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EXHIBIT 10.63
MORTGAGE MODIFICATION AND CONSOLIDATION AGREEMENT
THIS MORTGAGE MODIFICATION AND CONSOLIDATION AGREEMENT made as of this
____ day of April, 1998, between DECORA, INCORPORATED, a Delaware corporation
authorized to do business in the State of New York as Decora Manufacturing and
having its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, the "Mortgagor" or "Borrower", and FLEET NATIONAL BANK, a banking
association organized and existing under the laws of the United States of
America with an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ of
New York 12207, hereinafter the "Mortgagee".
WHEREAS, the Mortgagee is the holder of the below listed mortgages as to
the Premises (herein called "Prior Mortgages As To The Premises"); and the below
listed notes, to pay money secured by said Prior Mortgage As To The Premises
(said notes hereinafter called the "Instruments Of Indebtedness Secured By The
Prior Mortgages As To The Premises"):
Prior Mortgage No. 1
That certain revolving line of credit note dated the 19th day of July,
1994 executed by the Mortgagor in favor of the Mortgagee in the face
amount of Six Million and no/100 Dollars ($6,000,000.00) and amended and
restated in its entirety pursuant to the terms of a Restated Promissory
Note (Revolving Line of Credit) in the face amount of Six Million and
no/100 Dollars ($6,000,000.00) executed by the Mortgagor in favor of the
Mortgagee on August 13, 1996 ("Note No. 1"); which Note is secured in
part to the extent of Four Million and no/100 Dollars ($4,000,000.00)
only by a mortgage made and given by the Mortgagor, dated the 18th day
of April, 1990, and recorded in the Office of the Clerk of the County of
Washington, New York, on the 23rd day of April, 1990, in Book 601 of
Mortgages at Page 291, as modified by Mortgage Modification Agreement by
and between the Mortgagor and the Mortgagee dated July 19, 1994 and
recorded in the Office of the Clerk of the County of Washington, New
York on the 25th day of July, 1994 in Book 846 of Mortgages at Page 199
(the "Mortgage"); and as further modified by Mortgagee Modification
Agreement by and between the Borrower and the Bank dated the 27th day of
March, 1997 and recorded in the Office of the Clerk of the County of
Washington, New York on the 28th day of March, 1997 in Book 995 of
Mortgages at Page 213. Prior Mortgage No. 1 has a principal balance due
and unpaid of $2,500,000.00.
Prior Mortgage No. 2
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That certain Demand Note bearing even date executed by the Mortgagor to
the Mortgagee in the face amount of Four Hundred Ninety-Nine Thousand
and 00/100 Dollars ($499,000.00) ("Demand Note") which Demand Note is
secured in part to the extent of $499,000.00 by that certain Mortgage
("Prior Mortgage No. 2") bearing even date in the amount of $499,000.00
from Mortgagor to Mortgagee, which mortgage will be recorded in
Washington County Clerk's Office concurrently herewith. Prior Mortgage
No. 2 has a principal balance due and unpaid of $499,000.00.
WHEREAS, the aggregate principal indebtedness owed by the Mortgagor to
the Mortgagee under the above mentioned Instruments Of Indebtedness Secured By
The Prior Mortgages As To The Premises, is $2,999,000.00, as of the date hereof
(all interest thereon having been paid to date); and
WHEREAS, the Mortgagor hereunder and the Mortgagee hereunder desire to
consolidate, modify and extend the indebtedness of $2,500,000.00 evidenced by
Prior Mortgage No. 1 and the indebtedness of $499,000.00, evidenced by Prior
Mortgage No. 2 into one consolidated principal indebtedness of Two Million Nine
Hundred Ninety-Nine Thousand and 00/100 Dollars ($2,999,000.00), and to amend,
modify, consolidate, and extend this Mortgage Modification and Consolidation
Agreement, with the Prior Mortgages As To The Premises, so that together, this
Mortgage Modification and Consolidation Agreement and the Prior Mortgages As To
The Premises shall all constitute in law but one first mortgage and consolidated
first mortgage lien in the amount of $2,999,000.00 upon the entire Premises
attached at Schedule "A" to this Mortgage Modification and Consolidation
Agreement.
WHEREAS, the Bank has agreed at the request of the Mortgagor to (i)
extend to the Mortgagor a new loan in the amount of Twelve Million Five Hundred
Thousand and no/100 Dollars ($12,500,000.00) pursuant to the terms of a demand
note in said amount executed by the Mortgagor in favor of the Bank on even date
herewith (the "Demand Note") and to consolidate the outstanding principal
balance of Note No. 1 with the Demand Note, and as consolidated to modify and
restate the terms of Note No. 1 and the Demand Note into one consolidated and
restated revolving promissory note in the face amount of Fifteen Million and
00/100 Dollars ($15,000,000.00) (the "Restated Revolving Promissory Note"); and
WHEREAS, it is a condition to the Mortgagee agreeing to extend to the
Mortgagor the additional monies evidenced by the Demand Note that the Mortgage
continue to secure to the extent of Two Million Nine Hundred Ninety-Nine
Thousand Nine Hundred and no/100 Dollars ($2,999,000.00) the Restated Revolving
Promissory Note in the face amount of Fifteen Million Dollars ($15,000,000.00);
NOW, THEREFORE, in pursuance of said agreement and in consideration of
the mutual promises, covenants and agreements herein contained and other
valuable
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consideration, the receipt of which is hereby respectively acknowledged by the
parties, the Mortgagor and the Mortgagee mutually covenant and agree as follows:
THAT the lien of this Mortgage Modification and Consolidation Agreement,
plus the lien of the Prior Mortgages As To The Premises are hereby consolidated
so that together they shall hereinafter constitute in law but one first mortgage
and a single lien, securing the principal sum of $2,999,000.00 with interest as
hereinafter provided upon the Premises.
