j) Upon the execution by Mortgagor and the recording of this
Mortgage, and upon the execution and filing of UCC-1 financing statements or
amendments thereto, Mortgagee will have a valid first lien on the Mortgaged
Property and a valid security interest in the Equipment subject to no liens,
charges or encumbrances other than the Permitted Exceptions.
(k) Mortgagor (1) has not executed the Notes, this Mortgage, or
any other Transaction Document with the actual intent to hinder, delay, or
defraud any creditor and (2) has received reasonably equivalent value in
exchange for its obligations under the Notes, this Mortgage, and the Transaction
Documents. The fair saleable value of Mortgagor's assets exceed and will,
immediately following the execution and delivery of this Mortgage, exceed
Mortgagor's total liabilities, including, without limitation, subordinated,
unliquidated, disputed or contingent liabilities. The fair saleable value of
Mortgagor's assets is and will, immediately following
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the execution and delivery of this Mortgage, be greater than Mortgagor's
probable liabilities, including the maximum amount of its contingent liabilities
or its debts as such debts become absolute and matured. Mortgagor's assets do
not and, immediately following the execution and delivery of this Mortgage will
not, constitute unreasonably small capital to carry out its business as
conducted or as proposed to be conducted. Mortgagor does not intend to, and does
not believe that it will, incur debts and liabilities (including, without
limitation, contingent liabilities and other commitments) beyond its ability to
pay such debts as they mature (taking into account the timing and amounts to be
payable on or in respect of obligations of Mortgagor).
(l) Mortgagor has full power, authority and right to execute,
deliver and perform its obligations pursuant to this Mortgage, and to deed,
mortgage, give, grant, bargain, sell, alien, convey, confirm, warrant, pledge,
hypothecate and assign the Mortgaged Property pursuant to the terms hereof and
to keep and observe all of the terms of this Mortgage on Mortgagor's part to be
performed.
(m) Mortgagor is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the
related Treasury Department regulations, including temporary regulations.
6. Appointment of Receiver. In any action to foreclose this Mortgage,
Mortgagee shall be entitled, without notice and as a matter of right and without
regard to the adequacy of any security of the indebtedness or the solvency of
Mortgagor, upon application to any court having jurisdiction, to the appointment
of a receiver of the rents, income and profits of the Mortgaged Property. If an
Event of Default occurs under this Mortgage, Mortgagor, upon demand of
Mortgagee, shall surrender the possession of, and it shall be lawful for
Mortgagee, by such officer or agent as it may appoint, to take possession of,
all or any part of the Mortgaged Property together with the books, papers, and
accounts of Mortgagor pertaining thereto, and to hold, operate and manage the
same, and from time to time to make all needed repairs and improvements as
Mortgagee shall deem wise; and, if Mortgagee deems it necessary or desirable, to
complete construction and equipping of any Improvements and in the course of
such construction or equipping to make such changes to the same as it may deem
desirable; and Mortgagee may sell the Mortgaged Property or any part thereof, or
institute proceedings for the complete or partial foreclosure of the lien of
this Mortgage on the Mortgaged Property, or lease the Premises or any part
thereof in the name and for the account of Mortgagor or Mortgagee and collect,
receive and sequester the rents, revenues, earnings, income, products and
profits therefrom, and out of the same and any other monies received hereunder
pay or provide for the payment of, all proper costs and expenses of taking,
holding, leasing, selling and managing the same, including reasonable
compensation to Mortgagee, its agents and counsel, and any charges of Mortgagee
hereunder, and any taxes and other charges prior to the lien of this Mortgage
which Mortgagee may deem it wise to pay. The Receiver shall also be authorized
to collect from Mortgagor, and Mortgagor agrees to pay, the fair rental value of
Mortgagor's use and occupancy of the Mortgaged Property.
7. Payment of Real Estate Taxes. Mortgagor shall pay all taxes,
assessments, sewer rents or water rates or sums due under any payment in lieu of
tax agreement ("Pilot Agreement") and in default thereof, Mortgagee may pay the
same. In the event that Mortgagee shall pay any such tax, assessment, sewer
rent, water rate or sums due under any Pilot Agreement, Mortgagee shall have the
right, among other rights, to declare the amount so paid with interest thereon
immediately due and payable, and upon default of Mortgagor in paying any such
amount with interest thereon, Mortgagee shall have the right, subject to the
limitations contained in the definition of Secured Indebtedness hereinabove set
forth, to foreclose for such amount as well as any amounts due under the Notes.
In the event that Oneida should fail to pay any sum Mortgagor has
agreed to pay pursuant to this covenant for a period in excess of sixty (60)
days after the same is due and payable, in addition to any other remedies
available to Mortgagee hereunder, Mortgagee may, at its option, require that
Mortgagor deposit with Mortgagee, monthly, one-twelfth (1/12th) of the annual
charges for taxes and any other sums Mortgagor is obligated to pay pursuant to
this covenant and Mortgagor shall make such deposits with Mortgagee. Mortgagor
shall simultaneously therewith deposit with Mortgagee a sum of money which
together with the monthly installments aforementioned will be sufficient to make
payment of all sums required to be paid hereunder at least thirty (30) days
prior to the due date of such payments, it being understood that Mortgagee shall
calculate the amount of such deposits and notify Mortgagor of the sum due.
Should an Event of Default (hereinbelow defined) occur, the funds
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deposited with Mortgagee pursuant to this provision may be applied in payment of
the charges for which said funds shall have been deposited or to the payment of
any other sums secured by this Mortgage as Mortgagee sees fit.
8. Payment of Mortgage Taxes. Mortgagor shall pay all taxes, if any,
imposed pursuant to Article 11 of the New York Tax Law or any other statute,
order or regulation, whether said tax is imposed at the time of recording or
subsequent thereto. This obligation shall survive the satisfaction or other
termination of this Mortgage.
9. Sale in One Parcel. In the event of a foreclosure of this Mortgage
or any mortgage at any time consolidated with this Mortgage, Mortgagor agrees
that Mortgagee shall be entitled to a judgment directing the referee appointed
in the foreclosure proceeding to sell all of the parcels constituting the
Mortgaged Property at one foreclosure sale, either as a group or separately and
that the Mortgagor expressly waives any right that it may now have or hereafter
acquire to (i) request or require that the parcels be sold separately or (ii)
request, if Mortgagee has elected to sell parcels separately, that there be a
determination of any deficiency amount after any such separate sale or otherwise
require a calculation of whether said parcel or parcels separately sold were
conveyed for their "fair market value".
10. Condemnation. (a) Mortgagor shall promptly give Mortgagee written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding (a "Condemnation") and shall deliver to Mortgagee copies of
any and all papers served in connection with such Condemnation. Following the
occurrence of a Condemnation, Mortgagor, regardless of whether an Award
(hereinafter defined) is available, shall promptly proceed to restore, repair,
replace or rebuild the same to the extent practicable to be of at least equal
value and of substantially the same character as prior to such Condemnation, all
to be effected in accordance with applicable law.
(b) Mortgagee is hereby irrevocably appointed as Mortgagor's
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any award or payment ("Award") for any taking accomplished
through a Condemnation (a "Taking") and to make any compromise or settlement in
connection with such Condemnation, subject to the provisions of this Mortgage.
Notwithstanding any Taking by any public or quasi-public authority (including,
without limitation, any transfer made in lieu of or in anticipation of such a
Taking), Mortgagor shall continue to pay the Indebtedness at the time and in the
manner provided for in the Notes, and the Indebtedness shall not be reduced
unless and until any Award shall have been actually received and applied by
Mortgagee to expenses of collecting the Award and by Secured Parties to the
discharge of the Indebtedness. Mortgagor shall cause any Award that is payable
to Mortgagor to be paid directly to Mortgagee.
11. Maintenance and Use of Mortgaged Property. Mortgagor shall cause
the Mortgaged Property to be maintained in a good and safe condition and repair.
The Improvements and the Equipment shall not be removed, demolished or
materially altered (except for normal replacement of the Equipment in the
ordinary course of business) without the consent of Mortgagee. Mortgagor shall
promptly comply with all laws, orders and ordinances affecting the Mortgaged
Property, or its use of the Mortgaged Property. Mortgagor shall not initiate,
join in, acquiesce in, or consent to any change in any private restrictive
covenant, zoning law or other public or private restriction, limiting or
defining the uses which may be made of the Mortgaged Property or any part
thereof. If under applicable zoning provisions the use of all or any portion of
the Mortgaged Property is or shall become a nonconforming use, Mortgagor will
not cause or permit such nonconforming use to be discontinued or abandoned
without the express written consent of Mortgagor. Mortgagor shall not (i) change
the use of the Mortgaged Property, (ii) permit or suffer to occur any waste on
or to the Mortgaged Property or to any portion thereof or (iii) take any steps
whatsoever to convert the Mortgaged Property, or any portion thereof, to a
condominium or cooperative form of management. Mortgagor will not install or
permit to be installed on the Premises any underground storage tank.
12. Transfer or Encumbrance of the Mortgaged Property.
(a) Mortgagor shall not, without the prior written consent of
Mortgagee, sell, convey, alienate, mortgage, encumber, pledge or otherwise
transfer the Mortgaged Property or any part thereof, or
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permit the Mortgaged Property or any part thereof to be sold, conveyed,
alienated, mortgaged, encumbered, pledged or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge
or transfer within the meaning of this Paragraph 12 shall be deemed to include
(i) an installment sales agreement wherein Mortgagor agrees to sell the
Mortgaged Property or any part thereof for a price to be paid in installments;
(ii) an agreement by Mortgagor leasing all or a substantial part of the
Mortgaged Property; and (iii) a sale, assignment or other transfer of, or the
grant of a security interest in, Mortgagor's right, title and interest in and to
any leases or any rents.
(c) Mortgagee shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Indebtedness immediately due and payable upon Mortgagor's sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property without Mortgagee's consent. This provision shall apply to
every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the Mortgaged Property regardless of whether voluntary or not, or whether or not
Mortgagee has consented to any previous sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be
deemed to be a waiver of Mortgagee's right to require such consent to any future
occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property made in contravention of this
paragraph shall be null and void and of no force and effect.
(e) Mortgagee may withhold its consent in its sole discretion.
13. Books and Records. Mortgagor shall keep and maintain at all times
at Mortgagor's address stated in this Mortgage, or such other place as Mortgagee
may approve in writing, complete and accurate books of accounts and records
adequate to reflect correctly the results of the operation of the Mortgaged
Property and copies of all written contracts, leases and other instruments which
affect the Mortgaged Property. Such books, records, contracts, leases and other
instruments shall be subject to examination and inspection at any reasonable
time by Mortgagee, at Mortgagee's expense upon five (5) days prior notice, at
Mortgagor's office.
14. Estoppel Certificates and No Default Affidavits. After request by
Mortgagee, Mortgagor shall within ten (10) days furnish Mortgagee with a
statement, duly acknowledged and certified, setting forth (i) the amount of the
original principal amount of the Notes, (ii) the unpaid principal amount of the
Notes, (iii) the rate of interest of the Notes, (iv) the date installments of
interest and/or principal were last paid, (v) any offsets or defenses to the
payment of the Indebtedness, if any, (vi) that the Notes, this Mortgage and the
other Transaction Documents are valid, legal and binding obligations and have
not been modified or if modified, giving particulars of such modification; and
(vii) reaffirming all representations and warranties of Mortgagor set forth
herein and in the other Transaction Documents as of the date requested by
Mortgagee or, to the extent of any changes to any such representations and
warranties, so stating such changes.
