Attached files
EXHIBIT 10.14
SDK
REALTY CORP.
Mortgagor
PNC
BANK, NATIONAL ASSOCIATION,
AS
LENDER AND AS AGENT FOR ITSELF AND OTHER LENDERS
Mortgagee
MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS,
SECURITY
AGREEMENT AND FIXTURE FILING
(MASSACHUSETTS)
Dated as of March 5 2010
RECORD AND RETURN TO:
Hahn
& Hessen LLP
488
Madison Avenue, 14th
Floor
New York,
New York 10022
Attention: Joshua J. Cohen,
Esq.
TABLE OF
CONTENTS
BACKGROUND 1
GRANTING
CLAUSES 2
TERMS AND
CONDITIONS 4
1. Defined
Terms 5
2. Warranty of
Title 5
3. Payment and Performance of
Obligations 5
4.
Requirements 5
5. Payment of Taxes and Other
Impositions 5
6. Insurance and
Repairs 6
7. Restrictions on Liens and
Encumbrances. 7
8. Due on Sale and Other
Transfer Restrictions. 7
9. Condemnation/Eminent
Domain 7
10. Further
Assurances 7
11. Mortgagee’s Right to
Perform 7
12.
Remedies 7
13. Right of Mortgagee to
Credit Sale 9
14. Appointment of
Receiver 9
15. Extension, Release,
etc. 9
16. Security Agreement under
Uniform Commercial Code 10
17. Assignment of Leases and
Rents 11
18. Additional
Rights 11
19.
Notices 12
20. No Oral
Modification 12
21. Partial
Invalidity 12
22. Mortgagor’s Waiver of
Rights 12
23. Remedies Not
Exclusive 13
24.
Subrogation 13
25. Successors and
Assigns 14
26. No Waivers,
etc. 14
27. Governing Law,
etc. 14
28. Waiver of Trial by
Jury 14
29. Certain
Definitions 14
30. Release and
Satisfaction 15
31. Intentionally
Omitted. 15
32. Mortgagee’s
Fees 15
33. Massachusetts State
Specific Provisions: 15
34.
Severability. . 16
MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY
AGREEMENT AND FIXTURE FILING
THIS
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(this “Mortgage”)
dated as of the 5th day of March, 2010, by SDK REALTY CORP., a corporation
organized under the laws of the Commonwealth of Massachusetts, having an office
at 10 Glenville Street, Greenwich, CT 06831 (the “Mortgagor”),
in favor of PNC BANK, NATIONAL ASSOCIATION (“PNC”),
having an office at 340 Madison Avenue, New York, New York 10173 (PNC, in its
capacity as Lender and as Agent for itself and the Lenders now or hereafter
named in the Credit Agreement (as defined below), the “Mortgagee”). All
capitalized terms used but not otherwise defined in this Mortgage shall have the
meanings ascribed to them in the Guaranty, or if not defined therein, in the
Credit Agreement.
BACKGROUND
A. Presstek,
Inc., PRESSTEK Europe Limited and each other Person which becomes a Borrower
under the Credit Agreement (collectively, the “Credit
Parties”) are parties to that certain Revolving Credit and Security
Agreement dated as of the date hereof, by and among, the Credit Parties and
Mortgagee (as same may be hereinafter amended, modified, restated or
supplemented from time to time, the “Credit
Agreement”).
B. Pursuant
to the Credit Agreement, the Mortgagee will make available to Borrowers (i)
certain revolving loans and other extensions of credit in the maximum principal
amount of TWENTY-FIVE MILLION AND 00/100 DOLLARS ($25,000,000.00) (the “Loan”)
to be evidenced by the Revolving Credit Note, dated as of the date hereof (as
amended, modified, restated or supplemented from time to time, the “Note”);
and (ii) the issuance of the Letters of Credit in connection therewith in the
amount set forth therein.
C. Mortgagor
has executed that certain Guarantor Security Agreement, dated as of the date
hereof, between [Mortgagor and Mortgagee] (as may be amended, modified, restated
or supplemented from time to time, the “Guaranty
Security Agreement”), and that certain Guaranty, dated as of the date
hereof, in favor of Mortgagee (as may be amended, modified, restated or
supplemented from time to time, the “Guarantee”;
collectively with the Guaranty Security Agreement, the “Guaranty
Documents”), to guarantee the payment and performance by Borrowers of all
Obligations in the maximum principal amount of TWENTY-FIVE MILLION AND 00/100
DOLLARS ($25,000,000.00).
D. Mortgagor
(i) is the owner of the fee simple estate in the parcels of real property
located in the South Hadley, County of Hampshire and County of Hampden,
Commonwealth of Massachusetts, as more particularly described in Schedule “A”
annexed hereto (together with all estates and development rights now existing or
hereafter acquired for use in connection therewith, the “Owned
Land”); and (ii) owns, leases or otherwise has the right to use all of
the buildings, improvements, structures, and fixtures now or subsequently
located on the Owned Land (the “Improvements”;
the Owned Land and the Improvements being collectively referred to as the “Real
Estate”).
E. It is a
condition to the obligation of the Mortgagee to make the Loan to the Borrowers
under the Credit Agreement and to accept the Guaranty Documents from Mortgagor
that Mortgagor shall have executed and delivered this Mortgage to Mortgagee for
the ratable benefit of Mortgagee.
