Exhibit 10.3
MORTGAGE
THIS MORTGAGE made the 27th day of June, 2002, between BOUNDLESS
TECHNOLOGIES, INC., a Delaware corporation, having an office at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Mortgagor") and JPMORGAN CHASE
BANK, a New York banking corporation having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Mortgagee"), as Collateral Agent for
JPMORGAN CHASE BANK ("JP"), SILICON VALLEY BANK ("Silicon") and NATIONAL
BANK OF CANADA ("National") (collectively, the "Banks").
W I T N E S S E T H:
Whereas the Mortgagor is the owner of a fee estate in the premises
described in Exhibit A attached hereto (the "Premises");
NOW, THEREFORE, to secure the payment of an indebtedness in the principal
sum of TWO MILLION FIVE HUNDRED SEVENTY THOUSAND AND 00/100 ($2,570,000.00)
DOLLARS, lawful money of the United States of America, to be paid with interest
(said indebtedness, interest and all other sums which may or shall become due
hereunder, collectively, the "Debt") according to certain Notes dated the date
hereof given by the Mortgagor, Boundless Manufacturing Services, Inc., Boundless
Acquisition Corp., and Boundless Corporation, jointly and severally to the Banks
as follows: $1,180,000 to JP, $1,180,000 to Silicon, and $590,000 to National
(collectively, the "Note"), the Mortgagor has mortgaged, given, granted,
bargained, sold, aliened, enfeoffed, conveyed, confirmed and assigned, and by
these presents does mortgage, give, grant, bargain, sell, alien, enfeoff,
convey, confirm and assign unto the Mortgagee forever all right, title and
interest of the Mortgagor now owned, or hereafter acquired, in and to the
following property, rights and interest (such property, rights and interests,
collectively, the "Mortgaged Property"):
(a) the Premises;
(b) all buildings and improvements now or hereafter located on the
Premises (the "Improvements");
(c) all of the estate, right, title, claim or demand of any nature
whatsoever of the Mortgagor, either in law or in equity, in possession or
expectancy, in and to the Mortgaged Property or any part thereof;
(d) all easements, rights-of-way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, 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 Mortgaged Property (including, without limitation,
any and all development rights, air rights or similar or comparable rights of
any nature whatsoever now or hereafter appurtenant to the Premises or now or
hereafter transferred to the Premises) and all land lying in the bed of any
street,
road or avenue, opened or proposed, in front of or adjoining the
Premises to the center line thereof;
(e) all machinery, apparatus, equipment, fittings, fixtures and other
property of every kind and nature whatsoever and all additions thereto and
renewals and replacements thereof, and all substitutions therefor now owned or
hereafter acquired by the Mortgagor, or in which the Mortgagor has or shall have
an interest, now or hereafter located upon or in, or attached to, any portion of
the Mortgaged Property or appurtenances thereto, and used or usable in
connection with the present or future operation and occupancy of the Mortgaged
Property as real property (by way of example, without limitation, HVAC, plumbing
and fire suppression), as opposed to the operation of a separate business
therein (by way of example, without limitation, conveyors, video alignment
machines and MIS servers and work stations) and all building equipment,
materials and supplies of any nature whatsoever owned by the Mortgagor, or in
which the Mortgagor has or shall have an interest, now or hereafter located upon
the Mortgaged Property and whether stored at the Mortgaged Property or off-site
(collectively, the "Equipment"), and the right, title and interest of the
Mortgagor in and to any of the Equipment which may be subject to any security
agreements (as defined in the Uniform Commercial Code of New York), superior in
lien to lien of this Mortgage and all proceeds and products of any of the above;
(f) all awards or payments, including interest thereon, and the right to
receive the same, which may be made with respect to the Mortgaged Property,
whether from the exercise of the right of eminent domain (including any transfer
made in lieu of the exercise of said right), or for any other injury to or
decrease in the value of the Mortgaged Property;
(g) all leases and other agreements affecting the use or occupancy of the
Mortgaged Property now or hereafter entered into (the "Leases") and the right to
receive and apply the rents, issues and profits of the Mortgaged Property (the
"Rents") to the payment of the Debt;
(h) all right, title and interest of the Mortgagor in and to (i) all
contracts from time to time executed by the Mortgagor or any manager or agent on
its behalf relating to the ownership, construction, maintenance, repair,
operation, occupancy, sale or financing of the Mortgaged Property or any part
thereof and all agreements relating to the purchase or lease of any portion of
the Mortgaged Property or any property which is adjacent or peripheral to the
Mortgaged Property, 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 approvals relating to construction,
completion, occupancy, use or operation of the Mortgaged Property or any part
thereof, and (iii) all drawings, plans, specifications and similar or related
items relating to the Mortgaged Property;
(i) Intentionally Omitted;
(j) all proceeds, both cash and non-cash, of the foregoing;
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(k) 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; and
(l) the right, in the name and on behalf of the 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 the
Mortgagee in the Mortgaged Property.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the proper use and benefit of the Mortgagee, and the successors and
assigns of the Mortgagee, forever.
AND the Mortgagor covenants and agrees with and represents and warrants to
the Mortgagee as follows:
1. Payment of Debt. The Mortgagor will pay the Debt at the time and in the
manner provided for its payment in the Note and in this Mortgage.
2. Warranty of Title.
(a) Subject only to those exceptions to title specifically set forth in
the title policy issued or to be issued by ▇▇▇▇▇▇▇ Title Insurance Company to
the Mortgagee and insuring the lien of this Mortgage, the Mortgagor warrants the
title to the Premises, the Improvements, the Equipment and the balance of the
Mortgaged Property. The Mortgagor also represents and warrants that (i) the
Mortgagor is now, and after giving effect to this Mortgage will be, in a solvent
condition, (ii) the execution and delivery of this Mortgage by the Mortgagor
does not constitute a "fraudulent conveyance" within the meaning of Title 11 of
the United States Code as now constituted or under any other applicable statute,
and (iii) no bankruptcy or insolvency proceedings are pending or contemplated by
or against the Mortgagor.
(b) The Mortgagor (and the undersigned representative of the Mortgagor, if
any) additionally represents and warrants that: (i) it has full power, authority
and legal right to execute this Mortgage, and to mortgage, give, grant, bargain,
sell, alien, enfeoff, convey, confirm and assign the Mortgaged Property pursuant
to the terms hereof, and to keep and observe all of the terms of this Mortgage
on the Mortgagor's part to be performed, (ii) if the Mortgagor is a corporation,
the Mortgagor is a duly organized and presently existing corporation and this
Mortgage has been executed by authority of its Board of Directors and with the
requisite consent of the holders of the outstanding shares of its capital stock
entitled to vote thereon, if such consent is required under the provisions of
the certificate of incorporation of the Mortgagor, (iii) if the Mortgagor is a
partnership, the Mortgagor is a duly authorized and validly existing general
partnership and this Mortgage has been executed by a duly authorized general
partner, and (iv) if the Mortgagor is a limited liability company, the Mortgagor
is a duly authorized validly existing limited liability company and this
Mortgage has been executed by a duly authorized manager thereof.
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3. Insurance. The Mortgagor (i) will keep the Improvements and the
Equipment insured against loss or damage by fire, standard extended coverage
perils and such other hazards as the Mortgagee shall from time to time require
in amounts approved by the Mortgagee, which amounts shall in no event be less
than 100% of the full insurable value of the Improvements and the Equipment and
shall be sufficient to meet all applicable co-insurance requirements, and (ii)
will maintain such other forms of insurance coverage with respect to the
Mortgaged Property as the Mortgagee shall from time to time require in amounts
approved by the Mortgagee. All policies of insurance (the "Policies") shall be
issued by insurers who are lawfully doing business in New York and are otherwise
acceptable in all respects to the Mortgagee. All Policies shall contain the
standard New York mortgagee non-contribution clause endorsement or an equivalent
endorsement satisfactory to the Mortgagee naming the Mortgagee as mortgagee
thereunder and shall otherwise be in form and substance satisfactory in all
respects to the Mortgagee. All Policies will, upon request of Mortgagee, name
Mortgagee as an additional insured, loss payee or other similar designation.
