MORTGAGE CONSOLIDATION,
MODIFICATION AND EXTENSION AGREEMENT
Dated: February 9, 2006
in the amount of
$12,000,000.00
from
INTERPHARM, INC., Mortgagor
a New York corporation
having an address at:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
to
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, acting through its
▇▇▇▇▇ Fargo Business Credit operating division
having an address at:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LOCATION OF PREMISES:
Street Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ of: Yaphank
County of: Suffolk
State of: New York
District: 0200
Section: 813
Block: 1
Lots: 5.005 & 5.006
After recording, please return to:
Ruskin Moscou Faltischek, P.C.
1425 Reckson Plaza
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
MORTGAGE MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENT (the
"Consolidation Agreement"), made as of February 9, 2006, given by Interpharm,
Inc., a New York corporation, having an address at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Mortgagor"), in favor of ▇▇▇▇▇ Fargo Bank, National Association,
acting through its ▇▇▇▇▇ Fargo Business Credit operating division, having an
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Mortgagee").
W I T N E S S E T H :
WHEREAS, Mortgagor is the lawful owner of that certain parcel of
real property known as ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, in the Town of Yaphank, County of
Suffolk, State of New York, as more particularly described in Schedule A
attached hereto and made a part hereof (the "Land"), together with all buildings
and other improvements located on the Land (the Land, together with all such
buildings and other improvements, collectively, the "Premises");
WHEREAS, Mortgagee is now the lawful owner and holder of those
certain promissory notes set forth on Schedule B attached hereto and made a part
hereof (collectively, the "Notes") in the aggregate original principal amount of
Twelve Million and No/100 Dollars ($12,000,000.00), on which Notes there is
currently outstanding, in the aggregate, the principal amount of Twelve Million
and No/100 Dollars ($12,000,000.00);
WHEREAS, the Notes are secured by those certain mortgages set forth
on Schedule B (collectively, the "Mortgages"), given by Mortgagor, which
Mortgages encumber the Premises;
WHEREAS, Mortgagor and Mortgagee have agreed in the manner
hereinafter set forth to (i) consolidate and coordinate the respective liens of
the Mortgages, (ii) combine and coordinate the Notes and the principal sums
evidenced thereby and (iii) modify the time and manner of payment and the terms
and provisions of the Notes and the Mortgages.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Representations and Warranties. Mortgagor represents and warrants
to Mortgagee that:
(a) There is, as of the date hereof, due and owing upon the
Mortgages, the aggregate principal amount of Twelve Million and No/00 Dollars
($12,000,000.00), together with interest thereon and other charges evidenced
thereby, in each case without offset, defense or counterclaim of any kind or
nature whatsoever. (Such outstanding amounts, together with all interest thereon
and such other amounts as may be outstanding from time to time under the Notes
and Mortgages and under the Consolidated Note (as hereafter defined), and any
and all liability, whether liquidated or unliquidated, defined, contingent,
conditional or of any other nature whatsoever, and performance of all other
obligations, arising under any swap, derivative, foreign exchange or hedge
transaction or arrangement howsoever described or defined at any time entered
into with Mortgagee in connection with the Indebtedness being hereinafter
referred to, collectively, as the "Indebtedness").
(b) As of the date hereof, there are no defaults or events of
default under the Notes and Mortgages, nor has any event occurred which would be
a default thereunder with the passage of time, the giving of notice, or both.
(c) Mortgagor is the holder of good, marketable, insurable fee
title in and to the Premises, subject to the Permitted Encumbrances (as defined
in Schedule C attached hereto) and has full power, good right and lawful
authority to encumber the Premises in the manner and form set forth in the
Mortgages and to execute and deliver this Consolidation Agreement.
(d) The execution and delivery of this Consolidation Agreement
does not and will not violate the terms of Mortgagor's certificate of
incorporation or by-laws, or any other lease, agreement, mortgage, indenture or
instrument affecting Mortgagor or the Premises or any law, rule, order,
ordinance or statute of any governmental authority, purporting to have
jurisdiction over Mortgagor or the Premises.