THAT the Instruments of Indebtedness Secured By The Prior Mortgages As
To The Premises, are all consolidated into one Restated Revolving Promissory
Note in the principal sum of 15,000,000.00 executed by the Mortgagor hereunder
in favor of the Mortgagee hereunder and simultaneously herewith. Said Note is
repayable, together with interest in certain monthly installments - all as more
fully set forth in said Note (which Note is hereinafter referred to as the
"Note"), and the terms and conditions of which are incorporated herein and made
a part hereof as if specifically set forth.
THAT all the terms and conditions of the Prior Mortgages As
To The Premises are hereby amended and modified to read as hereinafter set
forth, said Prior Mortgages As To The Premises and this Mortgage Modification
and Consolidation Agreement are all hereinafter referred to and described as
"Mortgage".
That the Mortgagor, for further securing the payment of said Note, and
interest thereon, hereby mortgages to the Mortgagee all those certain pieces or
parcels of land, with the buildings and improvements erected thereon, more
particularly described in Schedule A attached hereto and made a part hereof
(herein called the "premises" or "mortgaged premises."
TOGETHER WITH all rights, title and interest of the Mortgagor in and to
the following property, rights and interests (the Premises and the Improvements
together with such property, rights and interest being hereinafter collectively
called the "mortgaged premises"):
(a) all easements, rights-of-way, gores of land, streets, ways
alleys, passages, sewer rights, 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 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;
(b) all fixtures and articles now or hereafter attached to said
premises which constitute part of the building, building systems and/or
real estate improvements and which cannot be removed without significant
damage either to the
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realty or to the article being removed or both, including but not
limited to antennas, towers, transmission lines, sample systems, remote
control units, wiring, catwalks, transformers, transmitters, other radio
and/or tv transmission and communication equipment, furnaces, boilers,
oil or gas burners, fire extinguishers and other fire preventing and
extinguishing apparatus, hoses, fans, conveyors, air compressors,
scales, radiators and heating units and piping, plumbing, washroom and
drinking facilities, air conditioning, humidifying and sprinkler
systems, building electrical fixtures and wiring, fluorescent fixtures,
elevators, dynamos, incinerators, water pumps, together with any and all
replacements thereof and additions thereto. Notwithstanding the
foregoing, this Mortgage shall not cover machinery, equipment, furniture
and fixtures that can be removed without significant damage to either
the realty or the article being removed, or both and the Mortgagee's
lien will remain on those fixtures which are are so annexed to the
realty that they cannot be removed without significant damage to either
the realty or the article being removed, or both;
(c) all awards or payments, including interest thereon, and the
right to receive the same, which may be made with respect to the
mortgaged premises, 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 premises;
(d) all leases and other agreements affecting the use or
occupancy of the mortgaged premises now or hereafter entered into, and
the right to receive and apply the rents, issues and profits of the
mortgaged premises to the payment of the aforementioned indebtedness;
(e) all proceeds of any unearned premiums on any insurance
policies covering the mortgaged premises, 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
premises;
(f) 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 premises and to commence any action or proceedings to
protect the interest of the Mortgagee in the mortgaged premises.
That the Mortgagor agrees that the Mortgage shall secure to the extent
of Two Million Nine Hundred Ninety-Nine Thousand and no/100 Dollars
($2,999,000.00) only the Restated Revolving Promissory Note bearing even date in
the face amount of $15,000,000.00, and that this is a "Credit Line Mortgage" as
defined in New York State Tax Law Section 253-b(2).
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That the full amount owed is secured, to the extent of $2,999,900.00
only, by the Mortgage described above, as modified which is and shall remain a
first lien on the premises described in Schedule A (the "Premises") attached
hereto and made a part hereof.
That notwithstanding anything to the contrary in this Mortgage, the
maximum aggregate principal amount of indebtedness that is, or under any
contingency may be, secured by this Mortgage (including Borrower's obligation to
reimburse advances made by Mortgagee), either at execution or at any time
thereafter (the "Secured Amount"), is Two Million Nine Hundred Ninety-Nine
Thousand and no/100 Dollars ($2,999,000.00), plus amounts that Mortgagee expends
after a declaration of default under this Mortgage to the extent that any such
amounts shall constitute payment of (i) taxes, charges or assessments that may
be imposed by law upon any Mortgaged Premises; (ii) premiums on insurance
policies covering any Mortgaged Premises; (iii) expenses incurred in upholding
the lien of this Mortgage, including the expenses of any litigation to prosecute
or defend the rights and lien created by this Mortgage; or (iv) any amount, cost
or change to which 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 amounts or costs, together with interest
thereon, shall be added to the indebtedness secured hereby and shall be secured
by this Mortgage.
That pursuant to the Restated Secured Revolving Line of Credit Agreement
("Credit Agreement") between the Mortgagor and Mortgagee bearing even date, the
amount of the Restated Revolving Promissory Note may increase and decrease from
time to time as Mortgagee advances, Borrower repays, and Mortgagee readvances
sums on account of the loan, all as more fully described in the Credit
Agreement. For purposes of this Mortgage so long as the balance of the loan
equals or exceeds the Secured Amount, the amount of the loan secured by this
Mortgage shall at all times equal only the Secured Amount as more fully
described above. Such Secured Amount represents only a portion of the first sums
advanced by Mortgagee with respect to the loan.