Blanket insurance policies shall not be acceptable for the purposes of this
paragraph unless otherwise approved to the contrary by the Mortgagee. The
Mortgagor shall pay the premiums for the Policies as the same become due and
payable. At the request of the Mortgagee, the Mortgagor will deliver the
Policies to the Mortgagee. Not later than ten (10) days prior to the expiration
date of each of the Policies, the Mortgagor will deliver to the Mortgagee a
renewal policy or policies marked "premium paid" or accompanied by other
evidence of payment of premium satisfactory to the Mortgagee. If at any time the
Mortgagee is not in receipt of written evidence that all insurance required
hereunder is in force and effect, the Mortgagee shall have the right without
notice to the Mortgagor to take such action as the Mortgagee deems necessary to
protect its interest in the Mortgaged Property, including, without limitation,
the obtaining of such insurance coverage as the Mortgagee in its sole discretion
deems appropriate, and all expenses incurred by the Mortgagee in connection with
such action or in obtaining such insurance and keeping it in effect shall be
paid by the Mortgagor to the Mortgagee upon demand. The Mortgagor shall at all
times comply with and shall cause the Improvements and Equipment and the use,
occupancy, operation, maintenance, alteration, repair and restoration thereof to
comply with the terms, conditions, stipulations and requirements of the
Policies. If the Premises, or any portion of the Improvements or the Equipment,
is located in a Federally designated "special flood hazard area," in addition to
the other Policies required under this paragraph, a flood insurance policy shall
be delivered by the Mortgagor to the Mortgagee. If the Mortgaged Property shall
be damaged or destroyed, in whole or in part, by fire or other property hazard
or casualty, the Mortgagor shall give prompt notice thereof to the Mortgagee.
Sums paid to the Mortgagee by any insurer may be retained and applied by the
Mortgagee toward payment of the Debt whether or not then due and payable in such
order, priority and proportions as the Mortgagee in its discretion shall deem
proper or, at the discretion of the Mortgagee, the same may be paid, either in
whole or in part, to the Mortgagor for such purposes as the Mortgagee shall
designate. If the Mortgagee shall receive and retain such insurance proceeds,
the lien of this Mortgage shall be reduced only by the amount thereof received
and retained by the Mortgagee and actually applied by the Mortgagee in reduction
of the Debt. The provisions of subsection 4 of Section 254 of the Real Property
Law of New York covering the insurance of buildings against loss by fire shall
not apply to this Mortgage.
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4. Payment of Taxes, etc. The Mortgagor shall pay all taxes, assessments,
water rates, sewer rents and other charges, including vault charges and license
fees for the use of vaults, chutes and similar areas adjoining the Premises, now
or hereafter levied or assessed against the Mortgaged Property and all insurance
premiums relating to the Policies (collectively, the "Taxes") prior to the date
upon which any fine, penalty, interest or cost may be added thereto or imposed
by law for the nonpayment thereof. The Mortgagor shall deliver to the Mortgagee,
upon request, receipted bills, canceled checks and other evidence satisfactory
to the Mortgagee evidencing the payment of the Taxes prior to the date upon
which any fine, penalty, interest or cost may be added thereto or imposed by law
for the nonpayment thereof.
5. Intentionally Omitted.
6. Condemnation. Notwithstanding any taking by any public or quasi-public
authority through eminent domain or otherwise, the Mortgagor shall continue to
pay the Debt at the time and in the manner provided for its payment in the Note
and this Mortgage and the Debt shall not be reduced until any award or payment
therefor shall have been actually received and applied by the Mortgagee to the
discharge of the Debt. The Mortgagee may apply the entire amount of any such
award or payment to the discharge of the Debt whether or not then due and
payable in such order, priority and proportions as the Mortgagee in its
discretion shall deem proper. If the Mortgaged Property is sold, through
foreclosure or otherwise, prior to the receipt by the Mortgagee of such award or
payment, the Mortgagee shall have the right, whether or not a deficiency
judgment on the Note shall have been sought, recovered or denied, to receive
such award or payment, or a portion thereof sufficient to pay the Debt,
whichever is less. The Mortgagor shall file and prosecute its claim or claims
for any such award or payment in good faith and with due diligence and cause the
same to be collected and paid over to the Mortgagee. The Mortgagor hereby
irrevocably authorizes and empowers the Mortgagee, in the name of the Mortgagor
or otherwise, to collect and receipt for any such award or payment and to file
and prosecute such claim or claims. Although it is hereby expressly agreed that
the same shall not be necessary in any event, the Mortgagor shall, upon demand
of the Mortgagee, make, execute and deliver any and all assignments and other
instruments sufficient for the purpose of assigning any such award or payment to
the Mortgagee, free and clear of any encumbrances of any kind or nature
whatsoever.
7. Leases and Rents. (a) Mortgagor hereby absolutely and unconditionally
assigns, sells, transfers and conveys all of the right, title and interest in
and to all existing leases, tenancies and occupancy agreements, however
denominated, affecting all or a portion of the Premises and all renewals,
replacements and guarantees thereof (the "Leases"), along with all of the rents,
income and profits due thereunder (the "Rents"), to Mortgagee. This assignment
is absolute in nature and not an assignment for additional security only. The
Mortgagee waives the right to enter the Mortgaged Property for the purpose of
collecting the Rents, and grants the Mortgagor the right to collect the Rents.
The right of the Mortgagor to collect the Rents may be revoked by the Mortgagee
without notice upon any default by the Mortgagor under the terms of the Note or
this Mortgage. Following such revocation the Mortgagee may retain and apply the
Rents toward payment of the Debt in such order, priority and proportions as the
Mortgagee, in its discretion, shall deem proper, or to the operation,
maintenance and repair of the Mortgaged Property, and
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irrespective of whether the Mortgagee shall have commenced a foreclosure of this
Mortgage or shall have applied or arranged for the appointment of a receiver.
The Mortgagor shall not, without the consent of the Mortgagee, modify or cancel
any Leases or accept prepayments of installments of the Rents for a period of
more than one (1) month in advance or further assign the whole or any part of
the Rents. The Mortgagee shall have all of the rights against tenants of the
Mortgaged Property as set forth in Section 291-f of the Real Property Law of New
York. The Mortgagor shall (a) fulfill or perform each and every provision of the
Leases on the part of the Mortgagor to be fulfilled or performed, (b) promptly
send copies of all notices of default which the Mortgagor shall send or receive
under the Leases to the Mortgagee, and (c) enforce, short of termination of the
Leases, the performance or observance of the provisions thereof by the tenants
thereunder. The Mortgagor shall from time to time, but not less frequently than
once every year, provide to the Mortgagee a complete and detailed leasing status
report with respect to the Improvements, which leasing status report shall be in
form and substance satisfactory in all respects to the Mortgagee. In addition to
the rights which the Mortgagee may have herein, in the event of any default
under this Mortgage, the Mortgagee, at its option, may require the Mortgagor to
pay monthly in advance to the Mortgagee, or any receiver appointed to collect
the Rents, the fair and reasonable rental value for the use and occupation of
such part of the Mortgaged Property as may be in possession of the Mortgagor.
Upon default in any such payment, the Mortgagor will vacate and surrender
possession of the Mortgaged Property to the Mortgagee, or to such receiver, and,
in default thereof, the Mortgagor may be evicted by summary proceedings or
otherwise. Nothing contained in this paragraph shall be construed as imposing on
the Mortgagee any of the obligations of the lessor under the Leases or of a
"mortgagee in possession".
(b) The Mortgagor acknowledges and agrees that, upon recordation of this
Mortgage, the Mortgagee's interest in the Rents shall be deemed to be fully
perfected, "▇▇▇▇▇▇" and enforced as to the Mortgagor and all third parties,
including, without limitation, any subsequently appointed trustee in any case
under the Bankruptcy Code, without the necessity of (i) commencing a foreclosure
action with respect to this Mortgage, (ii) furnishing notice to the Mortgagor or
tenants under the Leases, (iii) making formal demand for the Rents, (iv) taking
possession of the Premises as a mortgagee-in-possession, (v) obtaining the
appointment of a receiver of the rents and profits of the Premises, (vi)
sequestering or impounding the Rents, or (vii) taking any other affirmative
action.