2. Consolidation of Notes. The Notes and the respective principal
indebtedness evidenced thereby are hereby combined and consolidated to
constitute a single indebtedness in the aggregate principal amount of Twelve
Million and No/00 Dollars ($12,000,000.00), together with interest heretofore
accrued on each of such Notes.
3. Consolidated Note. Concurrently herewith, Mortgagor is executing
and delivering to Mortgagee that certain Consolidated Real Estate Term Note (the
"Consolidated Note"), dated of even date herewith, made by Mortgagor, as maker,
in favor of Mortgagee, as payee, evidencing the consolidation of the Notes,
which Consolidated Note amends, modifies and restates the terms, provisions and
time of payment of the Notes in all respects and from and after the date hereof,
the Notes shall be deemed replaced by the Consolidated Note and Mortgagor shall
pay the Indebtedness in accordance with, and shall comply with the terms and
conditions set forth in the Consolidated Note, which Consolidated Note is hereby
substituted for the Notes.
4. Consolidation of Mortgages. The liens of the Mortgages are hereby
consolidated and coordinated so that together they shall hereafter constitute in
law but one mortgage, a single, first lien upon the Premises securing the
Indebtedness.
5. Modification of Consolidated Mortgage. The Mortgages, as
consolidated and coordinated hereby, are also modified, extended, amended and
restated in their entirety and the terms, covenants and conditions of the
Mortgages, as consolidated, shall be and hereby are superseded and replaced by
the terms, covenants and conditions set forth in Schedule C annexed hereto and
made a part hereof (the Mortgages, as so consolidated, modified, extended,
amended and restated in Schedule C hereto, together with this Consolidation
Agreement, are referred to, collectively, as the "Consolidated Mortgage").
Mortgagor agrees to comply with and be subject to all of the terms, covenants
and conditions of this Consolidated Mortgage.
6. Use of Terms. The terms "Improvements" and "Mortgaged Property"
shall have the meanings ascribed to them in Schedule C attached hereto when used
in this Consolidated Mortgage. Whenever the term "note" or "Note", shall be used
in this Consolidated Mortgage or in the Consolidated Note, such terms shall mean
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and refer to the Consolidated Note, as such Consolidated Note may be further
modified from time to time. Whenever the terms "mortgage" or "Mortgage" shall be
used in this Consolidated Mortgage (including, without limitation, Schedule C
hereto), or in the Consolidated Note, such terms shall mean and refer to this
Consolidated Mortgage, as this Consolidated Mortgage may be further modified
from time to time. Terms defined in this Consolidation Agreement that are used
in Schedule C hereto that are not otherwise defined in such schedules, shall
have the meaning accorded such terms in this Consolidation Agreement.
7. Subsequent Modifications. Any written agreement or agreements
hereafter entered into by the Mortgagee which (i) extend the time of payment of
the Indebtedness, (ii) change or modify the time or times of payment or the
amount of the installments or fixed sums or the interest or the rate thereof,
(iii) change, modify, extend, renew or terminate other terms, provisions,
covenants or conditions of the Consolidated Mortgage or the obligations which it
secures or this Agreement, or (iv) consolidate, spread, release or sever the
lien of the Consolidated Mortgage shall be effective in accordance with the
terms and provisions thereof and shall be binding according to the tenor thereof
on the owner or holder of subordinate, intervening or subsequent liens or
security interests on the Premises and any such liens or security interests
shall continue to be subject and subordinate to this Consolidated Mortgage and
any such agreement or agreements.
8. No New Indebtedness; Maximum Principal Amount. (a) The parties
hereto hereby certify that this Consolidation Agreement secures the same
indebtedness evidenced by the Notes, together with interest thereon, and secured
by this Consolidated Mortgage, and evidences and secures no further or other
indebtedness or obligation.