That the Secured Amount shall be reduced only by the last and final sums
the Borrower repays with respect to the loan and shall not be reduced by any
intervening repayments of the loan by Borrower. As of the date hereof, the total
amount of the loan exceeds the Secured Amount, so that the Secured Amount
represents only a portion of the Secured Obligations actually outstanding.
That so long as the balance of the loan exceeds the Secured Amount, any
payments and repayments of the loan by Borrower shall not be deemed to be
applied against, or to reduce, the portion of the Restated Revolving Promissory
Note secured by this Mortgage, as more fully described above.
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That the Mortgagor agrees to comply with and perform all the obligations
and conditions of the Mortgage, as hereby modified, for the benefit of the Bank.
That the security of the Mortgage shall not be lessened by any
provisions of this Agreement; but whenever the terms and conditions of this
Agreement conflict in any way with the terms or conditions of the Mortgage, the
terms and conditions of this Agreement shall control and prevail.
That the Mortgagor hereby warrants and covenants to the Mortgagee that
as of the date of this Agreement, there are no disputes, offsets, claims or
counterclaims of any kind or nature whatsoever under the Mortgage or any of the
documents executed in connection herewith or therewith or the obligations
represented or evidenced hereby or thereby.
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 with the Mortgagee as follows:
1. PAYMENT. The Mortgagor promises to pay the principal and interest on
the Note when due and payable, plus all other indebtedness secured by this
Mortgage.
2. WARRANTY OF TITLE. The Mortgagor warrants the title to the mortgaged
premises, and confirms and ratifies that the full amount owed as described above
is secured by the Mortgage.
3. CASUALTY AND OTHER INSURANCE. Mortgagor shall maintain insurance
against such risks and for such amounts as are customarily insured against by
businesses of like size and type in the area, including the following:
(a) Mortgagor shall keep all improvements situated on the
mortgage premises continuously insured against loss by fire and the
risks covered under a so-called "extended coverage endorsement", flood,
explosion of boilers, heating apparatus and other pressure vessels, and
such other hazards, casualties and contingencies as Mortgagee from time
to time reasonably may require, in an amount equal to one hundred
percent (100%) of the replacement cost of such Improvements. All such
insurance shall be evidenced by valid and enforceable policies in form
and substance satisfactory to Mortgagee. Without limiting the generality
of the foregoing: (a) all such insurance policies shall contain an
endorsement requiring thirty (30) days written notice to Mortgagee at
the following address: Fleet National Bank, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇/▇▇/▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, prior to cancellation or change in the
coverage, scope or amount of any such policy or policies; and (b) any
and all policies
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evidencing casualty insurance shall provide that any and all loss shall
be payable to Mortgagee notwithstanding any act or omission of Mortgagor
which might otherwise result in cancellation or forfeiture of said
insurance:
(b) Insurance against loss or damage by flood, such insurance to
be in an amount not less than the principal amount of the Loan unless
Mortgagee receives satisfactory evidence that no portion of the Premises
is located within an area identified by the U.S. Department of Housing
and Urban Development as having special flood hazards;
(c) Business interruption (extra expense/loss of income)
insurance in an amount sufficient to cover any loss of income from the
Premises for a period of not less than 12 months; and
(d) Insurance protecting Mortgagor against loss arising from
liability imposed by law or assumed in any written contract and loss or
liability arising from personal injury, including bodily injury or
death, or damage to the property of others, caused by an accident or
occurrence with a limit of liability of not less than $1,000,000
(combined single limit for personal injury, including bodily injury or
death, and property damage).
All policies of insurance required by this Section shall be procured and
maintained in financially sound and generally recognized responsible insurance
companies selected by Mortgagor and authorized to write such insurance in the
State of New York. The company or companies issuing the policies of insurance
required by subparagraphs (a) and (c) hereof shall be rated "A" or better by
A.M. Best Co., Inc. in Best's Key Rating Guide. Such insurance may be written
with deductible amounts comparable to those on similar policies carried by other
companies engaged in businesses similar in size, character and other respects to
those in which Mortgagor is engaged. All policies evidencing the insurance
required by subparagraphs (a), (b) and (c) hereof shall contain a New York
standard mortgagee clause, without contribution, showing Mortgagee's interest as
first mortgagee, and loss payee shall provide for payment to Mortgagee of the
proceeds of insurance resulting from any claim for loss or damage thereunder,
shall provide for at least thirty (30) days' prior written notice to Mortgagee
of the cancellation of such policies and of any material change in the terms or
conditions thereof and shall provide for notice to Mortgagee of all material
claims made thereunder.
The policies (or binders) of insurance required by subparagraphs (a),
(b) and (c) hereof, together with proof of the payment of the premiums therefor,
and a photocopy of the policy (or binder) of insurance required by subparagraphs
(d) and (e) hereof shall be delivered to Mortgagee at the time of the execution
and delivery of this Mortgage. Mortgagor shall deliver to Mortgagee annually a
certificate reciting that there is in full force
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and effect insurance coverage of the types and in the amounts required by this
Section and complying with the requirements hereof. Prior to the expiration of
each such policy, Mortgagor shall furnish Mortgagee with satisfactory evidence
that such policy has been renewed or replaced or is no longer required.
Mortgagor shall pay all premiums on the insurance policies required by this
Section and shall provide such further information with respect to the insurance
coverage required hereby as Mortgagee may from time to time reasonably require.