(c) For purposes of Section 552(b) of the Bankruptcy Code, the Mortgagor
and the Mortgagee agree that this Mortgage shall constitute a "security
agreement," that the security interest created by such security agreement
extends to property of the Mortgagor acquired before the commencement of a case
in bankruptcy and to all amounts paid as Rents, and that such security interest
shall extend to all Rents acquired by the estate after the commencement of a
case in bankruptcy.
(d) The Mortgagor acknowledges and agrees that all Rents shall be deemed
to be "Cash Collateral" under Section 363 of the Bankruptcy Code in the event
that the Mortgagor files a voluntary petition in bankruptcy or is made subject
to any involuntary bankruptcy proceeding. After the filing of such petition, the
Mortgagor may not use Cash Collateral without the consent of the Mortgagee
and/or an order of any bankruptcy court pursuant to Section 363(b)(2) of the
Bankruptcy Code.
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8. Maintenance of the Mortgaged Property.
The Mortgagor shall cause the Mortgaged Property to be maintained in good
condition and repair and will not commit or suffer to be committed any waste of
the Mortgaged Property. The Improvements and the Equipment shall not be removed,
demolished or materially altered (except for normal replacement of the
Equipment), without the consent of the Mortgagee. The Mortgagor shall promptly
comply with all existing and future governmental laws, orders, ordinances, rules
and regulations affecting the Mortgaged Property, or any portion thereof or the
use thereof. The Mortgagor shall promptly repair, replace or rebuild any part of
the Mortgaged Property which may be damaged or destroyed by fire or other
property hazard or casualty (including any fire or other property hazard or
casualty for which insurance was not obtained or obtainable) or which may be
affected by any taking by any public or quasi-public authority through eminent
domain or otherwise, and shall complete and pay for, within a reasonable time,
any structure at any time in the process of construction or repair on the
Premises. If such fire or other property hazard or casualty shall be covered by
the Policies, the Mortgagor's obligation to repair, replace or rebuild such
portion of the Mortgaged Property shall be contingent upon the Mortgagee paying
the Mortgagor the proceeds of the Policies, or such portion thereof as shall be
sufficient to complete such repair, replacement or rebuilding, whichever is
less. The Mortgagor will not, without obtaining the prior consent of the
Mortgagee, initiate, join in or consent to any private restrictive covenant,
zoning ordinance, or other public or private restrictions, limiting or affecting
the uses which may be made of the Mortgaged Property or any part thereof.
9. Environmental Provisions.
(a) For the purposes of this paragraph the following terms shall have the
following meanings: (i) the term "Hazardous Material" shall mean any material or
substance that, whether by its nature or use, is now or hereafter defined or
regulated as a hazardous waste, hazardous substance, pollutant or contaminant
under any Environmental Requirement, or which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous or which is or contains petroleum, gasoline, diesel fuel, another
petroleum hydrocarbon product, asbestos, asbestos-containing materials or
polychlorinated biphenyls, (ii) the "Environmental Requirements" shall
collectively mean all present and future laws, statutes, common law, ordinances,
rules, regulations, orders, codes, licenses, permits, decrees, judgments,
directives or the equivalent of or by any Governmental Authority and relating to
or addressing the protection of the environment or human health, and (iii) the
term "Governmental Authority" shall mean the Federal government, or any state or
other political subdivision thereof, or any agency, court or body of the Federal
government, any state or other political subdivision thereof, exercising
executive, legislative, judicial, regulatory or administrative functions.
(b) The Mortgagor hereby represents and warrants to the Mortgagee that (i)
no Hazardous Material is currently located at, on, in, under or about the
Mortgaged Property in violation of Environmental Requirements, (ii) no
releasing, emitting, discharging, leaching, dumping, disposing or transporting
of any Hazardous Material from the
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Mortgaged Property onto any other property or from any other property onto or
into the Mortgaged Property has occurred or is occurring in violation of any
Environmental Requirement, (iii) no notice of violation, non-compliance,
liability or potential liability, lien, complaint, suit, order or other notice
with respect to the Mortgaged Property is presently outstanding under any
Environmental Requirement, nor does the Mortgagor have knowledge or reason to
believe that any such notice will be received or is being threatened, and (iv)
the Mortgaged Property and the operation thereof are in full compliance with all
Environmental Requirements.
(c) The Mortgagor shall comply, and shall cause all tenants or other
occupants of the Mortgaged Property to comply, in all respects with all
Environmental Requirements, and will not generate, store, handle, process,
dispose of or otherwise use, and will not permit any tenant or other occupant of
the Mortgaged Property to generate, store, handle, process, dispose of or
otherwise use, Hazardous Materials at, in, on, or about the Mortgaged Property
in a manner that could lead or potentially lead to the imposition on the
Mortgagor, the Mortgagee or the Mortgaged Property of any liability or lien of
any nature whatsoever under any Environmental Requirement. The Mortgagor shall
notify the Mortgagee promptly in the event of any spill or other release of any
Hazardous Material at, in, on, under or about the Mortgaged Property which is
required to be reported to a Governmental Authority under any Environmental
Requirement, will promptly forward to the Mortgagee copies of any notices
received by the Mortgagor relating to alleged violations of any Environmental
Requirement or any potential liability under any Environmental Requirement and
will promptly pay when due any fine or assessment against the Mortgagee, the
Mortgagor or the Mortgaged Property relating to any Environmental Requirement.
If at any time it is determined that the operation or use of the Mortgaged
Property is in violation of any applicable Environmental Requirement or that
there are Hazardous Materials located at, in, on, under or about the Mortgaged
Property violates any applicable Environmental Requirement or that there are
Hazardous Materials located at, in, on, under or about the Mortgaged Property
which, under any Environmental Requirement, require special handling in
collection, storage, treatment or disposal, or any form of cleanup or corrective
action, the Mortgagor shall, within thirty (30) days after receipt of notice
thereof from any Governmental Authority or from the Mortgagee, take, at the
Mortgagor's sole cost and expense, such actions as may be necessary to fully
comply in all respects with all Environmental Requirements, provided, however,
that if such compliance cannot reasonably be completed within such thirty (30)
day period, the Mortgagor shall commence such necessary action within such
thirty (30) day period and shall thereafter diligently and expeditiously proceed
to fully comply in all respects and in a timely fashion with all Environmental
Requirements.
(d) If the Mortgagor fails to timely take, or to diligently and
expeditiously proceed to complete in a timely fashion, any such action described
in clause (c) above, the Mortgagee may, in its sole and absolute discretion,
make advances or payments toward the performance or satisfaction of the same,
but shall in no event be under any obligation to do so. All sums so advanced or
paid by the Mortgagee (including, without limitation, counsel and consultant
fees and expenses, investigation and laboratory fees and expenses, and fines or
other penalty payments) and all sums advanced or paid in connection with any
judicial or administrative investigation or proceeding relating thereto, will
immediately, upon demand, become due and payable from the Mortgagor and shall
bear interest at the
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Default Rate from the date any such sums are so advanced or paid by the
Mortgagee until the date any such sums are repaid by the Mortgagor to the
Mortgagee. The Mortgagor will execute and deliver, promptly upon request, such
instruments as the Mortgagee may deem useful or necessary to permit the
Mortgagee to take any such action, and such additional notes and mortgages, as
the Mortgagee may require to secure all sums so advanced or paid by the
Mortgagee. If a lien is filed against the Mortgaged Property by any Governmental
Authority resulting from the need to expend or the actual expending of monies
arising from an action or omission, whether intentional or unintentional, of the
Mortgagor or for which the Mortgagor is responsible, resulting in the releasing,
spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of
any Hazardous Material into the waters or onto land located within or without
the State where the Mortgaged Property is located, then the Mortgagor will,
within thirty (30) days from the date that the Mortgagor is first given notice
that such lien has been placed against the Mortgaged Property (or within such
shorter period of time as may be specified by the Mortgagee if such Governmental
Authority has commenced steps to cause the Mortgaged Property to be sold
pursuant to such lien), either (a) pay the claim and remove the lien, or (b)
furnish a cash deposit, bond, or such other security with respect thereto as is
satisfactory in all respects to the Mortgagee and is sufficient to effect a
complete discharge of such lien on the Mortgaged Property.