GRANTING
CLAUSES
For good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor agrees that to secure the payment and performance of all
Obligations under the Guaranty Documents;
MORTGAGOR
HEREBY MORTGAGES, GRANTS, BARGAINS, SELLS, WARRANTS, CONVEYS, ALIENATES,
REMISES, RELEASES, ASSIGNS, SETS OVER, TRANSFERS, GIVES AND CONFIRMS TO THE
MORTGAGEE, ITS SUCCESSORS AND ASSIGNS, WITH POWER OF SALE, FOR THE BENEFIT OF
THE MORTGAGEE, ITS SUCCESSORS AND ASSIGNS, WITH MORTGAGE COVENANTS, UPON THE
STATUTORY CONDITION AND WITH THE STATUTORY POWER OF SALE, AND CREATES A MORTGAGE
INTEREST AND SECURITY INTEREST (COLLECTIVELY, “LIEN”),
TO SECURE THE OBLIGATIONS (AS DEFINED IN THE CREDIT AGREEMENT), IN:
(a) the Owned
Land;
(b) all
right, title and interest Mortgagor now has or may hereafter acquire in and to
the Improvements or any part thereof and all the estate, right, title, claim or
demand whatsoever of Mortgagor, in possession or expectancy, in and to the Real
Estate or any part thereof;
(c) all
right, title and interest of Mortgagor in, to and under all easements, rights of
way, licenses, operating agreements, abutting strips and gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water and flowage
rights, development rights, air rights, mineral and soil rights, plants,
standing and fallen timber, and all estates, rights, titles, interests,
privileges, licenses, tenements, hereditaments and appurtenances belonging,
relating or appertaining to the Real Estate, and any reversions, remainders,
rents, issues, profits and revenue thereof and all land lying in the bed of any
street, road or avenue, in front of or adjoining the Real Estate to the center
line thereof;
(d) all of
the fixtures, equipment, furnishings, fittings and appliances, and all
appurtenances and additions thereto and substitutions or replacements thereof
(together with, in each case, attachments, components, parts and accessories)
currently owned or subsequently acquired by Mortgagor and now or subsequently
attached to, or contained in or used in connection with any operation or letting
of the Real Estate, including but without limiting the generality of the
foregoing, all screens, awnings, shades, blinds, curtains, draperies, carpets,
rugs, storm doors and windows, heating, electrical, and mechanical equipment,
lighting, switchboards, plumbing, ventilating, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, escalators, elevators,
loading and unloading equipment and systems, stoves, ranges, laundry equipment,
cleaning systems (including window cleaning apparatus), telephones,
communication systems (including satellite dishes and antennae), sprinkler
systems and other fire prevention and extinguishing apparatus and materials,
security systems, motors, engines, machinery, pipes, pumps, tanks, conduits,
appliances, fittings and fixtures of every kind and description (all of the
foregoing in this paragraph (d) being referred to as the “Equipment”);
(e) all
right, title and interest of Mortgagor in and to all substitutes and
replacements of, and all additions and improvements to, the Real Estate and the
Equipment, subsequently acquired by or released to Mortgagor or constructed,
assembled or placed by Mortgagor on the Real Estate, immediately upon such
acquisition, release, construction, assembling or placement, including, without
limitation, any and all building materials whether stored at the Real Estate or
offsite, and, in each such case, without any further deed, conveyance,
assignment or other act by Mortgagor;
(f) all
right, title and interest of Mortgagor in, to and under all leases, subleases,
underlettings, concession agreements, management agreements, licenses and other
agreements relating to the use or occupancy of the Real Estate or the Equipment
or any part thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated, extended,
renewed or modified from time to time, the “Leases”),
and all rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income, rents,
issues and profits thereof, together with all other rents, royalties, issues,
profits, revenue, income and other benefits arising from the use and enjoyment
of the Mortgaged Property (as defined below) (collectively, the “Rents”);
(g) all
unearned premiums under insurance policies now or subsequently obtained by
Mortgagor relating to the Real Estate or Equipment and Mortgagor’s interest in
and to all proceeds of any such insurance policies (including title insurance
policies) including the right to collect and receive such proceeds, subject to
the provisions relating to insurance generally set forth below; and, subject to
the provisions relating to condemnation and eminent domain set forth below, all
right, title and interest of Mortgagor in and to all awards and other
compensation, including the interest payable thereon and the right to collect
and receive the same, made to the present or any subsequent owner of the Real
Estate or Equipment for the taking by eminent domain, condemnation or otherwise,
of all or any part of the Real Estate or any easement or other right
therein;
(h) to the
extent not prohibited under the applicable contract, consent, license or other
item unless the appropriate consent has been obtained, all right, title and
interest of Mortgagor in and to (i) all contracts from time to time executed by
Mortgagor or any manager or agent on its behalf relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing of
the Real Estate or Equipment or any part thereof and all agreements and options
relating to the purchase or lease of any portion of the Real Estate or any
property which is adjacent or peripheral to the Real Estate, together with the
right to exercise such options and all leases of Equipment, (ii) all consents,
licenses, building permits, certificates of occupancy and other governmental
permits and approvals relating to construction, completion, occupancy, use or
operation of the Real Estate or any part thereof, and (iii) all drawings, plans,
specifications and similar or related items relating to the Real
Estate;
(i) all
refunds, rebates or credits in connection with a reduction in all real estate
taxes, government assessments or impositions, lienable water charges, lienable
sewer rents, assessments due under owner association documents, ground rents,
vault charges and license fees for the use of vaults chutes and all other
charges, now or hereafter levied or assessed against the Real Estate, including,
without limitation, rebates as a result of tax certiorari or any other
applications or proceedings for reduction;
(j) all
accounts, escrows, chattel paper, claims, deposits, trade names, trademarks,
service marks, logos, copyrights, goodwill, books and records and all other
general intangibles relating to or used in connection with the operation of the
Real Estate;
(k) all
reserves, escrows and deposit accounts maintained by Mortgagor with respect to
the Real Estate, together with all cash, checks, drafts, certificates,
securities, investment property, financial assets, instruments and other
property from time to time held therein, and all proceeds, products,
distributions, dividends or substitutions thereon or thereof;
(l) the
right, in the name and on behalf of Mortgagor, to commence any action or
proceeding to protect the interest of Mortgagee in the Real Estate and to appear
in and defend any action or proceeding brought with respect to the Real
Estate;
(m) all
proceeds, both cash and noncash, of the foregoing; and
(n) Any and
all other rights of Mortgagor in and to the items set forth in the foregoing
subsections (a) through (m), inclusive, and in and to the Real
Estate.