Mortgagor shall promptly notify Mortgagee of any loss, damage or other
casualty with resect to the Improvements, the Equipment or any part thereof.
Mortgagor shall not permit any condition to exist on the Premises or in the
Improvements which would wholly or partially invalidate the insurance thereon.
Mortgagor hereby assigns to Mortgagee all of its right, title and interest in
and to the insurance policies required by subsections (a) and (b) hereof,
including any unearned premiums thereon, such assignment to take effect
immediately upon the occurrence of any Event of Default. Mortgagor hereby
irrevocably authorizes Mortgagee to participate with Mortgagor in the adjustment
and compromise of any insurance claims for any loss, damage or other casualty
with respect to the improvements, the Equipment or any part thereof under said
insurance policies, to collect and receive any Casualty Insurance Proceeds from
the insurers paying the same, to give proper receipts and acquittances therefor
and, at Mortgagee's sole option, to apply all or any portion of the Net Proceeds
thereof to payment on account of the unpaid principal amount of the Loan,
whether then matured or not, together with interest thereon at the Contract Rate
to the date of receipt of such payment by Mortgagee, or to make the same
available to Mortgagor, in whole or in part, for the purpose of repairing,
restoring, rebuilding or replacing the damaged Improvements and/or Equipment, in
which case such proceeds shall be payable to Mortgagor in such installments and
under such terms and conditions as Mortgagee may require. After application in
accordance with the terms of this Mortgage, the remaining portion of the
Casualty Insurance Proceeds (if any) shall be paid over to Mortgagor or
otherwise as a court of competent jurisdiction may direct. Mortgagor shall
submit to Mortgagee for prior approval the proposed amount of any Casualty
Insurance Proceeds to be paid by reason of any such loss, damage or casualty.
Mortgagor hereby appoints Mortgagee its agent and attorney-in-fact (which
appointment shall be deemed to be an agency coupled with an interest), with full
power of substitution, to participate in the adjustment and compromise of any
Casualty Insurance Proceeds on its behalf in the event that, at the time of any
such loss, damage or casualty, any Event of Default has occurred and is
continuing. Mortgagor shall execute and deliver to Mortgagee on demand such
assignments and other instruments as Mortgagee may require for such purposes and
shall reimburse Mortgagee for its costs (including reasonable legal fees) in the
collection of any Casualty Insurance Proceeds.
Business Interruption Insurance Proceeds shall be applied by Mortgagee,
to the extent received, first to the payment of Taxes, and then to the payment
of premiums for the policies of insurance required by this Section and then to
the payment of amounts required to be paid
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by any law or ordinance relating to the use of occupancy of the Premises or the
Improvements or by any requirement, order or notice of violation thereof issued
by any Governmental Agency and then to the payment of installments of principal
and/or interest required to be made by Mortgagor under the Note, as and when the
same become due and payable. After application in accordance with the terms of
this Mortgage, the remaining portion of Business Interruption Insurance Proceeds
(if any) shall be paid over to Mortgagor or otherwise as a court of competent
jurisdiction may direct.
Within 15 days of receipt of written request therefor, Mortgagor shall
deliver to Mortgagee receipted bills, cancelled checks or other proof reasonably
satisfactory to Mortgagee evidencing payment of the premiums for the policies of
insurance required by this Section.
At any time during the term of the Loan, Mortgagee may require Mortgagor
to pay to Mortgagee on the first day of each and every month, together with and
in addition to the monthly installment of principal and/or interest required to
be paid under the Note, a sum equal to the premiums next due under said policies
of insurance (as estimated by Mortgagee), less all sums already paid therefor,
divided by the number of monthly installments of principal and/or interest due
under the Note one month prior to the date on which such premiums shall be due
and payable, which sums, to the extent received, will be held without interest
and applied by Mortgagee to the payment of such premiums as and when the same
become due and payable. If such monthly insurance escrow payments become due at
a time when any premium shall not have been determined, such payments shall be
estimated on the basis of the premium for the preceding year. If the premium
when determined varies from the premium as estimated, (a) any excess arising
from such monthly payments shall be retained by Mortgagee to be applied in
reduction of subsequent monthly payments and (b) any deficiency in the amount of
such monthly payments shall be paid by Mortgagor to Mortgagee on demand.
4. NO ALTERATIONS. No building or improvement presently on or
hereinafter constructed on the mortgaged premises shall be removed, demolished
or altered in such a manner as to adversely affect its structural strength or
its value, without the consent of the Mortgagee.
5. TAXES. The Mortgagor will pay all taxes, including corporate
franchise taxes, if applicable, assessments and/or water rates and/or sewer
rates and/or any and all taxes, charges, assessments which are applicable to the
use and/or occupancy and/or existence of the mortgaged premises; and in the
event that the Mortgagor fails to pay same, Mortgagee may (but is not obligated
to) pay same and the Mortgagor will on demand, pay to the Mortgagee any amounts
so paid, by the Mortgagee with interest from the day of payment, and the same
shall be deemed to be secured by the Mortgage and shall be collectible thereupon
in like manner as the principal monies. In addition to the foregoing, but only
in the
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event that the Mortgagor is in default, the Mortgagor agrees, that upon fifteen
(15) days of the receipt of written notice from the Mortgagee, that it will open
with the Mortgagee, or a commercial bank to be selected by the Mortgagee, a
separate account designated as "Real Property Tax and Insurance Account" and
will deposit in said account on the first day of each month thereafter until the
entire indebtedness represented by the Note and interest thereon, shall have
been paid in full, a sum equal to l/l2th of the estimated annual taxes and
assessments levied upon the mortgaged premises and l/l2th of the estimated
annual premium for casualty insurance with reference to said mortgaged premises;
any deficiency in the amount so held in said separate account to be payable by
the Mortgagor on demand.