(e) The Mortgagee may, at its option, at intervals of not less than one
year, or more frequently if the Mortgagee reasonably believes that a Hazardous
Material or other environmental condition violates or threatens to violate any
Environmental Requirement, cause an environmental audit of the Mortgaged
Property or portions thereof to be conducted to confirm the Mortgagor's
compliance with the provisions of this paragraph, and the Mortgagor shall
cooperate in all reasonable ways with the Mortgagee connection with any such
audit. If such audit discloses that a violation of or a liability under an
Environmental Requirement exists or if such audit was required or prescribed by
law, regulation or governmental or quasi-governmental authority, the Mortgagor
shall pay all costs and expenses incurred in connection with such audit;
otherwise, the costs and expenses of such audit shall, notwithstanding anything
to the contrary set forth in this paragraph, be paid by the Mortgagee.
(f) If this Mortgage is foreclosed, or if the Mortgaged Property is sold
pursuant to the provisions of this Mortgage, or if the Mortgagor tenders a deed
or assignment in lieu of foreclosure or sale, the Mortgagor shall deliver the
Mortgaged Property to the purchaser at foreclosure or sale or to the Mortgagee,
its nominee, or wholly-owned subsidiary, as the case may be, in a condition that
complies in all respects with all Environmental Requirements.
(g) The Mortgagor will defend, indemnify, and hold harmless the Mortgagee,
its co-lenders, participants, employees, agents, officers, and directors, from
and against any and all claims, demands, penalties, causes of action, fines,
liabilities, settlements, damages, costs, or expenses of whatever kind or
nature, known or unknown, foreseen or unforeseen, contingent or otherwise
(including, without limitation, counsel and consultant fees and expenses,
investigation and laboratory fees and expenses, court costs, and litigation
expenses) arising out of, or in any way related to, (i) any breach by the
Mortgagor of any of the provisions of this ▇▇▇▇▇▇▇▇▇ ▇, (▇▇) the presence,
disposal, spillage, discharge, emission,
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leakage, release, or threatened release of any Hazardous Material which is at,
in, on, under, about, from or affecting the Mortgaged Property, including,
without limitation, any damage or injury resulting from any such Hazardous
Material to or affecting the Mortgaged Property or the soil, water, air,
vegetation, buildings, personal property, persons or animals located on the
Mortgaged Property or on any other property or otherwise, (iii) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to any such Hazardous Material, (iv) any lawsuit brought or
threatened, settlement reached, or order or directive of or by any Governmental
Authority relating to such Hazardous Material, or (v) any violation of any
Environmental Requirement or any policy or requirement of the Mortgagee
hereunder. The aforesaid indemnification shall, notwithstanding any exculpatory
or other provision of any other document or instrument now or hereafter executed
and delivered in connection with the loan evidenced by the Note and secured by
this Mortgage, constitute the personal recourse undertakings, obligations and
liabilities of the Mortgagor.
(h) The obligations and liabilities of the Mortgagor under this Paragraph
9 shall survive and continue in full force and effect and shall not be
terminated, discharged or released, in whole or in part, irrespective of whether
the Debt has been paid in full and irrespective of any foreclosure of this
Mortgage, sale of the Mortgaged Property pursuant to the provisions of this
Mortgage or acceptance by the Mortgagee, its nominee or affiliate of a deed or
assignment in lieu of foreclosure or sale and irrespective of any other fact or
circumstance of any nature whatsoever.
10. Estoppel Certificates. The Mortgagor, within ten (10) days after
request by the Mortgagee and at its expense, will furnish the Mortgagee with a
statement, duly acknowledged and certified, setting forth the amount of the Debt
and the offsets or defenses thereto, if any.
11. Transfer or Encumbrance of the Mortgaged Property.
No part of the Mortgaged Property nor any interest of any nature
whatsoever therein nor any interest of any nature whatsoever in the Mortgagor
(whether partnership, stock, equity, beneficial, profit, loss or otherwise)
shall in any manner, directly or indirectly, be further encumbered, sold,
transferred or conveyed, or permitted to be further encumbered, sold,
transferred, assigned or conveyed without the prior consent of the Mortgagee,
which consent in any and all circumstances will not be unreasonably withheld.
The provisions of the foregoing sentence of this paragraph shall apply to each
and every such further encumbrance, sale, transfer, assignment or conveyance,
regardless of whether or not the Mortgagee has consented to, or waived by its
action or inaction its rights hereunder with respect to, any such previous
further encumbrance, sale, transfer, assignment or conveyance, and irrespective
of whether such further encumbrance, sale, transfer, assignment or conveyance is
voluntary, by reason of operation of law or is otherwise made.
12. Notice. Any notice, request, demand, statement, authorization,
approval or consent made hereunder shall be in writing and shall be hand
delivered or sent by Federal Express, or other reputable courier service, or by
postage pre-paid registered or certified mail, return receipt requested, and
shall be deemed given (i) when received at the following
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addresses if hand delivered or sent by Federal Express, or other reputable
courier service, and (ii) three (3) business days after being postmarked and
addressed as follows if sent by registered or certified mail, return receipt
requested:
If to the Mortgagor:
Boundless Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Mortgagee:
JPMorgan Chase Bank, as Collateral Agent
New York Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
JPMorgan Chase Bank
Legal Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Counsel
Each party may designate a change of address by notice to the other party, given
at least fifteen (15) days before such change of address is to become effective.
13. Sale of Mortgaged Property. If this Mortgage is foreclosed, the
Mortgaged Property, or any interest therein, may, at the discretion of the
Mortgagee, be sold in one or more parcels or in several interests or portions
and in any order or manner.
13A. Non-Judicial Foreclosure. To the extent permitted by law, the
Mortgagee may choose to utilize the procedures set forth in Article 14 of the
Real Property Actions and Proceedings Law of New York and commence a
non-judicial foreclosure of this Mortgage by power of sale. To the extent
permitted by law, the Mortgagor waives any right granted pursuant to Section
1421 or any other provision of the Real Property Actions and Proceedings Law of
New York to challenge the Mortgagee's election to enforce this Mortgage by means
of such non-judicial foreclosure by power of sale. If the Premises consists of
two or more distinct parcels, all of such parcels shall be sold as one parcel,
unless the Mortgagee shall elect otherwise.
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14. Changes in Laws Regarding Taxation. In the event of the passage after
the date of this Mortgage of any law of the State of New York deducting from the
value of real property for the purpose of taxation any lien or encumbrance
thereon or changing in any way the laws for the taxation of mortgages or debts
secured by mortgages for state or local purposes or the manner of the collection
of any such taxes, and imposing a tax, either directly or indirectly, on this
Mortgage, the Note or the Debt, the Mortgagor shall, if permitted by law, pay
any tax imposed as a result of any such law within the statutory period or
within fifteen (15) days after demand by the Mortgagee, whichever is less,
provided, however, that if, in the opinion of the attorneys for the Mortgagee,
the Mortgagor is not permitted by law to pay such taxes, the Mortgagee shall
have the right, at its option, to declare the Debt due and payable on a date
specified in a prior notice to the Mortgagor of not less than thirty (30) days.
15. No Credits on Account of the Debt. The Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes assessed against the Mortgaged Property or any part thereof
and no deduction shall otherwise be made or claimed from the taxable value of
the Mortgaged Property, or any part thereof, by reason of this Mortgage or the
Debt. If at any time this Mortgage shall secure less than all of the principal
amount of the Debt, it is expressly agreed that any repayment of the principal
amount of the Debt shall not reduce the amount of the lien of this Mortgage
until the lien amount shall equal the principal amount of the Debt outstanding.