15. Usury. It is expressly stipulated and agreed to be the intent of
Mortgagor, and Mortgagee at all times to comply with applicable state usury law
or applicable United States federal usury law (to the extent that it permits
Mortgagee to contract for, charge, take, reserve, or receive a greater amount of
interest than under state law). If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under the
Notes or under any of the other Transaction Documents, or contracted for,
charged, taken, reserved, or received with respect to the Indebtedness, or if
Secured Parties' exercise of the option to accelerate the maturity of the Notes,
or if any prepayment by Mortgagor results in Mortgagor having paid any interest
in excess of that permitted by applicable law, then it is Mortgagor's and
Mortgagee's express intent that all excess amounts theretofore collected shall
be credited on the principal balance of the Notes and all other Indebtedness
(or, if the Notes and all other Indebtedness have been or would thereby be paid
in full, refunded to Mortgagor), and the provisions of the Notes and the other
Transaction Documents immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new
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documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
16. Performance of Other Agreements. Mortgagor shall observe and
perform each and every term to be observed or performed by Mortgagor pursuant to
the terms of any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
17. Further Acts, Etc. Mortgagor will, at the cost of Mortgagor, and
without expense to Mortgagee, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements or continuation
statements, transfers and assurances as Mortgagee shall, from time to time,
require, for the better assuring, conveying, assigning, transferring, and
confirming unto Mortgagee the property and rights hereby deeded, mortgaged,
given, granted, bargained, sold, alienated, conveyed, confirmed, pledged,
assigned and hypothecated or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage or for filing, registering or recording this Mortgage.
Mortgagor, on demand, will execute and deliver and hereby authorizes Mortgagee
to execute in the name of Mortgagor or without the signature of Mortgagor to the
extent Mortgagee may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence more effectively the security
interest of Mortgagee in the Mortgaged Property. Upon foreclosure, the
appointment of a receiver or any other relevant action, Mortgagor will, at the
cost of Mortgagor and without expense to Mortgagee, cooperate fully and
completely to effect the assignment or transfer of any license, permit,
agreement or any other right necessary or useful to the operation of or the
Mortgaged Property. Mortgagor grants to Mortgagee an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Mortgagee at law and in equity,
including, without limitation, such rights and remedies available to Mortgagee
pursuant to this paragraph.
18. Recording of Mortgage, Etc. Mortgagor forthwith upon the execution
and delivery of this Mortgage and thereafter, from time to time, will cause this
Mortgage, and any security instrument creating a lien or security interest or
evidencing the lien hereof upon the Mortgaged Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all
filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state, county
and municipal, taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do. Mortgagor shall hold harmless and indemnify Mortgagee, its successors
and assigns, against any liability incurred by reason of the imposition of any
tax on the making and recording of this Mortgage.
19. Reporting Requirements. Mortgagor agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the insolvency
or bankruptcy filing of any guarantor of the Indebtedness.
20. Events of Default. The Indebtedness under the Notes shall become
immediately due and payable at the option of Mortgagee upon the happening of any
one or more of the following events of default (each an "Event of Default"):
(a) an Event of Default shall have occurred under any of the
Notes or under any Transaction Document;
(b) if any of the taxes or other charges are not paid when the
same are due and payable;
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(c) if the Insurance Policies are not kept in full force and
effect, or if the Insurance Policies are not delivered to Mortgagee upon
request;
(d) if Mortgagor transfers or encumbers any portion of the
Mortgaged Property without Mortgagee's prior written consent;
(e) if any representation or warranty of Mortgagor made herein or
in any certificate, report, or other instrument or document furnished to
Mortgagor hereunder shall have been false or misleading in any material respect
when made;
(f) if Mortgagor shall be in default under any other mortgage or
security agreement covering any part of the Mortgaged Property whether it be
superior or junior in lien to this Mortgage;
(g) if the Mortgaged Property becomes subject to any mechanic's,
materialman's or other lien and such lien is not removed of record within thirty
(30) days of the filing or recording of such lien (except a lien for local real
estate taxes and assessments not then due and payable);
(h) if Mortgagor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property within thirty (30) days after Oneida first receives notice of any such
violations;
(i) except as expressly permitted in this Mortgage, the
alteration, improvement, demolition or removal of any of the Improvements
without the prior consent of Mortgagee;
(j) if Mortgagor fails to cure a default under any other term,
covenant or provision of this Mortgage within thirty (30) days after Mortgagee
gives notice of any such default; or
(k) an Event of Default shall have occurred under any other
mortgage given by the Mortgagor to the Mortgagee.
21. Right To Cure Defaults. Upon the occurrence of any Event of
Default or if Mortgagor fails to make any payment (including, without
limitation, any required payments for taxes, insurance or to discharge any liens
with respect to the Property) or to do any act as herein provided, Mortgagee
may, but without any obligation to do so and without notice to or demand on
Mortgagor and without releasing Mortgagor from any obligation hereunder, make or
do the same in such manner and to such extent as Mortgagee may deem necessary to
protect the security hereof. Mortgagee is authorized to enter upon the Mortgaged
Property for such purposes or appear in, defend, or bring any action or
proceeding to protect its interest in the Mortgaged Property or to foreclose
this Mortgage, and the cost and expense thereof (including reasonable attorneys'
fees and disbursements to the extent permitted by law), with interest at the
highest rate provided in the Notes for the period after notice from Mortgagee
that such cost or expense was incurred to the date of payment, shall constitute
a portion of the Indebtedness, subject to the limitations contained in the
definition of Secured Indebtedness hereabove set forth, shall be secured by this
Mortgage and shall be due and payable upon demand.
22. Additional Remedies.
(a) Upon the occurrence of any Event of Default, Mortgagee may
take such action, without notice or demand, as it deems advisable to protect and
enforce its rights against Mortgagor and in and to the Mortgaged Property by
Mortgagee itself or otherwise, and Mortgagee and the Secured Parties may take
the following additional actions, each of which may be pursued concurrently or
otherwise, at such time and in such order as they may determine, in their sole
discretion, without impairing or otherwise affecting their other rights and
remedies:
(i) declare the entire Indebtedness to be immediately due
and payable;
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(ii) institute a proceeding or proceedings, judicial or
nonjudicial, by advertisement or otherwise, for the complete foreclosure of this
Mortgage in which case the Mortgaged Property or any interest therein may be
sold for cash or upon credit in one or more parcels or in several interests or
portions and in any order or manner, reserving Mortgagee's right to seek a
deficiency judgment against Mortgagor;
(iii) with or without entry, to the extent permitted and
pursuant to the procedures provided by applicable law, institute proceedings for
the partial foreclosure of this Mortgage for the portion of the Indebtedness
then due and payable, subject to the continuing lien of this Mortgage for the
balance of the Indebtedness not then due;
(iv) sell for cash or upon credit the Mortgaged Property or
any part thereof and all estate, claim, demand, right, title and interest of
Mortgagor therein and rights of redemption thereof, pursuant to the power of
sale contained herein or otherwise, at one or more sales, as an entirety or in
parcels, at such time and place, upon such terms and after such notice thereof
as may be required or permitted by law;
(v) institute an action, suit or proceeding in equity for
the specific performance of any covenant, condition or agreement contained
herein, or in any of the other Transaction Documents;
(vi) recover judgment on the Notes either before, during or
after any proceedings for the enforcement of this Mortgage;
(vii) apply for the appointment of a trustee, receiver,
liquidator or conservator of the Mortgaged Property, without notice and without
regard for the adequacy of the security for the Debt and without regard for the
solvency of Mortgagor, any Guarantor or of any person, firm or other entity
liable for the payment of the Debt;
(viii) sell all or any portion of the Mortgaged Property
pursuant to Article 14 of New York's Real Property Actions and Proceedings Law;
and
(ix) pursue such other rights and remedies as may be
available at law or in equity or under the Uniform Commercial Code including
without limitation the right to receive Rents and any other receivables or
rights to payments of Mortgagor relating to the Mortgaged Property.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Mortgage shall continue as a lien on the remaining
portion of the Mortgaged Property.
(b) The proceeds of any sale made under or by virtue of this
paragraph, together with any other sums which then may be held by Mortgagee
under this Mortgage, whether under the provisions of this paragraph or
otherwise, shall be applied by Mortgagee to the payment of the Indebtedness in
the manner set forth in the Collateral Agent Agreement.
(c) Mortgagee may adjourn from time to time any sale by it to be
made under or by virtue of this Mortgage by announcement at the time and place
appointed for such sale or for such adjourned sale or sales; and, except as
otherwise provided by any applicable provision of law, Mortgagee, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
(d) Upon the completion of any sale or sales pursuant hereto,
Mortgagee, or an officer of any court empowered to do so, shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and
rights sold. Mortgagee is hereby irrevocably appointed the true and lawful
attorney of Mortgagor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so
sold and for that purpose Mortgagee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Mortgagor hereby ratifying and confirming all that its said attorney
or such substitute or substitutes shall lawfully do
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by virtue hereof. Any sale or sales made under or by virtue of this paragraph,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale, shall
operate to divest all the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of Mortgagor in and to the properties
and rights so sold, and shall be a perpetual bar both at law and in equity
against Mortgagor and against any and all persons claiming or who may claim the
same, or any part thereof from, through or under Mortgagor.
(e) Upon any sale made under or by virtue of this paragraph,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof and
in lieu of paying cash therefor may make settlement for the purchase price by
crediting upon the Indebtedness the net sales price after deducting therefrom
the expenses of the sale and costs of the action and any other sums which
Mortgagee is authorized to deduct under this Mortgage.
(f) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect in any manner or to any extent the lien of
this Mortgage upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Mortgagee hereunder, but such liens, rights,
powers and remedies of Mortgagee shall continue unimpaired as before.
(g) Mortgagee may terminate or rescind any proceeding or other
action brought in connection with its exercise of the remedies provided in this
paragraph at any time before the conclusion thereof, as determined in
Mortgagee's sole discretion and without prejudice to Mortgagee.
(h) Mortgagee and the Secured Parties may resort to any remedies
and the security given by the Notes, this Mortgage or the Transaction Documents
in whole or in part, and in such portions and in such order as determined by
their sole discretion. No such action shall in any way be considered a waiver of
any rights, benefits or remedies evidenced or provided by the Notes, this
Mortgage or any of the other Transaction Documents. The failure to exercise any
right, remedy or option provided in the Notes, this Mortgage or any of the other
Transaction Documents shall not be deemed a waiver of such right, remedy or
option or of any covenant or obligation secured by the Notes, this Mortgage or
the other Transaction Documents. No acceptance by Secured Parties of any payment
after the occurrence of any Event of Default and no payment by Mortgagee of any
obligation for which Mortgagor is liable hereunder shall be deemed to waive or
cure any Event of Default with respect to Mortgagor, or Mortgagor's liability to
pay such obligation. No sale of all or any portion of the Mortgaged Property, no
forbearance on the part of Mortgagee, and no extension of time for the payment
of the whole or any portion of the Indebtedness or any other indulgence given by
Mortgagee to Mortgagor, shall operate to release or in any manner affect the
interest of Mortgagee in the remaining Mortgaged Property or the liability of
Mortgagor to pay the Indebtedness. No waiver by Mortgagee shall be effective
unless it is in writing and then only to the extent specifically stated. All
costs and expenses of Mortgagee in exercising the rights and remedies under this
Paragraph 22 (including reasonable attorneys' fees and disbursements to the
extent permitted by law), shall be paid by Mortgagor immediately upon notice
from Mortgagee, with interest at the highest rate provided in any of the Notes
for the period after notice from Mortgagee and, subject to the limitations
contained in the definition of Secured Indebtedness hereabove set forth, such
costs and expenses shall constitute a portion of the Indebtedness and shall be
secured by this Mortgage.