(All of
the foregoing property and rights and interests now owned or held or
subsequently acquired by Mortgagor and described in the foregoing clauses (a)
through (c) are collectively referred to as the “Premises”,
and those described in the foregoing clauses (a) through (n) are collectively
referred to as the “Mortgaged
Property”).
TO HAVE
AND TO HOLD the Mortgaged Property and the rights and privileges hereby
mortgaged unto Mortgagee, its successors and assigns for the uses and purposes
set forth, until the Obligations are fully paid and performed,
PROVIDED, HOWEVER, that the
condition of this Mortgage is such that at such time as the Loan, the
Obligations and the amounts due hereunder shall have been paid in full, no
Letters of Credit shall be outstanding and no obligations then remain under this
Mortgage, the Credit Agreement or any Document, the Mortgaged Property shall be
released from the Liens created hereby, and this Mortgage and all obligations
(other than those expressly stated to survive such termination) of the Mortgagee
and the Mortgagor hereunder shall terminate. Following any such
termination, at the request and at the sole expense of Mortgagor, the Mortgagee
shall execute and deliver to Mortgagor such documents as Mortgagor shall
reasonably request to evidence such termination.
TERMS AND
CONDITIONS
Mortgagor
further represents, warrants, covenants and agrees with Mortgagee and the
Secured Parties as follows:
1. Defined
Terms
. Capitalized
terms used herein (including in the “Background” and “Granting Clauses” sections
above) and not otherwise defined herein shall have the meanings ascribed thereto
in the Guaranty, or if not defined therein, in the Credit
Agreement. References in this Mortgage to the “Default Rate” shall mean the
interest rate applicable pursuant to Section 3.1 of the Credit
Agreement. References herein to the “Secured Parties” shall mean
the collective reference to (i) Mortgagee, (ii) the Lenders, (iii) the Agent,
(iv) PNC, (v) any other holders from time to time of all or any part of the
Obligations, and (vi) the respective successors, indorsees, transferees and
assigns of each of the foregoing.
2. Warranty of
Title
. Mortgagor
warrants that it has good record title in fee simple to the Real Estate, subject
only to (a) the matters that are set forth in Schedule B of the title insurance
policy or policies being issued to Mortgagee by Chicago Title Insurance Company
to insure the Lien of this Mortgage and (b) liens permitted by the Credit
Agreement or by any of the other Documents (the “Permitted
Exceptions”). Mortgagor shall warrant, defend and preserve such title
and the Lien of this Mortgage against all material claims of all persons and
entities (not including the holders of the Permitted
Exceptions). Mortgagor represents and warrants that it has the right
to encumber the Mortgaged Property.
3. Payment and Performance of
Obligations
. Mortgagor
shall pay and perform the Obligations in accordance with the applicable
provisions of the Guaranty Documents.
4. Requirements
. Mortgagor
shall comply in all material respects with all covenants, restrictions and
conditions now or later of record which may be applicable to any of the
Mortgaged Property, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of any of the
Mortgaged Property except where a failure to do so could not reasonably be
expected to have a Material Adverse Effect on (i) the current business,
operations or condition (financial or otherwise) of the Mortgagor, (ii) the
current use of the Mortgaged Property or (iii) the value of the Mortgaged
Property (assuming continuation of its current use).
5. Payment of Taxes and Other
Impositions
.
(a) Prior to
the date on which any fine, penalty, interest or cost may be added thereto or
imposed, Mortgagor shall pay and discharge all material taxes, charges and
assessments of every kind and nature assessed against the Mortgaged Property,
all charges for any easement or agreement maintained for the benefit of any of
the Real Estate, all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents and charges, vault taxes
and all other public charges even if unforeseen or extraordinary, imposed upon
or assessed against, or arising in respect of the occupancy, use or possession
thereof, to the extent they may become a lien on any of the Real Estate,
together with any penalties or interest on any of the foregoing (all of the
foregoing are collectively referred to herein as the “Impositions”),
except where (i) the validity or amount thereof is being contested in good faith
by appropriate proceedings and (ii) the Mortgagor has set aside on its books
adequate reserves with respect thereto in accordance with GAAP. Upon
request by Mortgagee, Mortgagor shall deliver to Mortgagee evidence reasonably
acceptable to Mortgagee showing the payment of any such Imposition, to the
extent payment is required by this Mortgage. If by law any
Imposition, at Mortgagor’s option, may be paid in installments (whether or not
interest shall accrue on the unpaid balance of such Imposition), Mortgagor may
elect to pay such Imposition in such installments and shall be responsible for
the payment of such installments with interest, if any.
(b) Nothing
herein shall affect any right or remedy of Mortgagee under this Mortgage or
otherwise, without notice or demand to Mortgagor, to pay any Imposition after
the date such Imposition shall have become delinquent to the extent payment is
required by this Mortgage, and add to the Obligations the amount so paid,
together with interest from the time of payment at the Default
Rate. Any sums paid by Mortgagee in discharge of any
Impositions shall be (i) secured hereby prior to any right or title to, interest
in, or claim upon the Premises subordinate to the Lien of this Mortgage, and
(ii) payable on demand by Mortgagor to Mortgagee together with interest at the
Default Rate as set forth above.
6. Insurance and
Repairs
.
(a) Mortgagor
shall maintain the insurance required pursuant to the Guaranty
Documents.
(b) If any
portion of the Improvements is located in an area identified as a special flood
hazard area by the Federal Emergency Management Agency or other applicable
agency, Mortgagor shall maintain or cause to be maintained, flood insurance in
an amount reasonably satisfactory to Mortgagee, but in no event more than the
maximum limit of coverage available under the National Flood Insurance Act of
1968, as amended.
(c) If the
Mortgaged Property, or any part thereof, shall be destroyed, or materially
damaged, Mortgagor shall give prompt notice thereof to Mortgagee.