16. Offsets, Counterclaims and Defenses. Any assignee of this Mortgage and
the Note shall take the same free and clear of all offsets, counterclaims or
defenses of any nature whatsoever which the Mortgagor may have against any
assignor of this Mortgage and the Note, and no such offset, counterclaim or
defense shall be interposed or asserted by the Mortgagor in any action or
proceeding brought by any such assignee upon this Mortgage or the Note and any
such right to interpose or assert any such offset, counterclaim or defense in
any such action or proceeding is hereby expressly waived by the Mortgagor.
17. Other Security for the Debt. The Mortgagor shall observe and perform
all of the terms, covenants and provisions contained in the Note and in all
other mortgages and other instruments or documents evidencing, securing or
guaranteeing payment of the Debt, in whole or in part, or otherwise executed and
delivered in connection with the Note, this Mortgage or the loan evidenced and
secured thereby.
18. Documentary Stamps. If at any time the United States of America, any
state thereof, or any governmental subdivision of any such state, shall require
revenue or other stamps to be affixed to the Note or this Mortgage, the
Mortgagor will pay for the same, with interest and penalties thereon, if any.
19. Right of Entry. Upon prior notice, the Mortgagee and its agents shall
have the right to enter and inspect the Mortgaged Property at all reasonable
times.
20. Books and Records. The Mortgagor will keep and maintain or will cause
to be kept and maintained on a fiscal year basis in accordance with generally
accepted
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accounting practices consistently applied proper and accurate books, records and
accounts reflecting all of the financial affairs of the Mortgagor and all items
of income and expense in connection with the operation of the Mortgaged Property
or in connection with any services, equipment or furnishings provided in
connection with the operation of the Mortgaged Property, whether such income or
expense be realized by the Mortgagor or by any other person whatsoever excepting
lessees unrelated to and unaffiliated with the Mortgagor who have leased from
the Mortgagor portions of the Mortgaged Property for the purpose of occupying
the same. The Mortgagee shall have the right from time to time at all times
during normal business hours to examine such books, records and accounts at the
office of the Mortgagor or other person maintaining such books, records and
accounts and to make copies or extracts thereof as the Mortgagee shall desire.
The Mortgagor shall comply with the terms of the Loan Agreement of even date
herewith (as described in Paragraph 52 hereof) between Mortgagor and Mortgagee
regarding the disclosure of financial information.
21. Performance of Other Agreements. The Mortgagor shall observe and
perform each and every term to be observed or performed by the Mortgagor
pursuant to the terms of any agreement or recorded instrument affecting or
pertaining to the Mortgaged Property.
22. Events of Default. The Debt shall become due at the option of the
Mortgagee upon the occurrence of any one or more of the following events (herein
collectively referred to as Events of Default):
(a) if any portion of the Debt is not paid within five (5) days after
notice by the Mortgagee to the Mortgagor that the same is past due;
(b) if the Mortgagor shall fail to pay within thirty (30) days of notice
and demand by the Mortgagee, any installment of any assessment against the
Mortgaged Property for local improvements heretofore or hereafter laid, which
assessment is or may become payable in annual or periodic installments and is or
may become a lien on the Mortgaged Property;
(c) if any Federal tax lien is filed against the Mortgagor or the
Mortgaged Property and the same is not discharged of record within forty five
(45) days after the same is filed;
(d) if without the consent of the Mortgagee (which consent will not be
unreasonably withheld), any part of the Mortgaged Property or any interest of
any nature whatsoever therein or any interest of any nature whatsoever in the
Mortgagor (whether partnership, stock, equity, beneficial, profit, loss or
otherwise) is in any manner, by operation of law or otherwise, whether directly
or indirectly, further encumbered, sold, transferred, assigned or conveyed, and
irrespective of whether any such further encumbrance, sale, transfer, assignment
or conveyance is voluntary, by reason or operation of law or is otherwise made;
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(e) if without the consent of the Mortgagee any Improvement or the
Equipment (except for the normal replacement of the Equipment) is removed,
demolished or materially altered, or if the Mortgaged Property is not kept in
good condition and repair;
(f) if the Mortgagor shall fail to comply with any requirement or order or
notice of violation of law or ordinance issued by any governmental department
claiming jurisdiction over the Mortgaged Property within three (3) months from
the issuance thereof, or the time period set forth therein, whichever is less;
(g) if the Mortgagor shall be in default with respect to its obligations
under Paragraph 9 of the Mortgage beyond any applicable grace period and/or
after the giving of any applicable notice as stated in Paragraph 9;
(h) if the Policies are not kept in full force and effect, or if the
Policies are not delivered to the Mortgagee upon request;
(i) if on application of the Mortgagee two or more fire insurance
companies lawfully doing business in the State of New York refuse to issue
Policies;
(j) if the Mortgagor shall fail to pay the Mortgagee on demand for all
Premiums and/or Taxes paid by the Mortgagee pursuant to this Mortgage, together
with any late payment charge and interest thereon calculated at the Default
Rate;
(k) if without the consent of the Mortgagee any Rents is paid for a period
of more than one (1) month in advance or if any of the Rents are further
assigned;
(l) if any representation or warranty of the Mortgagor guaranteeing
payment of the Debt or any portion thereof, or guaranteeing performance by the
Mortgagor of any of the terms of this Mortgage made herein, or in any
certificate, report, financial statement or other instrument furnished in
connection with the making of the Note or this Mortgage, shall prove false or
misleading in any material respect;
(m) if the Mortgagor shall make an assignment for the benefit of
creditors;
(n) if a court of competent jurisdiction enters a decree or order for
relief with respect to the Mortgagor under Title 11 of the United States Code as
now constituted or hereafter amended or under any other applicable Federal or
state bankruptcy law or other similar law, or if such court enters a decree or
order appointing a receiver, liquidator, assignee, trustee, sequestrator (or
similar official) of the Mortgagor, or of any substantial part of its
properties, or if such court decrees or orders the winding up or liquidation of
the affairs of the Mortgagor;
(o) if the Mortgagor files a petition or answer or consent seeking relief
under the Bankruptcy Code as now constituted or hereafter amended, or under any
other applicable Federal or state bankruptcy law or other similar law, or if the
Mortgagor consents to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Mortgagor, or of any substantial part of its
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properties, or if the Mortgagor fails generally to pay its debts as such debts
become due, or if the Mortgagor takes any action in furtherance of any action
described in this subparagraph;
(p) if the Mortgagor or other person shall be in default under the Note or
under any other mortgage, instrument or document evidencing, securing or
guaranteeing payment of the Debt, in whole or in part, or otherwise executed and
delivered in connection with the Note, this Mortgage or the loan evidenced and
secured thereby;
(q) if the Mortgagor or other person shall be in default under any
mortgage or deed of trust covering any part of the Mortgaged Property whether
superior or inferior in lien to this Mortgage, and including, without
limitation, any such mortgage or deed of trust now or hereafter held by the
Mortgagee;
(r) if the Mortgaged Property shall become subject (i) to any tax lien,
other than a lien for local real estate taxes and assessments not due and
payable, or (ii) to any lis pendens, notice of pendency, stop order, notice of
intention to file mechanic's or materialman's lien, mechanic's or materialman's
lien or other lien of any nature whatsoever and the same shall not either be
discharged of record or in the alternative insured over to the satisfaction of
the Mortgagee by the title company insuring the lien of this Mortgage within a
period of thirty (30) days after the same is filed or recorded, and irrespective
of whether the same is superior or subordinate in lien or other priority to the
lien of this Mortgage and irrespective of whether the same constitutes a
perfected or inchoate lien or encumbered on the Mortgaged Property or is only a
matter of record or notice;
(s) if the Mortgagor shall continue to be in default under any of the
other terms, covenants or conditions of this Mortgage for thirty (30) days after
notice from the Mortgagee in the case of any default which can be cured by the
payment of a sum of money or for thirty (30) days after notice from the
Mortgagee in the case of any other default, provided that if such default cannot
reasonably be cured within such thirty (30) day period and the Mortgagor shall
have commenced to cure such default within such thirty (30) day period and
thereafter diligently and expeditiously proceeds to cure the same, such thirty
(30) day period shall be extended for so long as it shall require the Mortgagor
in the exercise of due diligence to cure such default, it being agreed that no
such extension shall be for a period in excess of sixty (60) days; or
(t) an Event of Default shall have occurred and is continuing under the
First Mortgage (as defined in Paragraph 51).