(i) The interests and rights of Mortgagee under this Mortgage or
in any of the other Transaction Documents shall not be impaired by any
indulgence, including (i) any renewal, extension or modification which any
Secured Party may grant with respect to any of the Indebtedness, (ii) any
surrender, compromise, release, renewal, extension, exchange or substitution
which Mortgagee may grant with respect to the Mortgaged Property or any portion
thereof; or (iii) any release or indulgence granted to any maker, endorser,
guarantor or surety of any of the Indebtedness.
(j) The rights and remedies herein afforded to Mortgagee and the
Secured Parties shall be cumulative and supplementary to and not exclusive of
any other rights and remedies afforded the Mortgagee and Secured Parties.
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23. Right of Entry. In addition to any other rights or remedies
granted under this Mortgage, Mortgagee, and its agents, during the Term, shall
have the right to enter and inspect the Mortgaged Property during normal
business hours. The cost of such inspections or audits shall be borne by
Mortgagor, including the cost of all follow up or additional investigations or
inquiries deemed reasonably necessary by Mortgagee. The cost of such
inspections, if not paid for by Mortgagor following demand, shall bear interest
thereafter until paid at the highest rate set forth in any of the Notes.
24. Security Agreement.
(a) This Mortgage is both a real property mortgage and a
"security agreement" within the meaning of the Uniform Commercial Code. The
Mortgaged Property includes both real and personal property and all other rights
and interests, whether tangible or intangible in nature, of Mortgagor in the
Mortgaged Property. Mortgagor, by executing and delivering this Mortgage, has
granted and hereby grants to Mortgagee, as security for the Indebtedness, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this paragraph the "Collateral"). This Mortgage shall also constitute a
"fixture filing" for the purposes of the Uniform Commercial Code. As such, this
Mortgage covers all items of the Collateral that are or are to become fixtures.
Information concerning the security interest herein granted may be obtained from
the parties at the addresses of the parties set forth in the first paragraph of
this Mortgage.
(b) If an Event of Default shall occur, Mortgagee, in addition to
any other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof, and to take such other measures as Mortgagee may
deem necessary for the care, protection and preservation of the Collateral. Upon
request or demand of Mortgagee, Mortgagor shall at its expense assemble the
Collateral and make it available to Mortgagee at a convenient place acceptable
to Mortgagee. Mortgagor shall pay to Mortgagee on demand any and all expenses,
including attorneys' fees and disbursements, incurred or paid by Mortgagee in
protecting the interest in the Collateral and in enforcing the rights hereunder
with respect to the Collateral. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Collateral sent to Mortgagor in
accordance with the provisions hereof at least ten (10) days prior to such
action, shall constitute commercially reasonable notice to Mortgagor. The
proceeds of any disposition of the Collateral, or any part thereof, shall be
applied by Mortgagee to the payment of the Indebtedness in such manner as may be
provided in the Collateral Agency Agreement. In the event of any change in name,
identity or structure of any Mortgagor, such Mortgagor shall notify Mortgagee
thereof and promptly after request shall file and record such Uniform Commercial
Code forms as are necessary to maintain the priority of Mortgagee's lien upon
and security interest in the Collateral, and Mortgagor shall pay all expenses
and fees in connection with the filing and recording thereof. If Mortgagee shall
require the filing or recording of additional Uniform Commercial Code forms or
continuation statements, Mortgagor shall, at Mortgagor's expense, promptly after
request, file and record such Uniform Commercial Code forms or continuation
statements as Mortgagee shall deem necessary, and Mortgagor shall pay all
expenses and fees in connection with the filing and recording thereof. Mortgagor
hereby irrevocably appoints Mortgagee as its attorney-in-fact, coupled with an
interest, to file with the appropriate public office on its behalf any financing
or other statements signed only by Mortgagee, as secured party, in connection
with the Collateral covered by this Mortgage.
25. Waiver of Setoff and Counterclaim. All amounts due under this
Mortgage, the Notes and the other Transaction Documents shall be payable without
setoff, counterclaim or any deduction whatsoever. Mortgagor hereby waives the
right to assert a setoff, counterclaim (other than a mandatory or compulsory
counterclaim) or deduction in any action or proceeding in which Mortgagee is a
participant, or arising out of or in any way connected with this Mortgage, the
Notes, any of the other Transaction Documents or the Indebtedness.
26. Recovery of Sums Required to be Paid. The Secured Parties shall
have the right from time to time to take action to recover any sum or sums which
constitute a part of the Indebtedness as the same become due, without regard to
whether or not the balance of the Indebtedness shall be due, and without
prejudice to
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the right of Mortgagee thereafter to bring an action of foreclosure, or any
other action, for a default or defaults by Mortgagor existing at the time such
earlier action was commenced.
27. Marshalling and Other Matters. Mortgagor hereby waives, to the
extent permitted by law, the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Mortgaged
Property or any part thereof or any interest therein. Further, Mortgagor hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Mortgage on behalf of Mortgagor, and on behalf of
each and every person acquiring any interest in or title to the Mortgaged
Property subsequent to the date of this Mortgage and on behalf of all persons to
the extent permitted by applicable law.
28. Hazardous Substances. Mortgagor hereby represents and warrants to
Mortgagee that, to the best of Mortgagor's knowledge, after due inquiry and
investigation except as disclosed on Exhibit B annexed hereto: (a) the Mortgaged
Property is not in direct or indirect violation of any local, state, federal or
other governmental authority, statute, ordinance, code, order, decree, law, rule
or regulation pertaining to or imposing liability or standards of conduct
concerning environmental regulation, contamination or clean-up including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended ("CERCLA"), the Resource Conservation and Recovery
Act, as amended ("RCRA"), the Emergency Planning and Community Right-to-Know Act
of 1986, as amended, the Hazardous Substances Transportation Act, as amended,
the Solid Waste Disposal Act, as amended, the Clean Water Act, as amended, the
Clean Air Act, as amended, the Toxic Substance Control Act, as amended, the Safe
Drinking Water Act, as amended, the Occupational Safety and Health Act, as
amended, New York's Navigation Law, and any state super-lien and environmental
clean-up statutes and all rules and regulations adopted in respect to the
foregoing laws whether presently in force or coming into being and/or
effectiveness hereafter (collectively, "Environmental Laws"); (b) the Mortgaged
Property is not subject to any private or governmental lien or judicial or
administrative notice or action or inquiry, investigation or claim relating to
hazardous and/or toxic, dangerous and/or regulated, substances, wastes,
materials, raw materials which include hazardous constituents, pollutants or
contaminants including without limitation, petroleum, tremolite, anthlophylie,
actinolite or polychlorinated biphenyls and any other substances or materials
which are included under or regulated by Environmental Laws or which are
considered by scientific opinion to be otherwise dangerous in terms of the
health, safety and welfare of humans (collectively, "Hazardous Substances"); (c)
no Hazardous Substances are or have been (including the period prior to
Mortgagor's acquisition of the Mortgaged Property) discharged, generated,
treated, disposed of or stored on, incorporated in, or removed or transported
from the Mortgaged Property other than in compliance with all Environmental Laws
and other than releases of Hazardous Substances which have been remediated in
compliance with applicable Environmental Laws; (d) no Hazardous Substances are
present in, on or under any nearby real property which could migrate to or
otherwise affect the Mortgaged Property; and (e) no underground storage tanks
exist on any of the Mortgaged Property. So long as Mortgagor owns any interest
in or is in possession of the Mortgaged Property, Mortgagor (i) shall keep or
cause the Mortgaged Property to be kept free from Hazardous Substances and in
compliance with all Environmental Laws, (ii) shall promptly notify Mortgagee if
Mortgagor shall become aware of any Hazardous Substances on or near the
Mortgaged Property and/or if Mortgagor shall become aware that the Mortgaged
Property is in direct or indirect violation of any Environmental Laws and/or if
Mortgagor shall become aware of any condition on or near the Mortgaged Property
which shall pose a threat to the health, safety or welfare of humans, and (iii)
Mortgagor shall remove such Hazardous Substances and/or cure such violations
and/or remove such threats, as applicable, as required by law (or as shall be
required by Mortgagor in the case of removal which is not required by law, but
in response to the opinion of a licensed hydrogeologist, licensed environmental
engineer or other qualified consultant engaged by Mortgagee ("Mortgagee's
Consultant")), promptly after Mortgagor becomes aware of same, at Mortgagor's
sole expense. Notwithstanding anything to the contrary in this paragraph,
Mortgagor and/or tenants on the Mortgaged Property may use and store immaterial
amounts of Hazardous Substances at the Mortgaged Property if such use or storage
is in connection with the ordinary cleaning and maintenance of the Mortgaged
Property so long as such use and storage does not violate any applicable
Environmental Laws. Nothing herein shall prevent Mortgagor from recovering such
expenses from any other party that may be liable for such removal or cure. The
obligations and liabilities of Mortgagor under this Paragraph 28 shall survive
any termination, satisfaction, or assignment of this Mortgage and the exercise
by Mortgagee of any of its rights or remedies hereunder, including, without
limitation, the acquisition of the Mortgaged Property by foreclosure or a
conveyance in lieu of foreclosure.
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29. Asbestos. Mortgagor represents and warrants that, to the best of
Mortgagor's knowledge, after due inquiry and investigation, no asbestos or any
substance or material containing asbestos ("Asbestos") is located on the
Mortgaged Property except as may have been disclosed on Exhibit B. Mortgagor
shall not install in the Mortgaged Property, nor permit to be installed in the
Mortgaged Property, Asbestos and shall remove any Asbestos promptly upon
discovery to the satisfaction of Mortgagee, at Mortgagor's sole expense.
Mortgagor shall in all instances comply with, and ensure compliance by all
occupants of the Mortgaged Property with, all applicable federal, state and
local laws, ordinances, rules and regulations with respect to Asbestos, and
shall keep the Mortgaged Property free and clear of any liens imposed pursuant
to such laws, ordinances, rules or regulations. In the event that Mortgagor
receives any notice or advice from any governmental agency or any source
whatsoever with respect to Asbestos on, affecting or installed on the Mortgaged
Property, Mortgagor shall immediately notify Mortgagee. The obligations and
liabilities of Mortgagor under this Paragraph 29 shall survive any termination,
satisfaction, or assignment of this Mortgage and the exercise by Mortgagee of
any of its rights or remedies hereunder, including but not limited to, the
acquisition of the Mortgaged Property by foreclosure or a conveyance in lieu of
foreclosure.
30. Environmental Monitoring. Mortgagor shall give prompt written
notices to Mortgagee of: (a) any proceeding or inquiry by any party with respect
to the presence of any Hazardous Substance or Asbestos on, under, from or about
the Mortgaged Property, (b) all claims made or threatened by any third party
against Mortgagor or the Mortgaged Property relating to any loss or injury
resulting from any Hazardous Substance or Asbestos, and (c) Mortgagor's
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of the Mortgaged Property that could cause the Mortgaged Property
to be subject to any investigation or cleanup pursuant to any Environmental Law.