6. ESTOPPEL CERTIFICATE. The Mortgagor within three (3) days upon
request in person or within five (5) days upon request by mail will furnish a
written statement duly acknowledged of the amount due on this Mortgage and
whether any offsets or defenses exist against the mortgage debt.
7. SECTION 911 of the BUSINESS CORPORATION LAW. If the Mortgagor is a
New York corporation or a corporation authorized to do business in the state of
New York, this Mortgage is made, executed and delivered pursuant to the
provisions of Section 911 of the Business Corporation Law and that Mortgagor's
Certificate of Incorporation does not require the consent of stockholders to
mortgage its real property or chattels.
8. SECTION 13 OF THE LIEN LAW. The Mortgagor will receive the proceeds
of indebtedness secured by this Mortgage subject to the trust fund provisions of
Section 13 of the Lien Law.
9. NO RELEASE OR DISCHARGE UNTIL FULL PAYMENT. Regardless of any
subsequent agreement with any other person, firm or corporation modifying,
amending, altering or changing the terms of the Note or any agreement referred
to in said Note or this Mortgage, or spreading the lien thereof, or
consolidating the same with any other mortgage, the obligations of the Mortgagor
to pay the indebtedness and interest at the rate specified in the Note secured
by this Mortgage shall not be released or discharged or affected in any way
until the full payment of all indebtedness evidenced by the Note with interest
at the rate therein specified.
10. BOOKS, RECORDS AND FINANCIAL STATEMENTS. The Mortgagor will at all
times keep proper books and records and accounts in accordance with generally
accepted accounting principles consistently applied and shall within fifteen
(15) days of demand, permit the Mortgagee or its representatives to examine such
books and records and all supporting vouchers and data at any time from time to
time on request, at its offices, or at such other location as may be mutually
agreed upon.
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11. ENVIRONMENTAL COMPLIANCE AND INDEMNIFICATION. The
Mortgagor and Mortgagee have executed and delivered an "Environmental Compliance
and Indemnification Agreement" ("Environmental Agreement") bearing even date
affecting the mortgaged premises. Any financial liability of the Mortgagor to
the Mortgagee accruing under the Environmental Agreement or monies paid by the
Mortgagee pursuant to said agreement shall be secured by the lien of this
Mortgage.
12. MORTGAGE TAX. Mortgagor agrees that in the event that mortgage
recording tax is required for any reason whatsoever, Mortgagor will pay said tax
on demand to Mortgagee; and if Mortgagor fails to pay said tax, the Mortgagee
may pay same. The amounts paid by the Mortgagee, plus interest at the rate set
forth in the Note from the date of payment, shall be deemed to be secured by
this Mortgage and shall be collected in like manner as the principal monies.
13. DEFAULT. The Mortgagee shall be entitled, at its option, to declare
the Mortgagor in default and the whole of the indebtedness and interest to be
immediately due and payable:
(a) after failure to pay any installment of principal or of
interest for ten (l0) days;
(b) after failure to pay any tax, water rate or assessment, or to
exhibit to the Mortgagee receipts evidencing payment thereof, within ten
(l0) days after notice and demand;
(c) after failure to pay any premiums on the policies insuring
the buildings and improvements on the mortgaged premises, or to exhibit
to the Mortgagee receipts evidencing payment thereof, or to assign and
deliver such policies to the Mortgagee, or to reimburse the Mortgagee
for premiums paid on such insurance, within three (3) days after notice
and demand;
(d) after failure, upon request, to furnish a statement of the
amount due on this Mortgage and whether any offsets or defenses exist
against the mortgage debt, as hereinbefore provided;
(e) upon the actual or threatened removal or demolition of any
building or improvement on the mortgaged premises or the commission of
any waste on the mortgaged premises;
(f) upon the actual or threatened removal by anyone of any
fixtures subject to the lien of this Mortgage;
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(g) upon failure of the Mortgagor to notify the Mortgagee in
writing within five (5) days after loss or damage caused by fire or
other casualty to the mortgaged premises, or any part thereof, and prior
to making of any repairs thereto, or the refusal of the Mortgagor to
permit the Mortgagee to inspect such loss or damage prior to the making
of any repairs thereto;
(h) upon failure to pay any Mortgage tax now due or hereafter due
on this Mortgage within thirty (30) days after notice and demand given
by the Mortgagee to the Mortgagor;
(i) in the event that the Mortgagor conveys, sells, assigns, or
otherwise transfers the mortgaged premises, or any part thereof, or any
interest therein, without the prior written consent of the Mortgagee;
(j) in the event that the Mortgagor assigns the rents, or any
part thereof, of the mortgaged premises or accepts prepayment of rents
with respect to all or any part of the mortgaged premises covering a
period greater than one (l) month;
(k) upon failure of the Mortgagor to cure any violation of any
governmental requirements respecting the mortgaged premises including
without limitation any laws, rules or regulations governing hazardous
waste removal and clean-up or arising from an intentional or
unintentional action or omission of the Mortgagor or any previous owner
and/or operator of the mortgaged premises, within ten (l0) days after
receipt of written notice and demand from the Mortgagee; or, if in the
reasonable judgment of the Mortgagee, any said violation cannot be cured
within said ten (10) day period, failure to either commence a cure
within said ten (10) day period and/or to pursue said cure diligently
until completed;
(l) upon the breach by the Mortgagor of any covenant or provision
contained in this Mortgage, or upon the default in any debt instrument,
term loan agreement, building loan agreement, environmental
indemnification agreement or any instrument of collateral security
delivered by or on behalf of the Mortgagor to the Mortgagee;
(m) upon the imposition of any liens, charges, or encumbrances
upon the mortgaged premises after the date hereof, which liens, charges
or encumbrances are not released, vacated, suspended, discharged, or
bonded to the satisfaction of the Mortgagee within thirty (30) days of
their imposition;
(n) in the event that the Mortgagor fails to submit to the
Mortgagee the financial statements as required by paragraph 10 hereof,
and continuance of such failure for thirty (30) days after receipt of
written notice from the Mortgagee;
13
(o) voluntary suspension of all or a substantial part of its
businesses as a going concern by the Mortgagor; insolvency or
dissolution of the Mortgagor; commencement of any proceedings under any
bankruptcy or insolvency law by the Mortgagor; an assignment for the
benefit of creditors by the Mortgagor; application for consent to the
appointment of any receiver or trustee or custodian for the Mortgagor of
all or any substantial portion of the property of the Mortgagor; or
assignment to an agent authorized to liquidate any substantial part of
the assets of the Mortgagor.