23. Right to Cure Defaults. If default in the performance of any of the
covenants of the Mortgagor herein occurs, the Mortgagee may, at its discretion,
remedy the same and for such purpose shall have the right to enter upon the
Mortgaged Property or any portion thereof without thereby becoming liable to the
Mortgagor or any person in possession thereof holding under the Mortgagor. If
the Mortgagee shall remedy such a default or appear in, defend, or bring any
action or proceeding to protect its interest in the Mortgaged Property or to
foreclose this Mortgage or collect the Debt, the costs and expenses thereof
(including reasonable attorneys' fees to the extent permitted by law), with
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interest as provided in this paragraph, shall be paid by the Mortgagor to the
Mortgagee upon demand. All such costs and expenses incurred by the Mortgagee in
remedying such default or in appearing in, defending, or bringing any such
action or proceeding shall be paid by the Mortgagor to the Mortgagee upon
demand, with interest (calculated for the actual number of days elapsed on the
basis of a 360-day year) at a rate per annum equal to 2% plus the rate of
interest provided in the Note (herein referred to as the Default Rate),
provided, however, that the Default Rate shall in no event exceed the maximum
interest rate which the Mortgagor may by law pay, for the period after notice
from the Mortgagee that such costs or expenses were incurred to the date of
payment to the Mortgagee. To the extent any of the aforementioned costs or
expenses paid by the Mortgagee after default by the Mortgagor shall constitute
payment of (i) taxes, charges or assessments which may be imposed by law upon
the Mortgaged Property, (ii) premiums on insurance policies covering the
Mortgaged Property, (iii) expenses incurred in upholding the lien of this
Mortgage, including, but not limited to, the costs and expenses of any
litigation to collect the indebtedness secured by this Mortgage or to prosecute,
defend, protect or preserve the rights and the lien created by this Mortgage, or
(iv) any amount, cost or charge to which the Mortgagee becomes subrogated, upon
payment, whether under recognized principles of law or equity, or under express
statutory authority; then, and in each such event, such costs, expenses and
amounts, together with interest thereon at the Default Rate, shall be added to
the indebtedness secured by this Mortgage and shall be secured by this Mortgage.
Notwithstanding anything to the contrary contained in this Mortgage, the maximum
amount of the principal indebtedness secured by this Mortgage at execution or
which under any contingency may become secured by this Mortgage is TWO MILLION
FIVE HUNDRED SEVENTY THOUSAND AND 00/100 ($2,570,000.00) DOLLARS, plus all
amounts expended by the Mortgagee after default by the Mortgagor, as hereinabove
set forth in this paragraph.
24. Appointment of Receiver. The Mortgagee, in any action to foreclose
this Mortgage or upon the actual or threatened waste to any part of the
Mortgaged Property or upon the occurrence of any default hereunder, shall be at
liberty, without notice, to apply for the appointment of a receiver of the
Rents, and shall be entitled to the appointment of such receiver as a matter of
right, without regard to the value of the Mortgaged Property as security for the
Debt, or the solvency or insolvency of any person then liable for the payment of
the Debt.
25. Non-Waiver. The failure of the Mortgagee to insist upon strict
performance of any term of this Mortgage shall not be deemed to be a waiver of
any term of this Mortgage. The Mortgagor shall not be relieved of the
Mortgagor's obligation to pay the Debt at the time and in the manner provided
for its payment in the Note and this Mortgage by reason of (i) failure of the
Mortgagee to comply with any request of the Mortgagor to take any action to
foreclose this Mortgage or otherwise enforce any of the provisions hereof or of
the Note or any other mortgage, instrument or document evidencing, securing or
guaranteeing payment of the
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Debt or any portion thereof, (ii) the release, regardless of consideration, of
the whole or any part of the Mortgaged Property or any other security for the
Debt, or (iii) any agreement or stipulation between the Mortgagee and any
subsequent owner or owners of the Mortgaged Property or other person extending
the time of payment or otherwise modifying or supplementing the terms of the
Note, this Mortgage or any other mortgage, instrument or document evidencing,
securing or guaranteeing payment of the Debt or any portion thereof, without
first having obtained the consent of the Mortgagor, and in the latter event, the
Mortgagor shall continue to be obligated to pay the Debt at the time and in the
manner provided in the Note and this Mortgage, as so extended, modified and
supplemented, unless expressly released and discharged from such obligation by
the Mortgagee in writing. Regardless of consideration, and without the necessity
for any notice to or consent by the holder of any subordinate lien, encumbrance,
right, title or interest in or to the Mortgaged Property, the Mortgagee may
release any person at any time liable for the payment of the Debt or any portion
thereof or any part of the security held for the Debt and may extend the time of
payment or otherwise modify the terms of the Note or this Mortgage, including,
without limitation, a modification of the interest rate payable on the principal
balance of the Note, without in any manner impairing or affecting this Mortgage
or the lien thereof or the priority of this Mortgage, as so extended and
modified, as security for the Debt over any such subordinate lien, encumbrance,
right, title or interest. The Mortgagee may resort for the payment of the Debt
to any other security held by the Mortgagee in such order and manner as the
Mortgagee, in its discretion, may elect. The Mortgagee may take action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of the Mortgagee thereafter to foreclose this
Mortgage. The Mortgagee shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled to every additional right and
remedy now or hereafter afforded by law. The rights of the 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 the Mortgagee shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision.
26. Liability. If the Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several.
27. Construction. The terms of this Mortgage shall be construed in
accordance with the laws of the State of New York.
28. Security Agreement; Financing Statement. This Mortgage constitutes
both a real property mortgage and a "security agreement," within the meaning of
the Uniform Commercial Code, and the Mortgaged Property includes both real
property and Equipment of the Mortgagor in the Mortgaged Property. The Mortgagor
by executing and delivering this Mortgage has granted to the Mortgagee, as
security for the Debt, a security interest in the Equipment. If the Mortgagor
shall default under the Note or this Mortgage, the 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
Equipment or any part thereof, and to take such other measures as the Mortgagee
may deem necessary for the care, protection and preservation of the Equipment.
Upon request or demand of the Mortgagee, the Mortgagor shall at its expense
assemble the Equipment and make it available to the Mortgagee at a convenient
place acceptable to the Mortgagee. The Mortgagor shall pay to the Mortgagee on
demand any and all expenses, including legal expenses and attorneys' fees,
incurred or paid by the Mortgagee in protecting its interest in the Equipment
and in enforcing its rights hereunder with respect to the Equipment. Any notice
of sale, disposition or other intended action by the Mortgagee with respect to
the
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Equipment sent to the Mortgagor in accordance with the provisions of this
Mortgage at least seven (7) days prior to the date of any such sale, disposition
or other action, shall constitute reasonable notice to the Mortgagor, and the
method of sale or disposition or other intended action set forth or specified in
such notice shall conclusively be deemed to be commercially reasonable within
the meaning of the Uniform Commercial Code unless objected to in writing by the
Mortgagor within five (5) days after receipt by the Mortgagor of such notice.
The proceeds of any sale or disposition of the Equipment, or any part thereof,
may be applied by the Mortgagee to the payment of the Debt in such order,
priority and proportions as the Mortgagee in its discretion shall deem proper.
If any change shall occur in the Mortgagor's name, the Mortgagor shall promptly
cause to be filed at its own expense, new financing statements as required under
the Uniform Commercial Code to replace those on file in favor of the Mortgagee.
The Mortgage shall also serve as a financing statement as provided for in
Section 9-402(6) of the Uniform Commercial Code.
29. Further Acts, Etc. the Mortgagor will, at the cost of the Mortgagor,
and without expense to the Mortgagee, do, execute, acknowledge and deliver all
and every such further acts, deeds, conveyances, mortgages, assignments, notices
of assignments, transfers and assurances as the Mortgagee shall, from time to
time, require for the better assuring, conveying, assigning, transferring and
confirming unto the Mortgagee the property and rights hereby mortgaged or
intended now or hereafter so to be, or which the Mortgagor may be or may
hereafter become bound to convey or assign to the 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 and, on demand, will execute
and deliver and hereby authorizes the Mortgagee to execute in the name of the
Mortgagor to the extent the Mortgagee may lawfully do so, one or more financing
statements, chattel mortgages or comparable security instruments, to evidence
more effectively the lien hereof upon the Mortgaged Property.