(d) In the
event of foreclosure of this Mortgage or other transfer of title in lieu of
foreclosure to the Mortgaged Property, all right, title and interest of
Mortgagor in and to any insurance policies then in force shall pass to the
purchaser or grantee.
(e) All
proceeds of insurance will be applied as provided in the Guaranty Documents, or
if not provided for in the Guaranty Documents, then as provided for in the
Credit Agreement, as if Mortgagor were a signatory thereto.
(f) Mortgagor
promptly shall comply with and conform in all material respects to (i) all
provisions of each such insurance policy, and (ii) all requirements of the
insurers applicable to Mortgagor or to any of the Mortgaged Property or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration or
repair of any of the Mortgaged Property. Mortgagor shall not use or
permit the use of the Mortgaged Property in any manner which would permit any
insurer to cancel any insurance policy or void coverage required to be
maintained by this Mortgage.
(g) If
Mortgagor is in default of its obligations to insure or deliver any such prepaid
policy or policies, then Mortgagee, at its option upon five (5) days’ notice to
Mortgagor, may effect such insurance from year to year at rates substantially
similar to the rate at which Mortgagor had insured the Premises, and pay the
premium or premiums therefor, and Mortgagor shall pay to Mortgagee on demand
such premium or premiums so paid by Mortgagee with interest from the time of
payment at the Default Rate.
7. Restrictions on Liens and
Encumbrances. Except for the Lien of this Mortgage, the Liens
permitted by the Guaranty Documents and the easements permitted by the Guaranty
Documents, Mortgagor shall not further mortgage, nor otherwise encumber the
Mortgaged Property nor create or suffer to exist any lien, charge or encumbrance
on the Mortgaged Property, or any part thereof, whether superior or subordinate
to the Lien of this Mortgage and whether recourse or non-recourse.
8. Due on Sale and Other
Transfer Restrictions. The Mortgagor, except as expressly
permitted by the Guaranty Documents, shall not sell, transfer, convey or assign
all or any portion of, or any interest in, the Mortgaged Property.
9. Condemnation/Eminent
Domain
. Promptly
upon receiving notice of the institution of any proceedings for the condemnation
of the Mortgaged Property, or any material portion thereof, Mortgagor will
notify Mortgagee of the pendency of such proceedings. All awards and
proceeds shall be deemed net cash proceeds of a property insurance policy and
shall be applied as provided in the Credit Agreement.
10. Further
Assurances
. To
further assure Mortgagee’s rights under this Mortgage, Mortgagor agrees promptly
upon demand of Mortgagee to do any act or execute any additional documents
(including, but not limited to, security agreements on any personalty included
or to be included in the Mortgaged Property and a separate assignment of each
Lease in recordable form) as may be reasonably required by Mortgagee to confirm
the Lien of this Mortgage and all other rights or benefits conferred on
Mortgagee by this Mortgage.
11. Mortgagee’s Right to
Perform
. If
any Borrower fails to perform any of the covenants or agreements of such
Borrower, within the applicable grace period, if any, provided for in the Credit
Agreement, or if Mortgagor fails to perform any of the covenants or agreements
of Mortgagor, within the applicable grace period, if any, provided for in the
Guaranty Documents, Mortgagee, without waiving or releasing Mortgagor from any
obligation or default under this Mortgage, may, at any time upon five (5)
Business Days’ notice to Mortgagor (but shall be under no obligation to) pay or
perform the same, and the amount or cost thereof, with interest at the Default
Rate, shall immediately be due from Mortgagor to Mortgagee and the same shall be
secured by this Mortgage and shall be a lien on the Mortgaged Property prior to
any right, title to, interest in, or claim upon the Mortgaged Property attaching
subsequent to the lien of this Mortgage. No payment or advance of
money by Mortgagee under this Section shall be deemed or construed to cure
Borrower’s or Mortgagor’s Event of Default after notice of such Event of Default
has been given by Mortgagee or waive any right or remedy of
Mortgagee.
12. Remedies
.
(a) Upon the
occurrence and during the continuance of any Event of Default, Mortgagee may
immediately 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, including, but not limited to, the following actions, each of which
may be pursued concurrently or otherwise, at such time and in such manner as
Mortgagee may determine, in its sole discretion, without impairing or otherwise
affecting the other rights and remedies of Mortgagee:
(i) Mortgagee
may, to the extent permitted by applicable law, (A) institute and maintain an
action of foreclosure against all or any part of the Mortgaged Property, (B)
institute and maintain an action on any or all of the Guaranty Documents, (C)
sell all or part of the Mortgaged Property (Mortgagor expressly granting to
Mortgagee the power of sale), or (D) take such other action at law or in equity
for the enforcement of this Mortgage or the Guaranty Documents as the law may
allow. Mortgagee may proceed in any such action to final judgment and
execution thereon for all sums due hereunder, together with interest thereon at
the Default Rate and all costs of suit, including, without limitation,
reasonable attorneys’ fees and disbursements. Interest at the Default Rate shall
be due on any judgment obtained by Mortgagee from the date of judgment until
actual payment is made of the full amount of the judgment; and
(ii) Mortgagee
may personally, or by its agents, attorneys and employees and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Obligations enter into and upon the Mortgaged Property and each
and every part thereof and exclude Mortgagor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Mortgagor hereby
agreeing to surrender possession of the Mortgaged Property to Mortgagee upon
demand at any such time) and use, operate, manage, maintain and control the
Mortgaged Property and every part thereof. Following such entry and taking of
possession, Mortgagee shall be entitled, without limitation, (x) to lease all or
any part or parts of the Mortgaged Property for such periods of time and upon
such conditions as Mortgagee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any lease and (z) generally to execute, do and perform
any other act, deed, matter or thing concerning the Mortgaged Property as
Mortgagee shall deem appropriate as fully as Mortgagor might do.