(p) commencement of any proceedings under any bankruptcy or
insolvency law against the Mortgagor, which proceedings are involuntary
in nature and failure to have said proceedings dismissed within sixty
(60) days after the commencement thereof; or issuance of a writ,
warrant, attachment or similar process against all or any substantial
portion of the property of the Mortgagor and failure to have such writ,
attachment or similar process released or bonded within sixty (60) days
after its issuance.
(q) default beyond any grace period pursuant to the terms and
conditions of any other loan by the Mortgagee to the Mortgagor;
(r) if any information furnished by or any representation or
warranty of Mortgagor or of any Guarantor, or any representative of
Mortgagor or of any Guarantor, made herein or in any instrument or
financial statement furnished in connection herewith, or in any
guaranty, shall prove false or misleading in any material respect;
(s) Upon an event of default under any agreement document or
instrument between the Mortgagor and Mortgagee, including but not
limited to a Restated Revolving Promissory Note in the amount of
$15,000,000.00 bearing even date.
If the Mortgagee declares the Mortgagor to be in default, the
Mortgagee personally, or by its agents or attorneys, may enter into and upon all
or any part of the mortgaged premises, and each and every part thereof, and may
exclude the Mortgagor, its agents and servants wholly therefrom; and having and
holding the same, may use, operate, manage and control the mortgaged premises,
either personally or by its superintendents, managers, agents, servants,
attorneys or receivers; and upon every such entry, the Mortgagee at the expense
of the mortgaged premises, from time to time, either by purchase, repairs or
construction, may maintain and restore the mortgaged premises, whereof it shall
become possessed as aforesaid, may complete the construction of the improvements
and in the course of such completion may make such contemplated improvements as
it may deem desirable and may insure the same; and likewise, from time to time,
at the expense of the mortgaged
14
premises, the Mortgagee may make all necessary or proper repairs, renewals and
replacements and such useful alterations, additions, betterments and
improvements thereto and thereon as to it may seem advisable; and in every such
case, the Mortgagee shall have the right, but not the obligation, to manage and
operate the mortgaged premises and exercise all rights and powers of the
Mortgagor with respect thereto, either in the name of the Mortgagor or otherwise
as it shall deem best. In addition to the foregoing, the Mortgagor, may proceed
forthwith to protect and enforce its rights under this Mortgage and/or the other
loan documents by such suits, actions or proceedings, in equity or at law, as it
shall deem appropriate, including, without limitation, an action to foreclose
the lien of this Mortgage, in which case the mortgaged premises or any interest
therein or any part thereof may be sold in one or more interests and in any
order or manner. Moreover, the Mortgagee shall not be required to proceed
hereunder before proceeding against any other security, shall not be required to
proceed against any other security before proceeding hereunder, and shall not be
precluded from proceeding against any or all of any security in any order or at
the same time.
14. ASSIGNMENT OF RENTS.
(a) The Mortgagor hereby transfers, sells and assigns to the
Mortgagee, any existing and future leases with respect to the mortgaged
premises (the "Leases") and all rents, revenues, issues and profits now
due and hereafter to become due, under the terms of all Leases and other
rental arrangements or any renewals or replacements thereof concerning
any part or all of the mortgaged premises, all as further security for
the payment of the indebtedness. The Mortgagor also assigns to the
Mortgagee any award made hereafter to it in any court proceedings
involving any tenant(s) under any of the Leases in any bankruptcy,
insolvency or reorganization proceedings and any and all payments paid
by said tenant(s) in lieu of rent.
(b) If no event of default has occurred hereunder, the
Mortgagor shall have the right to collect the rents, income and profits
from the Leases, to administer the Leases and to retain, use and enjoy
the same; provided, however, that even if no event of default has
occurred (i) no rent more than one month in advance shall be collected
or accepted without obtaining the prior written consent of the Mortgagee
and (ii) the Leases shall not be modified or amended without the prior
written consent of the Mortgagee, which shall not be unreasonably
withheld or delayed.