30. 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
defined or limiting, in any way, the scope or intent of the provisions hereof.
31. Filing of Mortgage, etc. The 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 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, preserve and perfect the lien hereof upon, and the interest of the
Mortgagee in, the Mortgaged Property. The Mortgagor will pay all filing,
registration and 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. The Mortgagor shall hold
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harmless and indemnify the 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.
32. Usury Laws. This Mortgage and the Note are subject to the express
condition that at no time shall the Mortgagor be obligated or required to pay
interest on the principal balance due under the Note at a rate which could
subject the holder of the Note to either civil or criminal liability as a result
of being in excess of the maximum interest rate which the Mortgagor is permitted
by law to contract or agree to pay. If by the terms of this Mortgage or the
Note, the Mortgagor is at any time required or obligated to pay interest on the
principal balance due under the Note at a rate in excess of such maximum rate,
the rate of interest under the Note shall be deemed to be immediately reduced to
such maximum rate and the interest payable shall be computed at such maximum
rate and all prior interest payments in excess of such maximum rate shall be
applied and shall be deemed to have been payments in reduction of the principal
balance of the Note.
33. Discretion of Mortgagee. Except as may otherwise be expressly provided
to the contrary, wherever pursuant to the Note, this Mortgage or any other
document or instrument now or hereafter executed and delivered in connection
therewith or otherwise with respect to the loan secured hereby, the Mortgagee
exercises any right given to it to consent or not consent, or to approve or
disapprove, or any arrangement or term is to be satisfactory to the Mortgagee,
the decision of the Mortgagee to consent or not consent, or to approve or
disapprove, or to decide that arrangements or terms are satisfactory or not
satisfactory, shall be in the reasonable discretion of the Mortgagee.
34. Reasonableness. If at any time the Mortgagor believes that the
Mortgagee has not acted reasonably in granting or withholding any approval or
consent under the Note, this Mortgage or any other document or instrument now or
hereafter executed and delivered in connection therewith or otherwise with
respect to the loan secured hereby, as to which approval or consent either (i)
the Mortgagee has expressly agreed to act reasonably, or (ii) absent such
agreement, applicable law would nonetheless require the Mortgagee to act
reasonably, then the Mortgagor's sole remedy shall be to seek injunctive relief
or specific performance, and no action for monetary damages or punitive damages
shall in any event or under any circumstance be maintained by the Mortgagor
against the Mortgagee.
35. Recovery of Sums Required To Be Paid. The Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of the Mortgagee thereafter to bring an action of foreclosure, or any other
action, for a default or defaults by the Mortgagor existing at the time such
earlier action was commenced.
36. Actions and Proceedings. The Mortgagee shall have the right to appear
in and defend any action or proceeding brought with respect to the Mortgaged
Property and to bring any action or proceeding, in the name and on behalf of the
Mortgagor, which the
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Mortgagee, in its discretion, determines should be brought to protect its
interest in the Mortgaged Property.
37. Inapplicable Provisions. If any term, covenant or condition of this
Mortgage shall be held to be invalid, illegal or unenforceable in any respect,
this Mortgage shall be construed without such provision.
38. Duplicate Originals. This Mortgage may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument.
39. Certain Definitions. Unless the context clearly indicates a contrary
intent, or unless otherwise specifically provided in this Mortgage, words used
in this Mortgage shall be used interchangeably in singular or plural form, and
the word "Mortgagor" shall mean each of the Mortgagor and any subsequent owner
or owners of the Mortgaged Property or any part thereof or interest therein; the
word "Mortgagee" shall mean the Mortgagee or any subsequent holder of the Note;
the word "Note" shall mean the Note or any other evidence of indebtedness
secured by this Mortgage and any and all modifications, amendments, extensions,
renewals, restatements, consolidations and/or replacements thereof; the word
"person" shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, or other entity;
the words "Mortgaged Property" shall include any portion of the Mortgaged
Property or interest therein; and the word "Debt" shall mean all sums secured by
this Mortgage; and the word "default" shall mean the occurrence of any default
by the Mortgagor or other person in the observance or performance of any of the
terms, covenants or provisions of the Note or this Mortgage on the part of the
Mortgagor or such other person to be observed or performed. 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.
40. Waiver of Notice. The Mortgagor shall not be entitled to any notices
of any nature whatsoever from the Mortgagee except with respect to matters for
which this Mortgage specifically and expressly provides for the giving of notice
by the Mortgagee to the Mortgagor, and the Mortgagor hereby expressly waives the
right to receive any notice from the Mortgagee with respect to any matter for
which this Mortgage does not specifically and expressly provide for the giving
of notice by the Mortgagee to the Mortgagor.
41. No Oral Change. This Mortgage may only be modified, amended or changed
by an agreement in writing signed by the Mortgagor and the Mortgagee, and may
only be released, discharged or satisfied of record by an agreement in writing
signed by the Mortgagee. No waiver of any term, covenant or provision of this
Mortgage shall be effective unless given in writing by the Mortgagee and if so
given by the Mortgagee shall only be effective in the specific instance in which
given. The Mortgagor acknowledges that the Note, this Mortgage and the other
documents and instruments executed and delivered in connection therewith or
otherwise in connection with the loan secured hereby set forth the entire
agreement and understanding of the Mortgagor and the Mortgagee with respect to
the loan secured hereby and that no oral or other agreements, understanding,
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representation or warranties exist with respect to the loan secured hereby other
than those set forth in the Note, this Mortgage and such other executed and
delivered documents and instruments.
42. Absolute and Unconditional Obligation. The Mortgagor acknowledges that
the Mortgagor's obligation to pay the Debt in accordance with the provision of
the Note and this Mortgage is and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense to the Note or this Mortgage or the
obligation of the Mortgagor thereunder to pay the Debt or the obligations of any
other person relating to the Note or this Mortgage or the obligations of the
Mortgagor under the Note or this Mortgage or otherwise with respect to the loan
secured hereby, and the Mortgagor absolutely, unconditionally and irrevocably
waives any and all right to assert any defense, setoff, counterclaim or
crossclaim of any nature whatsoever with respect to the obligation of the
Mortgagor to pay the Debt in accordance with the provisions of the Note and this
Mortgage or the obligations of any other person relating to the Note or this
Mortgage or obligations of the Mortgagor under the Note or this Mortgage or
otherwise with respect to the loan secured hereby in any action or proceeding
brought by the Mortgagee to collect the Debt, or any portion thereof, or to
enforce, foreclose and realize upon the lien and security interest created by
this Mortgage or any other document or instrument securing repayment of the
Debt, in whole or in part.
43. Trust Fund. Pursuant to Section 13 of the Lien Law of New York, the
Mortgagor shall receive the advances secured hereby and shall hold the right to
receive such advances as a trust fund to be applied first for the purpose of
paying the cost of any improvement and shall apply such advances first to the
payment of the cost of any such improvement on the Mortgaged Property before
using any part of the total of the same for any other purpose.
44. Non-Residential Property. This Mortgage does not cover real property
principally improved by one or more structures containing in the aggregate six
(6) or less residential dwelling units having their own separate cooking
facilities.
45. Waiver of Trial by Jury. The Mortgagor hereby irrevocably and
unconditionally waives, and the Mortgagee by its acceptance of the Note and this
Mortgage irrevocably and unconditionally waives, any and all rights to trial by
jury in any action, suit or counterclaim arising in connection with, out of or
otherwise relating to the Note, this Mortgage or any other document or
instrument now or hereafter executed and delivered in connection therewith or
the loan secured by this Mortgage.