(b) In case
of a foreclosure sale, the Real Estate may be sold, at Mortgagee’s election, in
one parcel or in more than one parcel and Mortgagee is specifically empowered
(without being required to do so, and in its sole and absolute discretion) to
cause successive sales of portions of the Mortgaged Property to be
held.
(c) In the
event of any breach of the terms contained in this Mortgage that constitutes a
continuing Event of Default for which Mortgagee has given notice thereof,
Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
(d) It is
agreed that if an Event of Default shall occur and be continuing and notice of
such Event of Default has been given by the Mortgagee, any and all proceeds of
the Mortgaged Property received by Mortgagee shall be held by Mortgagee for the
benefit of the Lenders as collateral security for the Obligations (whether
matured or unmatured), and shall be applied in payment of the Obligations in
accordance with the Credit Agreement.
13. Right of Mortgagee to Credit
Sale
. Upon
the occurrence of any sale made under this Mortgage, whether made under the
power of sale 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. In lieu of paying cash therefor, Mortgagee may make
settlement for the purchase price by crediting upon the Obligations or other
sums secured by this Mortgage, the net sales price after deducting therefrom the
expenses of sale and the cost of the action and any other sums which Mortgagee
is authorized to deduct under this Mortgage. In such event, this
Mortgage, the Guaranty Documents and documents evidencing expenditures secured
hereby may be presented to the person or persons conducting the sale in order
that the amount so used or applied may be credited upon the Obligations as
having been paid.
14. Appointment of
Receiver
. If
an Event of Default shall have occurred and be continuing and notice of such
Event of Default has been given by Mortgagee, Mortgagee as a matter of right and
without notice to Mortgagor, unless otherwise required by applicable law, and
without regard to the adequacy or inadequacy of the Mortgaged Property or any
other collateral or the interest of Mortgagor therein as security for the
Obligations, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property,
without requiring the posting of a surety bond, and without reference to the
adequacy or inadequacy of the value of the Mortgaged Property or the solvency or
insolvency of Mortgagor or any other party obligated for payment of all or any
part of the Obligations, and whether or not waste has occurred with respect to
the Mortgaged Property, and Mortgagor hereby irrevocably consents to such
appointment and waives notice of any application therefor (except as may be
required by law). Any such receiver or receivers or manager shall
have all the usual powers and duties of receivers in like or similar cases and
all the powers and duties of Mortgagee in case of entry as provided in this
Mortgage, including, without limitation and to the extent permitted by law, the
right to enter into leases of all or any part of the Mortgaged Property, and
shall continue as such and exercise all such powers until the date of
confirmation of sale of the Mortgaged Property unless such receivership is
sooner terminated.
15. Extension, Release,
etc.
Without
affecting the Lien or charge of this Mortgage upon any portion of the Mortgaged
Property not then or theretofore released as security for the full amount of the
Obligations, Mortgagee may, from time to time and without notice, agree to (i)
release any person liable for the indebtedness borrowed or guaranteed under the
Documents and/or the Guaranty Documents, (ii) extend the maturity or alter any
of the terms of the indebtedness borrowed or guaranteed under the Documents
and/or the Guaranty Documents or any other guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Mortgagee’s option any parcel, portion or all of the Mortgaged
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto.
(b) 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 the Lien of this Mortgage or any liens, rights, powers or remedies
of Mortgagee hereunder, and such liens, rights, powers and remedies shall
continue unimpaired.
(c) If
Mortgagee shall have the right to foreclose this Mortgage or to direct a power
of sale, Mortgagor authorizes Mortgagee at its option to foreclose the lien of
this Mortgage (or direct the sale of the Mortgaged Property, as the case may be)
subject to the rights of any tenants of the Mortgaged Property. The
failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights, or to provide notice to such tenants
as required in any statutory procedure governing a sale of the Mortgaged
Property, or to terminate such tenant’s rights in such sale will not be asserted
by Mortgagor as a defense to any proceeding instituted by Mortgagee to collect
the Obligations or to foreclose the Lien of this Mortgage.
(d) Unless
expressly provided otherwise, in the event that ownership of this Mortgage and
title to the Mortgaged Property or any estate therein shall become vested in the
same person or entity, this Mortgage shall not merge in such title but shall
continue as a valid Lien on the Mortgaged Property for the amount secured
hereby.
16. Security Agreement under
Uniform Commercial Code
. (a)
It is the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the “Code”)
of the State in which the Mortgaged Property is located solely with respect to
Mortgaged Property which is personal property. If an Event of Default
shall occur and be continuing under this Mortgage and notice of such Event of
Default has been given by Mortgagee, then in addition to having any other right
or remedy available at law or in equity, Mortgagee shall have the option of
either (i) proceeding under the Code and exercising such rights and remedies as
may be provided to a secured party by the Code with respect to all or any
portion of the Mortgaged Property which is personal property (including, without
limitation, taking possession of and selling such property) or (ii) treating
such property as real property and proceeding with respect to both the real and
personal property constituting the Mortgaged Property in accordance with
Mortgagee’s rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If
Mortgagee shall elect to proceed under the Code, then ten days’ notice of sale
of the personal property shall be deemed reasonable notice and the reasonable
expenses of retaking, holding, preparing for sale, selling and the like incurred
by Mortgagee shall include, but not be limited to, reasonable attorneys’ fees
and legal expenses.
(b) Certain
portions of the Mortgaged Property are or will become “fixtures” (as that term
is defined in the Code) affixed to the Real Estate, and this Mortgage, upon
being filed for record in the real estate records of the county wherein such
fixtures are situated, shall operate also as a financing statement filed as a
“fixture filing” within the meaning of Sections 9-334 and 9-502 of said Code
upon such portions of the Mortgaged Property that are or become fixtures. The
addresses of the Mortgagor, as debtor, and Mortgagee, as secured party, are set
forth in the first page of this Mortgage.