Mortgagor shall permit Mortgagee to join and participate in, as a party if it so
elects, any legal proceedings or actions initiated with respect to the Mortgaged
Property in connection with any Environmental Law or Hazardous Substance, and
Mortgagor shall pay all attorneys' fees and disbursements incurred by Mortgagee
in connection therewith. Upon Mortgagee's request, at any time after the
occurrence of an Event of Default or at such other time Mortgagee has determined
(in the exercise of its good faith judgment) that reasonable cause exists for
the performance of an environmental inspection or audit of the Mortgaged
Property, Mortgagor shall provide at Mortgagor's sole expense, (i) an inspection
or audit of the Mortgaged Property prepared by a licensed hydrogeologist or
licensed environmental engineer approved by Mortgagee indicating the presence or
absence of Hazardous Substances on, in or near the Mortgaged Property, and (ii)
an inspection or audit of the Mortgaged Property prepared by a duly qualified
engineering or consulting firm approved by Mortgagee, indicating the presence or
absence of Asbestos on the Mortgaged Property. If Mortgagor fails to provide
such inspection or audit within thirty (30) days after such request Mortgagee
may order same, and Mortgagor hereby grants to Mortgagee and its employees and
agents access to the Mortgaged Property and a license to undertake such
inspection or audit. The cost of such inspection or audit shall be paid by
Mortgagor on demand and shall bear interest thereafter until paid at the highest
rate provided in any of the Notes. In the event that any environmental site
assessment report prepared in connection with such inspection or audit
recommends that an operations and maintenance plan be implemented for Asbestos
or any Hazardous Substance, Mortgagor shall cause such operations and
maintenance plan to be prepared and implemented at Mortgagor's expense upon
request of Mortgagee. In the event that any investigation, site monitoring,
containment cleanup, removal, restoration, or other work of any kind is
reasonably necessary or desirable under an applicable Environmental Law (the
"Remedial Work"), Mortgagor shall commence and thereafter diligently prosecute
to completion all such Remedial Work within thirty (30) days after written
demand by Mortgagee for performance thereof (or any such shorter period of time
as may be required under applicable law.) All Remedial Work shall be performed
by contractors approved in advance by Mortgagee, and under the supervision of a
consulting engineer approved by Mortgagee. All costs and expenses of such
Remedial Work shall be paid by Mortgagor including, without limitation,
Mortgagee's reasonable attorneys' fees and disbursements incurred in connection
with monitoring or review of such Remedial Work. In the event Mortgagor shall
fail to timely commence, or cause to be commenced, or fail to diligently
prosecute to completion, such Remedial Work, Mortgagee may, but shall not be
required to, cause such Remedial Work to be performed, and all costs and
expenses thereof, or incurred in connection therewith, shall be paid by
Mortgagor on demand and shall bear interest thereafter until paid at the highest
rate provided in any of the Notes.
31. Indemnification. In addition to any other indemnifications
provided herein or in the other Transaction Documents, Mortgagor shall protect,
defend, indemnify and save harmless Mortgagee from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs and
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expenses (including, without limitation, reasonable attorneys' fees and
disbursements), imposed upon or incurred by or asserted against Mortgagee by
reason of (a) this Mortgage, the Mortgaged Property or any interest therein or
receipt of any Rents; (b) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Mortgaged Property or any
part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (c) any use, nonuse or condition in, on or about
the Mortgaged Property or any part thereof or on adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (d) any failure on
the part of Mortgagor to perform or comply with any of the terms of this
Mortgage; (e) performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof; (f) the presence, disposal, escape, seepage, leakage, spillage,
discharge, emission, release, or threatened release of any Hazardous Substance
or Asbestos on, from, or affecting the Mortgaged Property; (g) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Substance or Asbestos; (h) any claim brought
or threatened, settlement reached, or government order relating to such
Hazardous Substance or Asbestos; (i) any violation of the Environmental Laws,
which are based upon or in any way related to such Hazardous Substance or
Asbestos including, without limitation, the costs and expenses of any Remedial
Work, attorney and consultant fees and disbursements, investigation and
laboratory fees, court costs, and litigation expenses; and (j) any
representation or warranty made in the Notes, this Mortgage or any of the other
Transaction Documents being false or misleading in any material respect as of
the date such representation or warranty was made. Subject to the limitations
contained in the definition of Secured Indebtedness hereinabove defined, any
amounts payable to Mortgagee by reason of the application of this paragraph
shall be secured by this Mortgage and shall become immediately due and payable
and shall bear interest at the highest rate provided in any of the Notes from
the date loss or damage is sustained by Mortgagee until paid. The obligations
and liabilities of Mortgagor under this Paragraph 31 shall survive any
termination, satisfaction, or assignment of this Mortgage and the exercise by
Mortgagee of any of its rights or remedies hereunder, including, but not limited
to, the acquisition of the Mortgaged Property by foreclosure or a conveyance in
lieu of foreclosure.
A waiver of subrogation shall be obtained by Mortgagor from its
insurance carrier and, consequently, Mortgagor waives any and all right to claim
or recover against Mortgagee, its officers, employees, agents and
representatives, for loss of or damage to Mortgagor , the Mortgaged Property,
Mortgagor's property or the property of others under Mortgagor's control from
any cause insured against or required to be insured against by the provisions of
this Mortgage.
32. Notices. Any notice, report, demand or other instrument authorized
or required to be given or furnished ("Notices") shall be in writing and shall
be given as follows: (a) by hand delivery; (b) by deposit in the United States
mail as first class certified mail, return receipt requested, postage paid; (c)
by overnight nationwide commercial courier service; or (d) by telecopy
transmission (other than for notices of default) with a confirmation copy to be
delivered by duplicate notice in accordance with any of clauses (a)- (c) above,
in each case, addressed to the party intended to receive the same at the
following address(es):
Mortgagee: JPMorgan Chase Bank
Bridgewater Place
500 Plum Street
Syracuse, New York 13204
Attn: Joseph H. Oddo, Jr.
Telecopy No.: (315) 424-1898
with a copy to: Joseph Zagraniczny, Esq.
Bond, Schoeneck & King, PLLC
One Lincoln Center
Syracuse, New York 13202-1355
Telecopy No. (315) 218-8100
Mortgagor: Oneida Ltd.
163-181 Kenwood Avenue
Oneida, New York 13241
Attn: Gregg R. Denny, Chief Financial Officer
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Telecopy No.: (315) 361-3700
with a copy to: Oneida Ltd.
Legal Department
163-181 Kenwood Avenue
Oneida, New York 13421
Attn: Catherine H. Suttmeier, General Counsel
Telecopy No. (315) 361-3700
Any party may change the address to which any such Notice is to be
delivered, by furnishing ten (10) days written notice of such change to the
other parties in accordance with the provisions of this Paragraph 32. Notices
shall be deemed to have been given on the date they are actually received;
provided, that the inability to deliver Notices because of a changed address of
which no Notice was given, or rejection or refusal to accept any Notice offered
for delivery shall be deemed to be receipt of the Notice as of the date of such
inability to deliver or rejection or refusal to accept delivery. Notice for
either party may be given by its respective counsel.
33. Waiver of Notice. Mortgagor shall not be entitled to any notices
of any nature whatsoever from Mortgagee except with respect to matters for which
this Mortgage specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and Mortgagor hereby expressly waives
the right to receive any notice from Mortgagee with respect to any matter for
which this Mortgage does not specifically and expressly provide for the giving
of notice by Mortgagee to Mortgagor.
34. Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage,
Mortgagee exercises any right given to it to consent or not consent or approve
or disapprove, or any arrangement or term is to be satisfactory to Mortgagee,
the decision of Mortgagee to consent or not consent, to approve or disapprove or
to decide that arrangements or terms are satisfactory or not satisfactory shall
be in the sole discretion of Mortgagee (subject to obtaining the consent of the
Secured Parties if required by the terms of the Collateral Agent Agreement or
any of the Transaction Documents) and shall be final and conclusive, except as
may be otherwise expressly and specifically provided herein.
35. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of (a) the failure of Mortgagee or Secured Parties to comply
with any request of Mortgagor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Notes, or the other
Transaction Documents, (b) the release, regardless of consideration, of the
whole or any part of the Mortgaged Property, or of any person liable for the
Indebtedness or any portion thereof, or (c) any agreement or stipulation by
Mortgagee or Secured Parties extending the time of payment or otherwise
modifying or supplementing the terms of the Notes, this Mortgage or any of the
other Transaction Documents. Mortgagee and the Secured Parties may resort for
the payment of the Indebtedness to any other security held by them in such order
and manner as they, in their sole discretion, may elect. Mortgagee and the
Secured Parties may take action to recover the Indebtedness, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Mortgagee thereafter to foreclosure this Mortgage. The rights and remedies of
Mortgagee under this Mortgage shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Mortgagee
or the Secured Parties shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provision. Mortgagee and the
Secured Parties shall not be limited exclusively to the rights and remedies
herein stated but shall be entitled to every right and remedy now or hereafter
afforded at law or in equity.
36. No Oral Change. This Mortgage, and any provisions hereof, may not
be modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of Mortgagor or Mortgagee, but only
by an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
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37. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Mortgaged Property, this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Mortgagee and their respective successors
and assigns forever.
38. Inapplicable Provisions. If any term, covenant or condition of
this Mortgage is held to be invalid, illegal or unenforceable in any respect,
this Mortgage shall be construed without such provision.
39. Headings, Etc. The headings and captions of various paragraphs of
this Mortgage are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
40. Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage may be used interchangeably in singular or plural form and the word
"Mortgagor" shall mean "each Mortgagor and any subsequent owner or owners of the
Mortgaged Property or any part thereof or any interest therein," the word
"Mortgagee" shall mean "Mortgagee and any subsequent Collateral Agent under the
Collateral Agent Agreement," the word "Notes" shall mean "any of the Notes and
any other evidence of indebtedness secured by this Mortgage," the word "person"
shall include an individual, corporation, partnership, trust, unincorporated
association, government, governmental authority, and any other entity, and the
words "Mortgaged Property" shall include any portion of the Mortgaged Property
and any interest therein and the words "attorneys' fees" shall include any and
all attorneys' fees, paralegal and law clerk fees, including, without
limitation, fees at the pre-trial, trial and appellate levels incurred or paid
by Mortgagee in protecting its interest in the Mortgaged Property and Collateral
and enforcing its rights hereunder. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
41. Actions and Proceedings. If any action or proceeding be commenced
to which action or proceeding Mortgagee is made a party and in which it becomes
necessary in the opinion of Mortgagee to defend or uphold the lien of this
Mortgage, all sums paid by Mortgagee for the expense of any litigation to
prosecute and defend the rights and lien created by this Mortgage, including
reasonable counsel fees, costs and allowances, shall, together with interest
thereon be a lien on the Mortgaged Property and, subject to the limitations
contained in the definition of Secured Indebtedness hereinabove set forth,
secured by this Mortgage and shall be collectible in like manner as said
indebtedness and shall be paid by Mortgagor upon receipt of an invoice from
Mortgagee.
42. Leases of the Mortgaged Property. Mortgagor will not enter into
any lease(s) for all or any portion of the Mortgaged Property without the prior
written consent of Mortgagee.