(b) Notwithstanding anything to the contrary contained herein,
the maximum principal sum which is secured by the Consolidated Mortgage as of
the date hereof, or which under any contingency may be secured by the
Consolidated Mortgage at any time in the future, shall not exceed the principal
sum of Twelve Million and 00/100 Dollars ($12,000,000.00).
9. No Oral Modification. The terms hereof may not be waived,
changed, modified, terminated or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any such waiver, change,
modification, termination or discharge is sought.
10. Ratification. Mortgagor hereby (i) ratifies and confirms the
Indebtedness and the lien, conveyance and grant contained in and created by this
Consolidated Mortgage and (ii) agrees that nothing contained in this
Consolidation Agreement is intended to or shall impair the validity of the
Indebtedness or the lien, conveyance and grant of the Consolidated Mortgage.
Unless specifically modified by the terms hereof, the parties hereto ratify and
confirm each and every term of the Consolidated Mortgage and the Consolidated
Note, which shall continue in full force and effect.
11. Further Assurances. Mortgagor shall execute and deliver, at
Mortgagor's sole cost and expense, such additional documents as shall be
requested by Mortgagee from time to time to effectuate the terms and conditions
3
of this Consolidation Agreement, the Consolidated Note and the Consolidated
Mortgage, including, without limitation, such affidavits as shall be necessary
to permit this Consolidation Agreement to be recorded in the appropriate public
records. Mortgagor hereby appoints Mortgagee its attorney-in-fact to execute,
acknowledge and deliver for and in the name of the Mortgagor any and all of the
instruments mentioned in this section, and this power, being coupled with an
interest, shall be, irrevocable as long as any part of the Indebtedness remains
unpaid.
12. Successors and Assigns. This Consolidation Agreement shall bind,
and inure to the benefit of, the parties hereto, their respective successors and
permitted assigns.
13. Counterparts. This Consolidation Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, this Consolidation Agreement has been executed
by the parties hereto as of the day and year first written above.
MORTGAGOR:
INTERPHARM, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial
Officer
MORTGAGEE:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
acting through its ▇▇▇▇▇ Fargo Business
Credit operating division
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On the 9th day of February, in the year 2006, 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
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On the 9th day of February, in the year 2006, 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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SCHEDULE A
Description of Land
SCHEDULE B
Schedule of Notes and Mortgages
1. Mortgage dated June 29, 2004, made by Interpharm Realty, LLC to HSBC
Bank USA in the principal sum of $7,400,000.00 and recorded on July
14, 2004 in Liber 20795 page 614 in the office of the Suffolk County
Clerk.
Which Mortgage was assumed by an Note and Mortgage Assumption
Agreement between Interpharm, Inc. and HSBC Bank USA dated as of
March 14, 2005 and recorded on July 20, 2005 in Liber 21090 page 206
in the office of the Suffolk County Clerk.
Which Mortgage was amended and assumed by an Amended and Restated
Note and Mortgage Assumption Agreement dated April 11, 2005 between
Interpharm, Inc. to HSBC Bank USA and recorded on May 10, 2005, in
Liber 21043, Page 932 in the office of the Suffolk County Clerk.
Which Mortgage was assigned by an Assignment of Mortgage by HSBC
Bank USA to ▇▇▇▇▇ Fargo Bank, National Association, acting through
its ▇▇▇▇▇ Fargo Business Credit operating division, and to be
recorded simultaneously herewith in the office of the Suffolk County
Clerk.
Which Mortgage as assigned has an unpaid principal balance in the
amount of $6,845,000.06.
2. Demand Mortgage and Security Agreement dated February 9, 2006 made
by Interpharm, Inc. to ▇▇▇▇▇ Fargo Bank, National Association,
acting through its ▇▇▇▇▇ Fargo Business Credit operating division,
in the principal sum of $5,154,999.94 and to be recorded
simultaneously herewith in the office of the Suffolk County Clerk.
SCHEDULE C
Mortgage