(c) The real
property to which the fixtures relate is described in Schedule A
hereto. The record owner of the real property described in Schedule A
hereto is Mortgagor. The name, type of organization and jurisdiction
of organization of the debtor for purposes of this financing statement are the
name, type of organization and jurisdiction of organization of the Mortgagor set
forth in the first paragraph of this Mortgage, and the name of the secured party
for purposes of this financing statement is the name of the Mortgagee set forth
in the first paragraph of this Mortgage. The mailing address of the
Mortgagor/debtor is the address of the Mortgagor set forth in the first
paragraph of this Mortgage. The mailing address of the
Mortgagee/secured party from which information concerning the security interest
hereunder may be obtained is the address of the Mortgagee set forth in the first
paragraph of this Mortgage.
17. Assignment of Leases and
Rents
.
(a) Mortgagor
hereby assigns to Mortgagee all of Mortgagee’s right, title and interest in and
to all current and future Leases and Rents as further security for the payment
of and performance of the Obligations, and Mortgagor grants to Mortgagee the
right to enter the Mortgaged Property for the purpose of collecting the same and
to let the Mortgaged Property or any part thereof, and to apply the Rents on
account of the Obligations. The foregoing assignment and grant is present and
absolute and shall continue in effect until the Obligations are fully paid and
performed, but Mortgagee hereby waives the right to enter the Mortgaged Property
for the purpose of collecting the Rents and Mortgagor shall be entitled to
collect, receive, use and retain the Rents until the occurrence and continuance
of an Event of Default under this Mortgage for which notice has been given by
the Mortgagee; such right of Mortgagor to collect, receive, use and retain the
Rents may be revoked by Mortgagee upon the occurrence and during the continuance
of any Event of Default under this Mortgage for which notice has been given by
Mortgagee by giving not less than five (5) days’ written notice of such
revocation to Mortgagor; in the event such notice is given, Mortgagor shall pay
over to Mortgagee, or to any receiver appointed to collect the Rents, any lease
security deposits, and shall pay monthly in advance to Mortgagee, or to any such
receiver, the fair and reasonable rental value as determined by Mortgagee for
the use and occupancy of such part of the Mortgaged Property as may be in the
possession of Mortgagor or any affiliate of Mortgagor, and upon default in any
such payment Mortgagor and any such affiliate will vacate and surrender the
possession of the Mortgaged Property to Mortgagee or to such receiver, and in
default thereof may be evicted by summary proceedings or
otherwise. Mortgagor shall not accept prepayments of installments of
Rent to become due for a period of more than one month in advance (except for
security deposits and estimated payments of percentage rent, if
any). Mortgagor represents and warrants to Mortgagee
that:
(i) Mortgagor
has not affirmatively done any act which would prevent Mortgagee from, or limit
Mortgagee in, acting under any of the provisions of the foregoing
assignment.
(ii) Except
for any matter disclosed in the Guaranty Documents, no action has been brought
or, so far as is known to Mortgagor, is threatened, which would interfere in any
way with the right of Mortgagor to execute the foregoing assignment and perform
all of Mortgagor’s obligations contained in this Section and in the
Leases.
18. Additional
Rights
. The
holder of any subordinate lien on the Mortgaged Property shall have no right to
terminate any Lease whether or not such Lease is subordinate to this Mortgage
nor shall Mortgagor consent to any holder of any subordinate lien or subordinate
Mortgage joining any tenant under any Lease in any action to foreclose the lien
or modify, interfere with, disturb or terminate the rights of any tenant under
any Lease. By recordation of this Mortgage all subordinate
lienholders and the mortgagees and beneficiaries under subordinate mortgages are
subject to and notified of this provision, and any action taken by any such
lienholder or beneficiary contrary to this provision shall be null and
void. Any such application shall not be construed to cure or waive
any Event of Default for which notice has been given by Mortgagee or invalidate
any act taken by Mortgagee on account of such Event of Default for which notice
has been given by mortgagee.
19. Notices
. All
notices, requests, demands and other communications hereunder shall be given in
accordance with the provisions of Section 15 of the Guaranty Security Agreement
to Mortgagor and to Mortgagee as specified therein.
20. No Oral
Modification
. This
Mortgage may not be amended, supplemented or otherwise modified except in
accordance with the provisions of Section 18 of the Guaranty Security
Agreement. Any agreement made by Mortgagor and Mortgagee after the
date of this Mortgage relating to this Mortgage shall be superior to the rights
of the holder of any intervening or subordinate lien or
encumbrance.
21. Partial
Invalidity
. In
the event any one or more of the provisions contained in this Mortgage shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, but each shall be construed as if such invalid, illegal or unenforceable
provision had never been included. Notwithstanding to the contrary anything
contained in this Mortgage or in any provisions of any Document or any the
Guaranty Document, the obligations of Mortgagor and of any other obligor under
this Mortgage and the Guaranty Documents shall be subject to the limitation that
Mortgagee shall not charge, take or receive, nor shall Mortgagor or any other
obligor be obligated to pay to Mortgagee, any amounts constituting interest in
excess of the maximum rate permitted by law to be charged by
Mortgagee.
22. Mortgagor’s Waiver of
Rights
. (a)
Mortgagor hereby voluntarily and knowingly releases and waives any and all
rights to retain possession of the Mortgaged Property after the occurrence and
continuance of an Event of Default hereunder for which notice has been give by
Mortgagee and any and all rights of redemption from sale under any order or
decree of foreclosure (whether full or partial), pursuant to rights, if any,
therein granted, as allowed under any applicable law, on its own behalf, on
behalf of all persons claiming or having an interest (direct or indirectly) by,
through or under each constituent of Mortgagor and on behalf of each and every
person acquiring any interest in the Mortgaged Property subsequent to the date
hereof, it being the intent hereof that any and all such rights or redemption of
each constituent of Mortgagor and all such other persons are and shall be deemed
to be hereby waived to the fullest extent permitted by applicable law or
replacement statute. Each constituent of Mortgagor shall not invoke
or utilize any such law or laws or otherwise hinder, delay, or impede the
execution of any right, power, or remedy herein or otherwise granted or
delegated to Mortgagee, but shall, permit the execution of every such right,
power, and remedy as though no such law or laws had been made or
enacted.