43. Real Property Law. All covenants hereof, which are in addition to
those set forth in Sections 254 and 291-f of the Real Property Law, shall be
construed as affording to Mortgagee rights additional to, and not exclusive of,
the rights conferred under the provisions of said Sections 254 and 291-f.
44. Successors. All of the provisions of this Mortgage shall inure to
the benefit of Mortgagee and of any subsequent holder of this Mortgage and shall
be binding upon Mortgagor and each subsequent owner of the Mortgaged Property.
45. Effect of Releases. Mortgagee and the Secured Parties, without
notice, may release any part of the security described herein, or any person or
entity liable for any Indebtedness without in any way affecting the lien hereof
upon any part of the security not expressly released, and may agree with any
party obligated on said Indebtedness or having any interest in the security
described herein to extend the time for payment of any part or all of the
Indebtedness. Such agreement shall not in any way release or impair the lien
hereof, but shall extend the lien hereof as against the title of all parties
having any interest in said security, which interest is subject to said lien,
and no such release or agreement shall release any person or entity obligated to
pay any Indebtedness.
46. Mortgagee Not Obligated. Nothing herein contained shall be
construed as making the payment of any insurance premiums, taxes or assessments
obligatory upon Mortgagee, although Mortgagee may pay
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same, or as making Mortgagee liable in any way for loss, damage or injury,
resulting from the non-payment of any such insurance premiums, taxes or
assessments.
47. Lien Law. Mortgagor will, in compliance with Section 13 of the
Lien Law, receive the advances secured by this Mortgage and will hold the right
to receive such advances as a trust fund to be applied first for the purpose of
paying the cost of the improvement and will apply the same first to the payment
of the cost of the improvement before using any part of the total of the same
for any other purpose.
48. Costs, Expenses and Attorney's Fees. Should one or more Events of
Default occur hereunder, and should an action be commenced for the foreclosure
of this Mortgage, Mortgagee shall be entitled to recover all sums due hereunder,
statutory costs, and any additional allowances made pursuant to Section 8303(a)
of the Civil Practice Law and Rules of the State of New York, and in addition
thereto, reasonable attorneys' fees in such proceeding and in all proceedings
related thereto necessary to and related to the foreclosing proceeding, and such
amount shall be paid by Oneida on demand and shall be a lien on the Mortgaged
Property prior to any right or title to, interest in or claim upon the Mortgaged
Property attaching and accruing subsequent to the lien of this Mortgage, and
shall be deemed to be secured by this Mortgage and the indebtedness which it
secures.
49. Entire Agreement. This Mortgage constitutes the entire
understanding between Mortgagor and Mortgagee relative to the granting of a
mortgage lien on the Mortgaged Property and supersedes any prior writings or
oral statements or conversations at any time made or had with respect thereto.
50. Governing Law: Severability. This Mortgage shall be governed by
the law of the jurisdiction in which the Mortgaged Property is located. In the
event that any provision or clause of this Mortgage conflicts with applicable
law, such conflict shall not affect other provisions of this Mortgage which can
be given effect without the conflicting provision, and to this end, the
provisions of this Mortgage are declared to be severable.
51. Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Mortgagor under this Mortgage.
52. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE HEREBY WAIVE TRIAL
BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR
ARISING OUT OF THIS MORTGAGE OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT HEREOF, OR THE RELATIONSHIP BETWEEN MORTGAGOR AND
MORTGAGEE OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN MORTGAGOR AND
MORTGAGEE ARISING UNDER THIS MORTGAGE.
53. Tax Law Section 253 Statement. This Mortgage does not cover real
property principally improved or to be improved by one or more structures
containing in the aggregate not more than six residential dwelling units, each
having their own separate cooking facilities.
54. Execution of Counterparts. This Agreement may be executed in one
or more counterparts, any one or all of which shall constitute but one
agreement.
55. Purposely Omitted.
56. New York State Specific Provisions.
(a) Inconsistencies. In the event of any inconsistencies between the terms
and conditions of this Section 56 and the other provisions of this Mortgage, the
terms and conditions of this Section 56 shall control and be binding.
(b) Insurance. The provisions of subsection 4 of Section 254 of the New
York Real Property Law covering the insurance of buildings against loss by fire
shall not apply to this Mortgage. In the event of any conflict, inconsistency or
ambiguity between the provisions of this Mortgage and the provisions of
subsection 4 of Section
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254 of the New York Real Property Law covering the insurance of buildings
against loss by fire, the provisions of the Mortgage shall control.
(c) Leases. Mortgagee shall have all of the rights against lessees of the
Mortgaged Property set forth in Section 291-f of the Real Property Law of New
York.
(d) Statutory Construction. The clauses and covenants contained in this
Mortgage that are construed by Section 254 of the New York Real Property Law
shall be construed as provided in those sections (except as provided in Section
56(b). The additional clauses and covenants contained in this Mortgage shall
afford rights supplemental to and not exclusive of the rights conferred by the
clauses and covenants construed by Section 254 and shall not impair, modify,
alter or defeat such rights (except as provided in Section 56(b),
notwithstanding that such additional clauses and covenants may relate to the
same subject matter or provide for different or additional rights in the same or
similar contingencies as the clauses and covenants construed by Section 254. The
rights of Mortgagee arising under the clauses and covenants contained in this
Mortgage shall be separate, distinct and cumulative and none of them shall be in
exclusion of the others. No act of Mortgagee or any of the Lenders shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision, anything herein or otherwise to the contrary
notwithstanding. In the event of any inconsistencies between the provisions of
Section 254 and the provisions of this Mortgage, the provisions of this Mortgage
shall prevail.
(e) Power of Sale. Upon the occurrence of an Event of Default, Mortgagee
shall have the right to sell the Mortgaged Property, including, without
limitation, by exercise of any and all rights and remedies available under
Article 14 of the New York Real Property Actions and Proceedings Law (the
"RPAPL"). Any deed or deeds executed and delivered in connection with the sale
or sales of the Mortgaged Property pursuant to Article 14 of the RPAPL shall be
in the form provided in Article 14 of the RPAPL.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Mortgage has been duly executed as of the
18th day of April, 2003.
ONEIDA LTD.
By: /s/ GREGG R. DENNY
--------------------------------
Gregg R. Denny
Chief Financial Officer
STATE OF NEW YORK
) SS.:
COUNTY OF MADISON
On the 18th day of April, in the year 2003, before me, the
undersigned, a notary public in and for said state, personally appeared Gregg R.
Denny, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual or the person upon behalf of
which the individual acted, executed the instrument.
/s/ JOSEPH ZAGRANICZNY
----------------------
Notary Public
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EXHIBIT A
DESCRIPTION OF PREMISES
Property Off Middle Road
ALL THAT TRACT OR PARCEL OF LAND situate in the City of Oneida, County of
Madison and State of New York, being part of Lot Number 24 of the Oneida
Purchase of 1840, bounded and described as follows:
Beginning at point on the centerline of Middle Road, said point standing at
the intersection of the centerline of Middle Road with the southerly boundary of
Kenneth C. and Barbara M. Sparks (Now or Formerly), as described in a Warranty
deed dated November 21, 1956 and filed in the Madison County Clerk's office in
Liber 532 of Deeds at Page 319; thence along the southerly boundary of Sparks
being further described as the southerly boundary of Alfred Wright (Formerly);
thence S 72[d] 35' 00" W, 422.49 feet along the southerly boundary of
Sparks to an iron pin; thence N 83[d] 39' 13" W, 180.51 feet continuing
along the southerly boundary of Sparks to an iron pin standing on the westerly
boundary of Sparks; thence N 06[d] 17' 57" E, 132.23 feet along the
westerly boundary of sparks to an iron pin standing on the southerly boundary of
the Sherrill-Kenwood Cemetery Association, Inc. (Now or Formerly); thence N
83[d] 28' 43" W, 1597.74 feet along the southerly boundary of the
Sherrill-Kenwood Cemetery Association, Inc. and the southerly boundary of
Stephen R. and Dorothy B. Leonard (Now or Formerly) to an iron pin standing on
the easterly boundary of Leonard; thence S 06[d] 32' 40" W, 559.07 feet
along the easterly boundary of Leonard to an iron pin standing on the northerly
boundary of George W. and Edith Brewster (Now or Formerly); thence S 83[d]
28' 25" E, 2007.81 feet along the northerly boundary of Brewster, the northerly
boundary of Carolyn J. Bonnell (Reputed Owner), the northerly boundary of
Gilbert H. and Linda V. Palmer (Now or Formerly), the northerly boundary of Jean
B. Streeter (Now or Formerly) and the northerly boundary of Harold A. and Teresa
S. Stone (Now or Formerly) to an iron pin standing on the easterly boundary of
Charles E. and Margaret G. MacLaughlin (Now or Formerly); thence N 21[d]
38' 00" W, 434. 82 feet along the easterly boundary of MacLaughlin, the easterly
boundary of James A. and Ardys C. Near (Now or Formerly) and the easterly
boundary of Fred L. and Harriet S. Hartwig (Now or Formerly) to a point standing
on the northerly boundary of Hartwig; thence N 72[d] 35' 00" E, 431.88 feet
along the northerly boundary of Hartwig to a point standing on the centerline of
Middle Road; thence N 32[d] 04' 00" W, 51.68 feet along the centerline of
Middle Road to the point and place of beginning.
The above described parcel containing 23.899 acres of land, more or less.
Together with and subject to a right of way 30 feet in width leading
westerly from Middle Road to the lands of Stephen R. and Dorothy B. Leonard as
reserved in a Deed dated November 18, 1925 and filed in the Madison County
Clerk's Office in Liber 278 of Deeds at Page 261 to which deed reference is made
for certainty of description, terms and conditions.
Also subject to the rights of the public to that portion of the above
described premises lying within the bounds of Middle Road.
The above-described premises are intending to be the premises shown on Tax
Map #47-1-23 in the City of Oneida, Madison County.
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Property Off East Hamilton Avenue
ALL THAT TRACT OR PARCEL OF LAND situate in the City of Sherrill County of
Oneida and State of New York briefly described as follows: Beginning at a point
in the center of Hamilton Avenue opposite to an iron pipe set in the northeast
corner of David Rowland's lot (now or formerly), and running thence along the
center of Hamilton Avenue 270 ft. to a point opposite to a pipe set in the
northeast corner of land hereby conveyed; thence running about 2145 ft. S
34[d] W to a point in the center of said Parson's Brook, so called; thence
running along the center of said Parson's Brook as it winds and turns to the
S.E. corner of land now or formerly owned by Oneida Community Limited; thence
running along the easterly line of lands of Oneida Community Limited, about 1750
ft. N 34[d] E to an iron pipe on the S.W. corner of the lands now owned by
David Rowland (now or formerly); thence running 86.36 ft. along the south side
of lands of said Rowland (now or formerly) to an iron pipe on the S.E. corner of
the lands of David Rowland (now or formerly); thence running 287 ft. along the
east line of land of said Rowland (now or formerly) to the point of beginning,
Containing 16.70 acres of land, be the same more or less.
Together with and subject to all right, title and interest of lands as
described in a Boundary Agreement between Glen F. Adams and Victoria R. Adams
dated December 10, 1974 recorded December 12, 1974 in the Oneida County Clerk's
Office in Liber 2002 of Deeds at page 191.