46. Waiver of Statutory Rights. The Mortgagor shall not and will not apply
for or avail itself of any appraisement, valuation, stay, extension or exemption
laws, or any so-called "Moratorium Laws," now existing or hereafter enacted, in
order to prevent or hinder the enforcement or foreclosure of this Mortgage, but
hereby waives the benefit of such laws to the full extent that the Mortgagor may
do so under applicable law. The Mortgagor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Mortgaged Property marshaled upon any
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foreclosure of the lien of this Mortgage and agrees that any court having
jurisdiction to foreclose such lien may order the Mortgaged Property sold as an
entirety. The Mortgagor hereby waives for itself and all who may claim through
or under it, and to the full extent the Mortgagor may do so under applicable
law, any and all rights of redemption from sale under any order of decree of
foreclosure of this Mortgage or granted under any statute now existing or
hereafter enacted.
47. Brokerage. The Mortgagor covenants and agrees that no brokerage
commission or other fee, commission or compensation is to be paid by the
Mortgagee on account of the loan or other financing obligations evidenced by the
Note and/or secured by this Mortgage and the Mortgagor agrees to indemnify the
Mortgagee against any claims for any of the same.
48. Indemnity. Anything in this Mortgage or the other Loan Documents to
the contrary notwithstanding, the Mortgagor shall indemnify and hold the
Mortgagee harmless and defend the Mortgagee at the Mortgagor's sole cost and
expense against any loss or liability, cost or expense (including, without
limitation, title insurance premiums and charges and reasonable attorneys' fees
and disbursements of the Mortgagee's counsel, whether in-house staff, retained
firms or otherwise), and all claims, actions, procedures and suits arising out
of or in connection with (i) any ongoing matters arising out of the transaction
contemplated hereby, the Debt, this Mortgage, the Note or any other document or
instrument now or hereafter executed and/or delivered in connection with the
Debt (the "Loan Documents") and/or the Mortgaged Property, including, but not
limited to, all costs of reappraisal of the Mortgaged Property or any part
thereof, whether required by law, regulation, the Mortgagee or any governmental
or quasi-governmental authority, (ii) any amendment to, or restructuring of, the
Debt and this Mortgage, the Note or any of the other Loan Documents, (iii) any
and all lawful action that may be taken by the Mortgagee in connection with the
enforcement of the provisions of this Mortgage or the Note or any of the other
Loan Documents, whether or not suit is filed in connection with the same, or in
connection with the Mortgagor and/or any partner, joint venturer or shareholder
thereof becoming a party to a voluntary or involuntary federal or state
bankruptcy, insolvency or similar proceeding, and (iv) the past, current and/or
future sale or offering for sale of limited partnership interests in the
Mortgagor, including, without limitation, liabilities under any applicable
securities or blue sky laws. All sums expended by the Mortgagee shall be payable
on demand and, until reimbursed by the Mortgagor pursuant hereto, shall be
deemed additional principal of the Debt and secured hereby and shall bear
interest at the Default Rate. The obligations of the Mortgagor under this
paragraph shall, notwithstanding any exculpatory or other provisions of any
nature whatsoever set forth in the Loan Documents, constitute the personal
recourse undertakings, obligations and liabilities of the Mortgagor.
49. Enforceability. This Mortgage was negotiated in the State of New York,
and made by the Mortgagor and accepted by the Mortgagee in the State of New
York, and the proceeds of the loan secured hereby were disbursed from the State
of New York, which State the parties agree has a substantial relationship to the
parties and to the underlying transaction embodied hereby, and in all respects,
including, without limiting the generality of the foregoing, matters of
construction, validity and performance, this Mortgage and the obligations
arising hereunder shall be governed by, and construed in accordance with, the
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laws of the State of New York applicable to contracts made and performed in such
State and any applicable laws of the United State of America. Whenever possible,
each provision of this Mortgage shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Mortgage
shall be unenforceable or prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such unenforceability,
prohibition or invalidity, without invalidating the remaining provisions of this
Mortgage.
50. Relationship. The relationship of the Mortgagee to the Mortgagor
hereunder is strictly and solely that of lender and borrower and mortgagor and
mortgagee and nothing contained in the Note, this Mortgage or any other document
or instrument now or hereafter executed and delivered in connection therewith or
otherwise in connection with the loan secured hereby is intended to create, or
shall in any event or under any circumstance be construed as creating, a
partnership, joint venture, tenancy-in-common, joint tenancy or other
relationship of any nature whatsoever between the Mortgagee and the Mortgagor
other than as lender and borrower.
51. First Mortgage. This Mortgage is subject and subordinate to a certain
first mortgage, dated December 9, 1994, made by Applied Digital Data Systems,
Inc., as mortgagor, to AT & T Global Information Solutions Company, as
mortgagee, in the original principal amount of $8,000,000 and recorded on
December 22, 1994 in the Suffolk County Clerk's Office (the "Clerk's Office") in
Liber 18899, at Page 434, which mortgage was thereafter assigned by ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, f/k/a AT & T Global Information Solutions Company to Independence
Community Bank, by assignment dated June 22, 1999 and recorded on August 18,
1999 in Liber 19580, at Page 660, which mortgage, as assigned, was thereafter
modified by agreement between Independence Community Bank and Boundless
Technologies, Inc., dated April 21, 2000 and recorded on April 28, 2000 in Liber
19580, at Page 661 (the "First Mortgage"). In addition, the Mortgagor hereby
covenants and agrees with the Mortgagee as follows:
(a) the First Mortgage is and in all respects shall at all times be
current and in full force and effect without default on the part of the
Mortgagor thereunder;
(b) the Mortgagor shall not enter into any agreement with the holder of
the First Mortgage to amend, modify, renew, increase or in any manner change the
terms thereof or the indebtedness secured thereby, either orally or in writing
and whether or not permitted to do so by the terms of the First Mortgage,
without the prior written consent of the Mortgagee;
(c) any default under the First Mortgage shall ipso facto constitute a
default under this Mortgage;
(d) the Mortgagor shall (i) promptly notify the Mortgagee in writing of
the occurrence of any default or event of default known to the Mortgagor under
the First Mortgage or any instrument or agreement related thereto, (ii) promptly
notify the Mortgagee of receipt by the Mortgagor of any notice noting or
claiming the occurrence of any default or event of default under the First
Mortgage or any instrument or agreement
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relating thereto, and (iii) promptly cause a copy of each such notice received
by the Mortgagor to be delivered to the Mortgagee;
(e) the Mortgagor shall furnish to the Mortgagee, every six (6) months
without demand and ten (10) days after the mailing by the Mortgagee of a written
request therefor, proof reasonably satisfactory to the Mortgagee of payment of
all items which are required to be paid by the Mortgagor under the First
Mortgage or any instrument or agreement related thereto; and
(f) the Mortgagee shall have the right, at its option, to perform the
obligations of the Mortgagor under the First Mortgage upon the expiration of
one-half of any applicable grace period for the curing of any defaults
thereunder without the Mortgagee waiving any other of its rights under this
Mortgage. Should the Mortgagee exercise its right hereunder to cure a default,
the Mortgagor will reimburse the Mortgagee for any expenses the Mortgagee shall
have incurred pursuant to the provisions of this Paragraph 51, and any such
expenditures shall become a lien upon the Mortgaged Property and shall be added
to the principal of and be secured by this Mortgage. The Mortgagor will take all
reasonable steps to insure the Mortgagee will have a reasonable opportunity to
cure all defaults under the First Mortgage.
IN WITNESS WHEREOF, the Mortgagor has duly executed this Mortgage the day
and year first above written.
BOUNDLESS TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
State of New York )
)ss.:
County of New York)
On the ___ day of June in the year 2002 before me, the undersigned, personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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.
Notary Public
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EXHIBIT A
(Description of Premises)
BOUNDLESS TECHNOLOGIES, INC., as Mortgagor
and
JPMORGAN CHASE BANK, as Collateral Agent, as Mortgagee
------------------------------------------------------
MORTGAGE
(Fee)
------------------------------------------------------
Dated : June ___, 2002
Location: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
RECORD AND RETURN TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇, P.C.
EAB Plaza - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The premises described within this instrument are also known as District 0800,
Section 181.00, Block 01.00 and Lot 005.000 and District 0800, Section 181.00,
Block 03.00 and Lot 002.30 on the Official Tax Map of Suffolk County.