(c) The Mortgagor represents and warrants that there are no other
assignments of the Leases and that all Leases presented to the Mortgagee
have not previously been amended and are in full force and effect.
15
(d) The rights assigned hereunder include all of the Mortgagor's
right and power to modify the Leases or to terminate the term thereof or
to accept a surrender thereof or to waive or release the tenants
thereunder from the performance, or observance of any obligations or
conditions or provisions thereof; provided, however, that so long as no
event of default shall have occurred hereunder, the Mortgagee shall not
have the right to exercise any of the aforesaid rights or powers without
the prior written consent of the Mortgagor.
(e) The Mortgagee shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by the Mortgagor
under the Leases and the assignment of the Leases effected hereby shall
not place responsibility for the control, care, management or repair of
the mortgaged premises (or any part thereof) on the Mortgagee or make
the Mortgagee responsible or liable for any negligence in the
management, operation, upkeep, repair or control of the mortgaged
premises. The Mortgagor hereby agrees to indemnify, to defend and to
save harmless the Mortgagee and its officers, members, agents and
employees from any and all liability arising from the Leases, or from
this assignment of Leases, or from any and all claims and demands
whatsoever that may be asserted against the Mortgagee or its officers,
members, agents or employees by reason of any alleged obligations or
undertakings on the part of the Mortgagee or its officers, members,
agents or employees to perform or discharge any of the terms of the
Leases prior to the date on which the Mortgagee elects to exercise its
rights as an assignee hereunder.
(f) The Mortgagor will (i) fulfill or perform every condition and
covenant of the Leases by the Landlord to be fulfilled or performed,
(ii) enforce, short of termination of the Leases, the performance and
observance of every covenant and condition of the Leases by the tenants
to be performed and observed thereunder, (iii) not terminate the Leases
without the prior written consent of the Mortgagee, which shall not be
unreasonably withheld or delayed, nor accept a surrender thereof, unless
required to do so by the terms of the Leases and (iv) deliver to the
Mortgagee, upon written demand, a statement specifying the rents and
other profits to be derived or received from the Leases for the periods
specified in such demand and true and correct copies of the Leases as
they then exist.
(g) In the event of a default hereunder, the Mortgagee, at its
option, without notice, either in person or by agent with or without
bringing any action or proceeding, or by a receiver to be appointed by a
court may: enter upon, take possession of, and operate the mortgaged
premises; make, enforce, modify and accept the surrender of Leases;
obtain and evict tenants; fix or modify rents; and do any acts which the
Mortgagee deems proper to protect the security hereof until all
indebtedness secured hereby is paid in full, and either with or without
taking possession of the mortgaged premises, in its own name, ▇▇▇ for or
otherwise collect and receive all rents, issues and
16
profits, including those past due and unpaid, and apply the same, less
costs and expenses of operation and collection, including reasonable
attorneys' fees, upon any indebtedness secured hereby in such order as
the Mortgagee may determine. The entering upon and taking possession of
said property, the collection of such rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any default or
waive, modify or affect any notice of default under this Mortgage.
15. REAL PROPERTY LAW 291-f. The Mortgagor shall not, and shall not have
the right or power, as against the Mortgagee without its consent, to cancel,
abridge or otherwise modify, or accept prepayments of installments of rent to
become due under any lease of the mortgaged premises or any part thereof not
made primarily for the residential purposes of the owner of the leasehold estate
and which is either now in existence and has an unexpired term of at least five
(5) years or hereafter is entered into for a term of at least five (5) years.
The Agreement contained in this paragraph has been made with reference to
section 29l-f of the New York State Real Property Law.
16. RECEIVER. The holders of this Mortgage, in any action to foreclose
it, shall be entitled to the appointment of a receiver of the rents and profits
of the said premises without notice, as a matter of right, without consideration
of the value of the mortgaged premises as security for the amounts due the
Mortgagee, or the solvency of any person or persons liable for the payment of
such amounts.
17. SALE IN ONE PARCEL. That in case of sale under foreclosure, the
mortgaged premises may be sold in one parcel.
19. FEES AND EXPENSES. All sums paid or incurred by the Mortgagee for
the expenses (including reasonable attorneys' fees) of enforcing, defending or
upholding the lien of this Mortgage, regardless of whether any action or
proceeding has been commenced, but including any action to foreclose the
Mortgage or to collect the debt secured thereby, shall be paid by the Mortgagor,
together with interest thereon at the rate set forth in the Note (but in no
event shall the interest rate be more than the law allows), and such sum and the
interest thereon shall be a lien on the mortgaged premises, prior to any right,
or title to, interest in or claim upon said mortgaged premises attaching or
accruing subsequent to the lien of the Mortgage and shall be secured by the
Mortgage. In addition to and not in limitation of the foregoing, in any action
or proceeding to foreclose the Mortgage, or to recover or collect the debt
secured thereby, the provisions of law respecting the recovery of costs,
disbursements and allowances shall also apply. The expenses of pursuing,
searching for, retaking, receiving, holding, storing, safe-guarding, any
environmental testing and cleanup, insuring, accounting for, advertising,
preparing for sale or lease, selling, leasing and the like, plus attorney's
fees, fees for certified public accountants, fees for auctioneers, fees for
brokers and/or appraisers, fees for security guards, fees for environmental
auditors and engineers, fees for hazard insurance premiums, or any other costs
or disbursements whatsoever incurred
17
by or contracted for by the Mortgagee in connection with the disposition of the
mortgaged premises (including any of the foregoing incurred or contracted for by
the Mortgagee in connection with any bankruptcy or insolvency proceedings
involving the Mortgagor) -- shall all be chargeable to Mortgagor and shall be
secured by the Mortgage, and said Mortgagor will also be responsible for any
deficiency.