ALL THAT TRACT OR PARCEL OF LAND, situate in the City, of Sherrill, County
of Oneida, State of New York, lying on the southerly side of East Hamilton
Avenue, bounded and described as follows:
Beginning at a point in the east corporation line, said point being S
10[d] 05' W, distant 205.28 feet, from the intersection of said corporation
line with the southerly line of said East Hamilton Avenue; thence S 10[d]
05' W along said corporation line and along the west line of Lot 22 of the First
Pagan Purchase, to a point in the center or bottom of the ravine in Oneida
Creek; thence by the following eleven courses along the bottom of said ravine; S
88[d] 30' W, 330 feet; N 55[d] 15' W 170.94 feet; S 70[d] 45' W,
177.54 feet; thence N 69[d] 45' W, 100.3 feet; thence S 71[d] 45' W,
498.96 feet; thence N. 80[d] 15' W 275.22 feet; thence N 25[d] 45' W,
285.78 feet; thence N 44[d] 30' W, 198.0 feet; thence N 88[d] 30' W,
214.5 feet; thence N 34[d] 15' W, 147.18 feet; thence N 41[d] 15' W,
173.52 feet to the southeasterly corner of the lands of Oneida Community Limited
as conveyed in 1924 recorded in Liber 819 at Page 204; thence N 34[d] E,
1935 feet, more or less, to the southwesterly corner of the lands of one Totten
as conveyed June 21, 1950 recorded in Liber 1283 at Page 473; thence S
43[d] 52' 30" E along the southerly line of said lands, 224.90 feet, to a
point therein; thence S 58[d] 01' E along the southerly line of said lands
and the lands of one Thurston, 634.53 feet, to a point; thence S 23[d] 19'
20" W, to a point distant 312 feet, measured at right angles from said southerly
line of East Hamilton Avenue; thence S 61[d] 02' 30" E and parallel with
said southerly street line, to a point; thence northeasterly at right angles to
said southerly street line, 312 feet, to a point therein, said point being
distant northwesterly measured along said southerly street line, 455 feet, from
the intersection of said southerly street line with the said corporate limits of
the said City of Sherrill; thence S 61[d] 02' 30" E along said southerly
street line, 75 feet to the northwesterly corner of Lot 1 as shown on a map
entitled "Portion of Lands of Wyland" dated October 1959 and prepared by Roswell
W. Cull & Associates, said map being duly filed in the office of the clerk of
said county; thence southwesterly at right angles to said southerly road line,
200 feet, to the southwesterly corner of said Lot 1; thence southeasterly and
parallel with said southerly street line and along the rear of Lots 1, 2 & 3 on
said map and extension thereof a distance of 426.30 feet, to the point of
beginning, being all the lands contained therein.
The above described parcel of land being a portion of those lands conveyed
by Fred E. and Marion W. Thurston to Gordon B. Wyland, Inc. January 31, 1957
recorded in Liber 1540 at page 234.
ALL THAT TRACT OR PARCEL OF LAND, situate in The City of Sherrill, County
of Oneida and State of New York bounded and described as follows:
All that part of lands described in a Deed from John H. Noyes, Harriet A.
Noyes by E.H. Hamilton, their attorney-in-fact, Erastus H. Hamilton, Elizabeth
H. Hamilton, William H. Woolworth, Caroline A. Woolworth by C.C. Kellogg, their
attorney-in-fact, Charles A. Kellogg and Olive A. Kellogg to Oneida Community
Limited dated January 1, 1881 recorded February 21, 1881 in the Oneida County
Clerk's Office in Liber 401 of Deeds at page 113
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lying south of East Hamilton Avenue and is bounded on the east by the lands
described in Parcel 1 above; south by the Oneida Creek ravine (also known as
Parsons Creek and Parsons Brook); and west by Oneida Creek and Sherrill Road.
Together with the right and subject to the burdens of others in and to the
right as described in a Full Covenant Deed from Oneida Community, Limited to
Zilpha Judson dated March 19, 1917 and recorded April 26, 1917 in the Oneida
County Clerk's Office in Liber 730 of Deeds at Page 329.
Together with the right and subject to the burdens of others in "and to
the right as described in a Full Covenant Deed from Oneida Community, Limited to
M.C. Morgan, E.C. Richmond, Allen C. Jones, C.E. Dickson, J.S. Freeman and
George Ribolin, Trustees of the Kenwood Park Methodist Episcopal Church dated
June 30, 1916 and recorded August 8, 1916 in the Oneida County Clerk's Office in
Liber 728 of Deeds at Page 324.
Together with the right and subject to the burdens of others in and to the
rights described in an instrument from Oneida Community, Limited to M.C. Morgan,
E.C. Richmond, Allen C. Jones, C.H. Goodwin, J.S. Freeman, and George Ribolin,
Trustees of the Kenwood Park Methodist Episcopal Church dated March 30, 1917 and
recorded May 2, 1917 in the Oneida County Clerk's Office in Liber 741 of Deeds
at Page 8.
Excepting and reserving the parcels as described in the following:
Warranty Deed from Oneida Community Limited to Rachel M. Tygert dated April
11, 1883 and recorded August 9, 1883 in the Oneida County Clerk's Office in
Liber 426 of Deeds at Page 3.
Warranty Deed from The Oneida Community, Limited to Thomas M. Constantine
dated June 10, 1891 and recorded July 6, 1891 in the Oneida County Clerk's
Office in Liber 488 of Deeds at Page 390.
Warranty Deed from Oneida Community Limited to Alfred Collins dated January
15, 1894 and recorded April 20, 1894 in the Oneida County Clerk's Office in
Liber 512 of Deeds at Page 15.
Warranty Deed from The Oneida Community, Limited to Floyd J. Roney and
Norene M. Roney dated December 28, 1911 and recorded June 4, 1912 in the Oneida
County Clerk's Office in Liber 677 of Deeds at Page 461. Said Deed was corrected
by a Warranty Deed from The Oneida Community, Limited to Floyd J. Roney and
Norene M. Roney dated June 6, 1912 and recorded September 25, 1912 in the Oneida
County Clerk's Office in Liber 689 of Deeds at Page 17.
Warranty Deed from The Oneida Community, Limited to Frederick Simons and
Johanna Simons dated June 5, 1912 and recorded June 28, 1912 in the Oneida
County Clerk's Office in Liber 684 of Deeds at Page 434.
Full Covenant Deed from Oneida Community, Limited to M.C. Morgan, E.C.
Richmond, Allen C. Jones, C.E. Dickson, J.S. Freeman and George Ribolin,
Trustees of the Kenwood Park Methodist Episcopal Church dated June 30, 1916 and
recorded August 8, 1916 in the Oneida County Clerk's Office in Liber 728 of
Deeds at Page 324. Said Deed was corrected by a Full Covenant Deed from Oneida
Community, Limited to M.C. Morgan, E.C. Richmond, Allen C. Jones, C.H. Goodwin,
J.S. Freeman, and George Ribolin, Trustees of the Kenwood Park Methodist
Episcopal Church dated March 30, 1917 and recorded May 2, 1917 in the Oneida
County Clerk' s Office in Liber 741 of Deeds at Page 8.
Full Covenant Deed from Oneida Community, Limited to Zilpha Judson dated
March 19, 1917 and recorded April 26, 1917 in the Oneida County Clerk's Office
in Liber 730 of Deeds at Page 329.
Full Covenant Deed from Oneida Community Limited to Frank Brewster and
Mable Brewster dated April 4, 1917 and recorded May 4, 1917 in the Oneida County
Clerk's Office in Liber 730 of Deeds at Page 348.
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Full Covenant Deed from Oneida Community to Albert H. Conde and Myra Conde
dated December 1, 1920 and recorded January 6, 1921 in the Oneida County Clerk's
Office in Liber 774 of Deeds at Page 481.
Full Covenant Deed from Oneida Community Limited to Lafayette Ford and Vera
Ford dated May 31, 1923 and recorded August 15, 1923 in the Oneida County
Clerk's Office in Liber 823 of Deeds at Page 411.
Instrument between Oneida Community Limited to Nelson Newhall and Annie
Newhall dated May 31, 1923 and recorded August 15, 1923 in the Oneida County
Clerk's Office in Liber 823 of Deeds at Page 409.
Full Covenant Deed from Oneida Community Limited to John Vanderlan and
Lillian E. Vanderlan dated May 31, 1923 and recorded August 15, 1923 in the
Oneida County Clerk's Office in Liber 823 of Deeds at Page 407.
Full Covenant Deed from Oneida Community Limited to Clarence Helmer and
Maude M. Helmer dated May 18, 1923 and recorded January 14, 1924 in the Oneida
County Clerk's Office in Liber 830 of Deeds at Page 256.
Also, excepting and reserving all that tract or parcel of land known as The
Oneida Community Clubhouse located on the south side of East Hamilton Avenue and
designated on the tax maps of the City of Sherrill as Parcel ID #332.006-1-71.
The above-described premises are intending to be the premises shown on Tax
Map #332.06-2-72 and 332.011-2-28, City of Sherrill, Oneida County.
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Additional Lewis Point Property
ALL THAT TRACT OR PARCEL OF LAND situate in the Town of Lenox, County of
Madison and State of New York, and being a parcel of land lying on the easterly
side of the so called Lewis Point highway leading from Route or State Highway
No. 31 northerly to Lewis Point.
Commencing at an iron stake driven in the ground in the easterly line of
said highway northwesterly of a large boulder and which boulder is on the
premises hereby being described some distance easterly of said highway; thence
running easterly on a line about 11 or 12 feet northerly of the north edge of
said boulder a distance of 345 feet 6 inches to an iron stake driven in the
ground near a cedar post in a wire fence; thence southerly along said wire fence
a distance of about 255 feet to an iron stake driven in the ground; thence
westerly and parallel to the first mentioned line to the easterly line of said
Lewis Point highway, a distance of approximately 370 or 375 feet to an iron
stake being driven in the ground marking the approximate point; thence northerly
and easterly as the east line of said highway winds and turns to the place of
beginning, containing within said boundaries, about 2 1/6 acres of land, be the
same more or less.
The above-described premises are intending to be the premises shown on Tax
Map #6.73-1-8 in the City of Sherrill, Oneida County.
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Additional Vacant Property
ALL THAT TRACT OR PARCEL OF LAND situate in the City of Sherrill, County of
Oneida and State of New York bounded and described as follows:
Beginning at a point in the northerly line of West Hamilton Avenue at the
southwest corner of Lot No. 21 as shown on a map entitled: "Oneida Limited
Subdivision, West Hamilton Avenue, City of Sherrill, Oneida Co., State of New
York" as prepared by Frederick W. Myers, Jr. and dated December 2, 1986;
thence along the westerly line of Lot No. 21 of the aforementioned map N.
51[d] 19' 21" E. 200 feet to the northwest corner of the above mentioned
lot;
thence along the rear line of Lots 21, 20, 19, 18, 17, 16, 15, 14, and 13 as
shown on the aforementioned map S 38[d] 40' 38" E. 990 feet to the
northeast corner of Lot 13 as shown on the aforementioned map;
thence along the easterly line of Lot No. 13 of the aforementioned map S
51[d] 19' 21" W. 200 feet to the southeast corner of Lot No. 13 of the
aforementioned Lot No. 13 as the same intersects the northerly line of West
Hamilton Avenue;
thence easterly along the northerly line of West Hamilton Avenue a total
distance of 571.65 to the southwest corner of lands now or formerly owned by
William R. Daly and Dolores M. Daly (Liber 2620 of Deeds at page 237);
thence along the westerly line of lands of Daly (now and formerly) the following
three courses:
1) N. 48[d] 30' 00" E. 49.21 feet to a point;
2) S. 66[d] 40' 54" E. 198.86 feet to a point;
3) S. 62[d] 53' 27" E. 85.83 feet to a point at the southwest corner of
lands of now or formerly Oliver E. Tudman and Jean W. Tudman (Liber 2511 of
Deeds at page 124); said point also being the southwest corner of Lot No.