(b) To the
fullest extent permitted by law, Mortgagor waives the benefit of all laws now
existing or that may subsequently be enacted providing for (i) any appraisement
before sale of any portion of the Mortgaged Property, (ii) any extension of the
time for the enforcement of the collection of the Obligations or the creation or
extension of a period of redemption from any sale made in collecting such debt
and (iii) exemption of the Mortgaged Property from attachment, levy or sale
under execution or exemption from civil process. To the full extent
Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time insist
upon, plead, claim or take the benefit or advantage of any law now or hereafter
in force providing for any appraisement, valuation, stay, exemption, extension
or redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature (except as expressly provided in the Guaranty Documents) or
declare due the whole of the secured indebtedness and marshalling in the event
of exercise by Mortgagee of the foreclosure rights, power of sale, or other
rights hereby created.
23. Remedies Not
Exclusive
. Mortgagee
shall be entitled to enforce payment and performance of the Obligations and to
exercise all rights and powers under this Mortgage or under the Guaranty
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Obligations may now or hereafter be otherwise
secured, whether by Mortgage, mortgage, security agreement, pledge, lien,
assignment or otherwise. Neither the acceptance of this Mortgage nor its
enforcement, shall prejudice or in any manner affect Mortgagee’s rights to
realize upon or enforce any other security now or hereafter held by Mortgagee,
it being agreed that Mortgagee shall be entitled to enforce this Mortgage and
any other security now or hereafter held by Mortgagee in such order and manner
as Mortgagee may determine in its absolute discretion. No remedy
herein conferred upon or reserved to Mortgagee is intended to be exclusive of
any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. Every power
or remedy given by any of the Guaranty Documents to Mortgagee or to which
Mortgagee may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Mortgagee, as the case may be. In no event shall Mortgagee, in the
exercise of the remedies provided in this Mortgage (including, without
limitation, in connection with the assignment of Leases and Rents to Mortgagee,
or the appointment of a receiver and the entry of such receiver on to all or any
part of the Mortgaged Property), be deemed a “Mortgagee in possession,” and
Mortgagee shall not in any way be made liable for any act, either of commission
or omission, in connection with the exercise of such remedies.
24. Subrogation
. If
the Loan is used to pay, satisfy, discharge, extend or renew any indebtedness
secured by a pre-existing mortgage, or other lien encumbering the Mortgaged
Property (“Prior
Lien”), then to the extent of funds so used, Mortgagee shall
automatically, and without further action on its part, be subrogated to all
rights, including lien priority, held by the holder of the indebtedness secured
by the Prior Lien, whether or not the Prior Lien is released, and such former
rights are not waived but rather are continued in full force and effect in favor
of Mortgagee and are merged with the lien and security interest created herein
as cumulative security for payment of the Debt and performance of the
Obligations.
25. Successors and
Assigns
. All
covenants of Mortgagor contained in this Mortgage are imposed solely and
exclusively for the benefit of Mortgagee, and its successors and assigns, and no
other person or entity shall have standing to require compliance with such
covenants or be deemed, under any circumstances, to be a beneficiary of such
covenants, any or all of which may be freely waived in whole or in part by
Mortgagee at any time if in the sole discretion of Mortgagee such a waiver is
deemed advisable. All such covenants of Mortgagor shall run with the
land and bind Mortgagor, the successors and assigns of Mortgagor and all
subsequent owners, encumbrancers and tenants of the Mortgaged Property, and
shall inure to the benefit of Mortgagee and its successors and
assigns. The word “Mortgagor” shall be construed as if it read
“Mortgagors” whenever the sense of this Mortgage so requires and if there shall
be more than one Mortgagor, the obligations of the Mortgagors shall be joint and
several.
26. No Waivers,
etc.
Any
failure by Mortgagee to insist upon the strict performance by Mortgagor of any
of the terms and provisions of this Mortgage shall not be deemed to be a waiver
of any of the terms and provisions hereof, and Mortgagee, notwithstanding any
such failure, shall have the right thereafter to insist upon the strict
performance by Mortgagor of any and all of the terms and provisions of this
Mortgage to be performed by Mortgagor. Mortgagee may release,
regardless of consideration and without the necessity for any notice to or
consent by the holder of any subordinate lien on the Mortgaged Property, any
part of the security held for the obligations secured by this Mortgage without,
as to the remainder of the security, in any way impairing or affecting the lien
of this Mortgage or the priority of such lien over any subordinate lien or
Mortgage.
27. Governing Law,
etc.
This
Mortgage shall be governed by and construed and interpreted in accordance with
the laws of the Commonwealth of Massachusetts, except that Mortgagor expressly
acknowledges that by their respective terms the Guaranty shall be governed and
construed in accordance with the laws of the State of New York, and for purposes
of consistency, Mortgagor agrees that in any in personam proceeding related to
this Mortgage the rights of the parties to this Mortgage shall also be governed
by and construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State.
28. Waiver of Trial by
Jury
. Mortgagor
and Mortgagee each hereby irrevocably and unconditionally waive the right to
insist upon trial by jury in any action, claim, suit or proceeding relating to
this Mortgage. Mortgagor hereby waives all rights to interpose any counterclaim
in any suit brought by Mortgagee for foreclosure hereunder and all rights to
have any such suit consolidated with any separate suit, action or proceeding,
except to the extent that any counterclaim would be lost unless made in each
suit. Such waiver shall not be construed so as to prevent the
Mortgagor from interposing a counterclaim against Mortgagee concerning the
Obligations.