13 as shown on a map entitled: "Robertson Road Subdivision - Section "A",
City of Sherrill, Oneida County, State of New York" as prepared by
Frederick W. Myers, Jr. and dated May 12, 1988;
thence along the rear lines of Lot Nos. 13, 14, 15, 16, 17, 18, 19, 20, 21, and
22 as shown on the aforementioned map N. 52[d] 56' 28" E. 1027.44 feet to
the northwest corner of Lot No. 22 as shown on the aforementioned map;
thence along the northerly line of Lot No. 22 as shown on the aforementioned map
S. 37[d] 03' 32" E. 190 feet to the northeast corner of Lot No. 22 as shown
on the aforementioned map;
thence southerly to the North line of Robertson Road; thence easterly and
southerly along the lines of Robertson Road as shown on the aforementioned
Robertson Road Subdivision map until the same intersects the northerly line of
West Noyes Boulevard;
thence easterly along the northerly line of West Noyes Boulevard as shown on the
aforementioned Robertson Road Subdivision map until it intersects the southwest
corner of lands of now or formerly Sherrill-Kenwood Community Retirement Housing
Corporation (Liber 2654 of Deeds at page 338);
thence Northerly along a circular curve concave to the left, whose radius is
550.00 feet (167.640 meters), an arc length of 377.36 feet (115.020 meters)
central angle of 39[d] 18' 40" whose chord bears N. 25[d] 11' 22" E. a
distance of 370.00 feet (112.776 meters) to an iron pipe set at the intersection
of said Easterly boundary of Robertson Road (proposed) and the Southerly
boundary of a proposed street according to a survey prepared by Herbert W.
Stoughton dated January 16, 1978 and filed in the Oneida County Clerk's Office
on February 22, 1978 in Map Roll 940; thence Easterly along said Southerly
boundary of a proposed street along a circular curve concave to the right, whose
radius is 1,420.00 feet (432.817 meters) an arc length of 445.12 feet (135.673
meters) (central angle of 17[d] 57' 37" whose
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chord bears S. 80[d] 25' 47" E., a distance of 443.30 feet) (135.118
meters) to an iron pipe set at a point of reverse curvature; thence continuing
Easterly along said Southerly boundary of a proposed street along a circular
curve concave to the left, whose radius is 92.00 feet (28.042 meters), an arc
length of 37.35 feet (11.384 meters) (central angle of 23[d] 15' 40" whose
chord bears S. 83[d] 04' 55" E. a distance of 37.09 feet) (11.305 meters)
to an iron pipe; thence S. 4[d] 42' 39" E. along the westerly boundary of
lands conveyed by Oneida Limited to the City of Sherrill known as Robertson Park
Addition by deed dated 31 July 1972, and recorded in the Oneida County Clerk's
Office 7 August 1972, in Liber of Deeds 1954 at page 333, a distance of 164.98
feet (50.286 meters) to an iron pipe; thence S. 25[d] 44' 08" W. continuing
along the Westerly boundary of Robertson Park Addition, a distance of 150.00
feet (45.720 meters) to an iron pipe; thence Southeasterly along a circular
curve concave to the right, whose radius is 210.00 feet (64.008 meters), an arc
length of 70.00 feet (21.336 meters) (central angle of 19[d] 05' 54" whose
chord bears S. 54[d] 42' 57" E. a distance of 69.68 feet) (21.238 meters)
to an iron pipe.
Thence continuing easterly along the northerly side of West Hinds Avenue to
a point being the southwest corner of lands of now or formerly of Robert C.
Tegtmeyer and Beverly J. Tegtmeyer (Liber 2235 of Deeds at page 205);
Thence N. 46[d] 00' 00" E along the westerly line of lands of now or
formerly Tegtmeyer 165.00 feet to an iron pin on the southerly bounds of lands
of The City of Sherrill (Liber 1483 of Deeds at page 217);
Thence northwesterly 100 feet +/- to the southwest corner of lands of The
City of Sherrill;
Thence running northeasterly at an interior angle of ninety degrees and
zero minutes (90[d] 00') a distance of 491.42 feet to a concrete monument
in the northeasterly line of said Padgham Street extension;
Thence running southeasterly at an interior angle of ninety degrees and
zero minutes (90[d] 00') along the northeasterly line of said Padgham
Street extension a distance of 530 feet to a concrete monument marking the
intersection of the northwesterly boundary line of Wayland Street extended and
the northeasterly boundary line of Padgham Street extended;
Thence northeasterly along the northwesterly line of Wayland Street
extension to the northerly terminus of said Wayland Street extension;
Thence easterly along the northerly terminus of said Wayland Street
extension until it intersects the westerly line of lands of now or formerly The
City School District of The City of Sherrill (Liber 1638 of Deeds at page 373);
thence N 51[d] 03' 30" E on a northerly extension of said easterly
line of Wayland Street (proposed) to an iron pipe standing near the southerly
shore of Taylor Brook;
thence continuing on a northerly extension of said easterly line of Wayland
Street and on the course N 51[d] 03' 30" E, 6 feet, more or less, to the
southerly side of Taylor Brook; said point also being the southwesterly corner
of lands of now or formerly The City of Sherrill (Liber 2038 of Deeds at page
380);
thence N. 51[d] 03' 30" E along the westerly line of lands of the City
of Sherrill and along the said northerly extension of Wayland Street a distance
of about 395 feet to a point on the southerly boundary of lands of now or
formerly Patrick J. Clarke and Jacalyn L. Clarke (Liber 2091 of Deeds at page
793);
thence westerly along the southerly line of lands of Clarke to the
southwest corner of lands of Clarke and the southeast corner of lands of now or
formerly Crystal Davenport (Liber 2739 of Deeds at page 230);
thence westerly along the southerly line of lands of Davenport and the
southerly line of lands of now or formerly Tari L. Almony (Liber 2865 of Deeds
at page 177) to the southwest corner of lands of said Almony;
thence northerly along the westerly line of lands of Almony 165 feet more
or less to the southerly line of Prospect Street (formerly Wilson Place);
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thence westerly along the southerly side of Prospect Street to the
northeast corner of lands of now or formerly Christopher R. Cousin and Melissa
O. Cousin (Liber 2707 of Deeds at page 607);
thence S 20[d] 00' W along the easterly line of land of said Cousin 160
feet to the southeast corner thereof;
thence westerly along the southerly line of said Cousin and continuing
along the southerly lines of Zuegg (Liber 1568 of Deeds at page 276), Johnson
(Liber 2054 of Deeds at page 467), Watts (Liber 2316 of Deeds at page 157) the
Fay B. and Virginia D. Salm Trust (Liber 2696 of Deeds at page 327) and Donald
E. Grogan and Edward R. Grogan (Liber 2269 of Deeds at page 93) to the southwest
corner of lands of said Grogan; said point also being an iron pipe set on the
centerline of Taylor Brook;
thence along the center line of Taylor Brook until it intersects the
southwest corner of lands of the now or formerly Lee E. White and Rosalind M.
White (Liber 2064 of Deeds at page 207);
thence along the westerly bounds of said White and also along the westerly
line of lands of the now or formerly William E. Hauger and Louisa R. Hauger
(Liber 2100 of Deeds at page 497) until the same intersects the southerly
boundary of the existing N.Y. State Highway, Route 5, also known as the
Utica-Oneida Castle Sec. -2 Highway;
thence westerly along the southerly boundary of existing N.Y. State
Highway, Route 5, to a point being the northeast course of lands of the now or
formerly Thomas A. Blake and Lynda L. Blake (Liber 2348 of Deeds at page 157);
thence S 70[d] 16' 43" W 109.02 feet more or less to the southerly
corner of lands of said Blake; said point also being the southeast corner of
lands of the now or formerly Thomas M. and Marilyn C. Mahady (Liber 1795 of
Deeds at page 269);
thence continuing along the southeast line of Mahady a distance of 99+/-
feet to a point in the North bank of Mud Creek; thence along said North bank
along the southerly line of Mahady to the southwest corner of Mahady and the
southeast corner of lands of the now or formerly George E. Webb, Jr. (Liber 2787
of Deeds at page 177);
thence westerly along the north bank of Mud Creek and along the southerly
bounds of George E. Webb, Jr. (Liber of Deeds 2787/180 and 2787/177)
approximately 447 feet to the southwest corner of lands of George E. Webb, Jr.
as described in a Warranty Deed recorded in the Oneida County Clerk's Office in
Liber 2787 of Deeds at page 177;
thence northerly along the westerly line of said George E. Webb, Jr.,
approximately 8 feet to the southerly boundary of existing N.Y. State Highway
Route 5;
thence westerly along the southerly boundary of N.Y. State Highway Route 5
to a point being the northeast corner of lands of now or formerly Bartolo Trinca
and Antonina Trinca (Liber 2624 of Deeds at page 381);
thence S 20[d] 14' 10" W along the easterly line of lands of said
Trinca 325.00 feet to the southeast corner of said Trinca;
thence N 86[d] 43' 54" W along the southerly boundary of Trinca 264.30
feet, more or less, to the southwest corner of said Trinca, said point also
being the east line of lands of now or former Arnold O. Cerio (Liber 2327 of
Deeds at page 140 and Liber 2327 of Deeds at page 130); thence southerly along
said east line to the southeast corner of Cerio;
thence westerly along the southerly boundary of said Cerio approximately
250 feet, more or less, to the southwest corner of lands of said Cerio; said
point also being the southeast corner of lands of now or formerly John E. Bortle
and Clara Bortle (Liber 2847 of Deeds at page 697);
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thence westerly along the southerly boundary of said Bortle approximately
210 feet, more or less, to a point; said point being the southwest corner of the
lands of said Bortle;
thence northerly along the westerly boundary of said Bortle approximately
250 feet, more of less to a point; said point also being the intersection of the
lands described herein to the south and the lands of Francisco Lazio (Liber 2354
of Deeds at page 195) to the north;
thence westerly along said division line 80 feet, more or less, to a point
on the division line of lands of Francisco Lazio and Eleanora Lazio (Liber 2691
of Deeds at page 14) to the west and the lands described herein to the east;
thence southerly along said division line 250 feet, more or less, to the
southeast corner of lands of said Lazio;
thence N 89[d] 08' 30" W along the southerly boundary of said Lazio
139.00 feet to a point at the southwest corner of lands of said Lazio; said
point also being the southeast corner of lands of now or formerly Brenda S.