29. Certain
Definitions
. Unless
the context clearly indicates a contrary intent or unless otherwise specifically
provided herein, words used in this Mortgage shall be used interchangeably in
singular or plural form and the word “Mortgagor” shall mean “each Mortgagor or
any subsequent owner or owners of the Mortgaged Property or any part thereof or
interest therein,” the word “Mortgagee” shall mean “Mortgagee or any successor
agent for the Lenders,” the word “person” shall include any individual,
corporation, partnership, limited liability company, trust, unincorporated
association, government, governmental authority, or other entity, and the words
“Mortgaged Property” shall include any portion of the Mortgaged Property or
interest therein. 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. The captions in this Mortgage are for convenience or reference
only and in no way limit or amplify the provisions hereof.
30. Release and
Satisfaction
. If
any of the Mortgaged Property shall be sold, transferred or otherwise disposed
of by any Mortgagor in a transaction permitted by the Credit Agreement and/or
the Guaranty Documents and the net cash proceeds are applied in accordance with
the terms of the Credit Agreement and/or the Guaranty Documents, then Mortgagee,
at the request and sole expense of Mortgagor, shall execute and deliver to
Mortgagor all releases or other documents reasonably necessary or desirable for
the release of any and all liens created hereby on such Mortgaged
Property. If the Obligations are paid in full in accordance with the
terms of the Credit Agreement and the Guaranty Documents, then Mortgagee, at the
request and sole expense of Mortgagor, shall execute and deliver to Mortgagor a
satisfaction of this Mortgage in accordance with the applicable
law. The Mortgagor shall deliver to the Mortgagee, at least five (5)
Business Days prior to the date of the proposed release or satisfaction, a
written request for release or satisfaction identifying (in the case of a sale)
the sale or other disposition in reasonable detail, including the price thereof
and any expenses in connection therewith, together with a certification by the
Mortgagor stating that such transaction (in the case of a sale) is in compliance
with, and permitted by, the Credit Agreement, the other Documents, and/or the
Guaranty Documents. Mortgagee shall also, promptly after written
request therefore, deliver customary “pay-off letters.
31. Intentionally
Omitted.
32. Mortgagee’s
Fees
. Mortgagor
shall pay all costs, fees and expenses incurred by Mortgagee and Mortgagee’s
agents and counsel in connection with the performance by Mortgagee of
Mortgagee’s duties hereunder, and all such costs, fees and expenses shall be
secured by this Mortgage.
33. Massachusetts State Specific
Provisions:
(i) Principles of
Construction. In the event of any inconsistencies between the
terms and conditions of this Section 33 and the terms of this Mortgage, the term
and conditions of this Section 33 shall control and be binding.
(ii) Statutory Power of
Sale. This Mortgage is upon the STATUTORY CONDITION and for
any breach of which upon the occurrence and during the continuance of an Event
of Default, Mortgagee shall have the STATUTORY POWER OF SALE, and on the further
condition that upon any default Mortgagee shall have as to the personal property
all the rights and remedies of a secured party under the Massachusetts Uniform
Commercial Code, including the option to proceed as to the personal property
under the law relating to foreclosure of real estate mortgages, and such further
remedies as from time to time may hereafter be provided in Massachusetts for a
secured party.
(iii) All of
the Mortgagee’s rights under this Mortgage may be exercised together or
separately. In exercising its power of sale under this Mortgage, Mortgagee may
sell the personal property, or any part thereof, either separately from or
together with the real property portion of the Mortgaged Property or any part of
the Mortgaged Property, either as one unit or in such separate units, all as
Mortgagee may in its sole discretion elect; and Mortgagee may sell the Mortgaged
Property or any part of the Mortgaged Property either separately from or
together with the whole or any part of other collateral with may constitute
security for any obligation secured by the Mortgaged Property as Mortgagee in
its sole discretion may elect. Without limiting the generality of the foregoing,
Mortgagee’s STATUTORY POWER OF SALE shall not be exhausted until all the
Mortgaged Property shall have been struck down at a foreclosure auction and the
successful bidders have all accepted and recorded the resulting foreclosure
deeds, it being expressly agreed that Mortgagee shall have the power to
foreclose upon and sell portions of the Mortgaged Property at different times or
days if Mortgagee so elects and Mortgagee also may continue to auction the
Premises at any foreclosure sale even if the amounts previously struck down at
prior foreclosure auction sales for other portions of the Mortgaged Property
exceed the amount owed to Mortgagee by Mortgagor (provided Mortgagee duly
accounts for the excess proceeds in accordance with applicable law). In the
event of any separate sale of personal property, Mortgagee will give Mortgagor
reasonable notice of the time and place of any public sale or of the time after
which any private sale or other intended disposition thereof is to be made, and
such requirement of reasonable notice shall be met if such notice is given at
least ten (10) days prior to such action, as described in Section 16(a)
hereof.
(iv) The term
“default” as used in the Statutory Power of Sale shall mean an Event of Default
as defined in the Guaranty or herein.
34. Severability. If
any part of this Mortgage is contrary to, prohibited by, or deemed invalid under
Applicable Laws or regulations, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but the remainder
hereof shall not be invalidated thereby and shall be given effect so far as
possible.
[Intentionally
left blank.]
IN WITNESS WHEREOF, the undersigned
hereby signs, seals and delivers this Mortgage.
|
Mortgagor’s
Organizational Identification Number: 04-3060820
|
SDK
REALTY CORP.
By: /S/ Jeffrey
Jacobson
Name: Jeffrey
Jacobson
Title:
President
|
STATE OF
CONNECTICUT
COUNTY OF
FAIRFIELD
On this
5th day of March, 2010, before me, the undersigned notary public, personally
appeared Jeffrey Jacobson, President of SDK REALTY CORP., proved to me through
satisfactory evidence of identification to be the person whose name is signed on
the preceding or attached document, and acknowledged to me that he signed it as
his free act and deed for its stated purpose.
/S/ Christopher J.
Lutzo
Notary
Public
My
commission expires: 1/31/2015
Schedule
A
Description of the Owned
Land
(See
attached.)