Baker and Maretta B. Silliman (Liber 2666 of Deeds at page 319);
thence N 89[d] 08' 30" W along the southerly boundary of said Baker
and Silliman to an iron pin standing at the southwest corner of lands of said
Baker and Silliman;
thence N 11[d] 39' 06" E to a point on the division line of lands of
now or formerly North Georgia Wood Preserving, Inc. (Liber 2347 of Deeds at page
28) on the west and the lands described herein on the east;
thence southwesterly along the above mentioned division line to the
northwest corner of lands of now or formerly Lehmann Moyer, Inc. (Liber 2391 of
Deeds at page 212); said point also being the northwest corner of Lot No. 22 as
shown on a map entitled: "Oneida Limited Subdivision-West Hamilton Avenue", City
of Sherrill, Oneida Co. and State of New York as surveyed by Frederick W. Myers,
Jr. and dated December 2, 1986;
thence S 38[d] 40' 39" E 109.31 feet to the northeast corner of said
Lehmann Moyer, Inc.; said point also being the northeast corner of Lot No. 22 of
the aforementioned map;
thence S 51[d] 19' 21" W 200 feet to the northerly boundary of West
Hamilton Avenue; said point also being the southeast corner of Lot No. 22 of the
aforementioned map;
thence easterly along the northerly boundary of West Hamilton Avenue 60
feet, more or less, to the point or place of beginning, excepting and reserving
the parcels and lands described in the following:
1) Full Covenant Deed from Oneida Ltd. to The City of Sherrill dated
February 19, 1999 recorded January 7, 2000 in the Oneida County Clerk's Office
in Liber 2902 of Deeds at page 81.
2) Quit Claim Deed from Oneida Ltd. To The City of Sherrill dated July 31,
1972 recorded _________ in the Oneida County Clerk's Office in Liber 1954 of
Deeds at page 333.
Together with the right and subject to the burdens of others in and to the
rights and easement as granted by Thomas C. Griffith, Jr. to Oneida Ltd. dated
July 7, 1988 recorded July 18, 1988 in the Oneida County Clerk's Office in Liber
2411 of Deeds at page 311.
ALL THAT TRACT OR PARCEL OF LAND situate in the City of Sherrill, County of
Oneida and State of New York, bounded and described as follows:
Beginning at a point on the westerly boundary of Leonard Street at the
southeast corner of Lot No. 9 Block 30 as shown on a map entitled; "Lot Layout
of Leonard Street located in the Northwesterly Addition to the Kensley
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Tract in The City of Sherrill, Oneida County and State of New York" made by
Martin A. Brennau, dated October 15, 1948 filed in the Oneida County Clerk's
Office in Map Roll 441;
thence northwesterly along the southwesterly line of Lot 9 Block 30 on the
above referenced map 160 feet to a point;
thence northeasterly along the rear line of Lot Nos. 9, 10, 11, 12, 13 and
14 of Block No. 30 to a point being the west line of Lot No. 14 Block 30 as
shown on the above referenced map, said point also being the southerly line of
premises now or formerly owned by Robert A. Mumford, Jr. and Lynda L. Mumford
(Liber 2509 of Deeds at page 222);
thence along said southerly bounds of Mumford N 37[d] 03' 32" W 20.31
feet to an iron pin at the southwest corner of said lands of Mumford; said point
also being the southeast corner of land now or formerly of Robert A. DeWaine and
Wendy DeWaine (Liber 2560 of Deeds at page 299);
thence N 37[d] 03' 32" W along the southerly boundary of said DeWaine
128.16 feet to a point being the southwest corner of lands of said DeWaine and
the southeasterly highway boundary of Miller Street proposed;
thence N 52[d] 56' 28" E 179.10 feet along said southeasterly highway
boundary of Miller Street proposed to the southwesterly highway boundary of West
Noyes Boulevard;
thence N 36[d] 55' 00" W along the southwesterly highway boundary of
West Noyes Boulevard to the northeast corner of now or formerly of Francis J.
Sorrentino and Denise D. Sorrentino (Liber 2533 of Deeds at page 115);
thence S 52[d] 56' 28" W along the southeasterly boundary of lands of
said Sorrentino 196.12 feet to the southeast corner of lands of said Sorrentino;
thence N 37[d] 03' 32" W along the rear line of said Sorrentino and
also along a portion of the rear line of lands of now or formerly Jeffrey S.
Pole and Theresa S. Pole (Liber 2680 of Deeds at page 472) of the northeast
corner of lands of now or formerly of John W. Seely and Maria E. Seely (Liber
2543 of Deeds at page 69); said point also being the northeast corner of Lot No.
6 as shown on a map entitled: "Robertson Road Subdivision-Section A", City of
Sherrill, Oneida County, State of New York as prepared by Frederick W. Myers
dated May 12, 1998 and lastly revised September 30, 1988 and filed in the Oneida
County Clerk's Office in Map Roll 1350;
thence along the rear line of Lot Nos. 6, 7, 8, 9, 10, 11 and 12 of the
above referenced map S 52[d] 56' 28" W 700 feet to a point being the
northerly line of lands of now or formerly Robert A. Emig and Suellen M. Emig
(Liber 2012 of Deeds at page 561);
thence easterly along the northerly line of lands of said Emig to the
northeast corner of lands of said Emig; said point also being the northwest
corner of lands now or formerly of George A. Fogg and Ruth D. Fogg (Liber 1562
of Deeds at page 258);
thence easterly along the northerly line of lands of said Fogg 90 feet,
more or less, to the northeast corner of lands of said Fogg; said point also
being the northwest corner of lands of now or formerly Ivan S. Becker, Jr. and
Dorothy E. Becker (Liber 1856 of Deeds at page 488);
thence easterly along the northerly line of lands of said Becker 95 feet,
more or less, to a point in the westerly line of Miller Street (proposed);
thence southwesterly along the division line of the northwesterly line of
Miller Street (proposed) and the southeasterly line of lands of said Becker
165.00 feet to the northerly bounds of West Hamilton Avenue;
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thence easterly along the northerly bounds of West Hamilton Avenue to the
southwest corner of lands of now or formerly William S. Worthen and Anna Marie
Worthen (Liber 1998 of Deeds at page 260); said point also being the easterly
boundary of a proposed street (Miller Street);
thence northerly along the easterly boundary of a proposed street (Miller
Street) and along the westerly boundary of said Worthen lands a distance of
179.40 feet to an iron pipe;
thence easterly at an interior angle of 90[d] 00' 00" a distance of
150.00 feet to an iron pipe set in the southwest corner of lands now or formerly
Albert P. Larsen and Gladys I. Larsen (Liber 1362 of Deeds at page 390); said
point also being the southwest corner of Lot No. 6 Block 35 as shown on a
certain map entitled; Lot Layout of Leonard Street located in the Northwesterly
Addition to the Kensley Tract in the City of Sherrill, Oneida County, and State
of New York made by Martin A. Brennan dated October 15, 1948 and filed in the
Oneida County Clerk's Office in Map Roll 441;
thence northwesterly along the rear line of Lot Nos. 6, 4, and 2 in Block
No. 35 to a point being the northwest corner of Lot 2 Block No. 35 as shown on
the above referenced map; said point also being the northwesterly corner of
premises now or formerly owned by Wallace A. Smith (Liber 1422 of Deeds at page
158);
thence easterly along the northerly bounds of lands of said Smith 160 feet
to the westerly bounds of Leonard Street;
thence northerly along the westerly bounds of Leonard Street to the point
or place of beginning.
Subject to the rights of others over Miller Street (proposed) as shown on
both maps as referenced in Parcel 2 herein.
ALL THAT TRACT OR PARCEL OF LAND situate in the City of Sherrill, County of
Oneida, State of New York, bounded and described as follows: Beginning at the
intersection of the southwesterly boundary of West Hamilton Avenue and the
northeasterly corner of lands now or formerly owned by George L Miller III and
Jo A. Miller (Liber 2564 of Deeds at Page 89); said point also being the
northeast corner of Lot No. 11 as shown on a map entitled "Oneida Limited
Subdivision - West Hamilton Avenue" City of Sherrill, Oneida Co., State of New
York as prepared by Frederick W. Myers, Jr., dated December 2, 1986;
thence along the southeasterly boundary of said Miller lands south
51[d] 19' 21" W 200 ft. to the southeasterly corner of said Miller lands and
Lot No. 11 of the aforementioned map.
thence along the rear line of Lot No. 11 on the aforementioned map north
38[d] 40' 37" W 110.30 ft. to the southwest corner of Lot No. 11 said point
also being the southeast corner of lands now or formerly owned by
Sherrill-Kenwood Water District (Liber 2703 of Deeds at Page 384) to a point;
thence along the aforesaid lands of the Sherrill-Kenwood Water District
North 38[d] 40' 39" W. 656.0+/- feet to a point standing on the nominal
centerline of Wood Creek; also known as Mud Creek; said point also being the
division line between the Town of Vernon on the North and City of Sherrill on
the South;
thence running southwesterly along the nominal centerline of Wood Creek
(aka Mud Creek) to a point at the intersection of the nominal centerline of Wood
Creek (aka Mud Creek) to the North and nominal centerline of Taylor Brook to the
south; said point also being the division line between Oneida County on the east
and Madison County on the west;
thence continuing in a southerly and southeasterly direction along the
nominal centerline of Taylor Brook and the aforesaid division line between
Oneida County on the East and Madison County on the West to a point on the
division line between the lands now or formerly owned by the City of Sherrill to
the northeast and the lands described herein to the southwest;
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thence along the aforesaid division line N 31[d] 36' 00" W 341.38 feet
to a point on the division line between the lands of the City of Sherrill to the
east and the lands described herein to the west; thence along the last mentioned
division line N. 58[d] 24' 00" E 638.00 feet to an iron pin on the division
line between the lands of the City of Sherrill to the southwest and the lands
described herein to the northeast; thence along the last mentioned division line
S 31[d] 36' 00" to a point also being the southwest corner of lot No. 6 as
shown on the map entitled "of the Fairway Lane Tract, said tract of land being
developed by the Oneida Limited Co., and designated as the Fairway Lane Tract on
a map of said tract prepared by Stearns & Wheler, Civil and Sanitary Engineers,
Cazenovia, New York, dated May 10, 1972 (revised 6/7/72)"; thence along the rear
line of Lot Nos. 6, 5, 4, 3 and a portion of Lot 2 343.33 to a point on the
division line between Lot No. 2 of the aforementioned map on the east and the
lands described herein on the west; said point also being the division line of
lands now or formerly of Raymond F. English and Josephine E. English (Liber 2573
of Deeds at Page 15) on the north and the lands described herein on the south;
said point also being the southeasterly corner of lot No. 1 as shown on a map
entitled "Oneida Limited Subdivision - West Hamilton Avenue" City of Sherrill,
Oneida Co., State of New York as prepared by Frederick W. Myers, Jr., dated
December 2, 1986;
thence North 38[d] 40' 39" W 1123.32 feet and along the rear line of
Lot Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the aforementioned map to the
southwest corner of Lot No. 10 as shown on the aforementioned map; said point
also being southwesterly corner of lands now or formerly owned by John S. Stone
and Dorothy Stone (Liber 2412 of Deeds at Page 228);
thence North 51[d] 19' 21" E along the northwesterly boundary of lands
of said John S. Stone and Dorothy Stone 200 feet to a point on the southwesterly
boundary of West Hamilton Avenue; said point also being the northwesterly corner
of lands of said Stone and the northwesterly corner of Lot No. 10 as shown on
the aforementioned map;
thence Westerly along the southwesterly boundary of West Hamilton Avenue 60
feet to the point or place of beginning.
The above-described premises are intending to be the premises shown on Tax
map #322.18-1-1.1 in the City of Sherrill, County of Oneida.
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EXHIBIT B
ENVIRONMENTAL MATTERS
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