Without limiting the generality of the foregoing, if at any time the
United States of America, any state thereof or any governmental subdivision of
such state, having jurisdiction, shall require internal revenue stamps to be
affixed to the Note, or other tax paid on or in connection therewith, Mortgagor
will pay the same with any interest or penalties imposed in connection
therewith. If, by reason of the additional sums that may become secured by the
lien of this Mortgage pursuant to the terms hereof, a court or other
governmental authority having jurisdiction at any time shall determine that this
Mortgage falls within the ambit of Section 256 of the Tax Law of the State of
New York, then Mortgagee reserves the right, in its sole and absolute
discretion, to elect not to have such additional sums secured by this Mortgage
and thereby reduce the indebtedness secured hereby to a definite amount equal to
the principal amount of the Note, interest thereon at the rate provided in the
Note, plus any disbursements made to protect the security of this Mortgage, with
annual interest on such disbursements at the rate applicable to overdue payments
under the Note (or the highest rate permitted by law, whichever shall be less),
plus any such other sums as by statute or judicial interpretation now or
hereafter may be permitted to be secured by the lien of a mortgage without
incurring any additional mortgage recording tax. Any election by Mortgagee to so
reduce the indebtedness secured hereby shall in no event be deemed a release,
waiver or discharge by Mortgagee of Mortgagor's obligation to pay or reimburse
Mortgagee for such sums and such obligation shall continue unimpaired and shall
be recourse obligations of Mortgagor and any Guarantor of the indebtedness
secured hereby, regardless of any other provisions set forth herein or in the
Note or in any such guaranty that may limit recourse against Mortgagor or anyone
else. It is further understood and agreed that any sums, including, without
limitation, any prepayment penalties, late charges or liquidated damages, that
may become due and payable pursuant to the terms of the Note and/or this
Mortgage and that are in the nature of interest shall, for the purpose of
determining the amount of mortgage recording tax due and payable on this
Mortgage, be considered as additional interest, whether or not so denominated,
and such sums shall be secured by the lien of this Mortgage to the fullest
extent possible without causing this Mortgage to be covered by Section 256 of
the New York Tax Law, and shall not be deemed principal and shall not accrue any
interest thereon.
19. CONDEMNATION AWARDS. The Mortgagor does hereby assign to the
Mortgagee any awards heretofore made and hereafter to be made by any state,
county or local authorities to the owner of the mortgaged premises, as a result
of condemnation of all or any portion of said mortgaged premises or of the use
thereof and the said Mortgagee, at its option, is hereby authorized to collect
and receive the proceeds of any such awards from the
18
authorities making the same and to give proper receipts and acquittances
therefor, and to apply the same to reduction of installments due to the
mortgagee, in the inverse order of their maturity, notwithstanding the fact that
no installment on account of this Mortgage may then be due and payable; and the
Mortgagor, upon request by the Mortgagee, will make, execute and deliver any and
all assignments and other instruments sufficient for the purpose of assigning
the aforesaid awards to the Mortgagee, free, clear and discharged of any and all
encumbrances of any kind or nature whatsoever.
20. LATE FEES. If the entire amount of any payment is not paid in full
within ten (10) days after the same is due, Mortgagor shall pay to the Mortgagee
a late fee equal to five percent (5%) of the required payment and such late fees
are also secured by this Mortgage.
21. SECURITY FOR OTHER INDEBTEDNESS: In addition to the Note referred to
on Page 1 of this Mortgage, this Mortgage is intended to secure any and all
liabilities, obligations and further loans or indebtedness owed or to be owed by
the Mortgagor to the Mortgagee, whether direct and/or indirect, contingent
and/or noncontingent and/or liquidated or unliquidated, and it is stipulated
that the maximum amount secured by this Mortgage at execution or which under any
contingency may be secured thereby at any time in the future shall be the
original principal amount hereof. The obligation of the Mortgagee to make
further or future advances or readvances shall be optional with the Mortgagee.
Readvances may be made under the provisions hereof to the present or to any
future owner of the mortgaged premises. However, in no event shall this Mortgage
secure any transaction with respect to which the Mortgagor shall be entitled to
notice of a right to rescind pursuant to the Federal Truth and Lending Act and
Regulation Z thereunder, unless said notice has been given.
22. NO ORAL MODIFICATION. The provisions of this instrument cannot be
changed, modified or discharged unless such change, modification or discharge is
in writing and signed by the party against whom enforcement of such change,
modification or discharge is sought, or by its agent thereunto duly authorized
in writing.
23. MISCELLANEOUS. This Mortgage and all agreements and covenants
contained herein shall bind the executors, administrators, successors and
assigns of the Mortgagor and inure to the benefit of the successors and assigns
of the Mortgagee, with like effect as if named herein. If more than one person
or entity joins in the execution of this Mortgage, the covenants and agreements
hereof shall be their joint and several obligations, and if any be masculine or
feminine or under any assumed business name, the relative words herein shall be
read as if written in the plural or in the masculine, feminine or neuter gender,
as the case may be, and the words "Mortgagor" and "Mortgagee" where used herein
shall be construed to include their and each of their , executors,
administrators, successors and assigns. Captions used herein are for convenience
only and shall not affect the interpretation of any provisions herein.
19
24. NOTICES. Any notice, demand or request pursuant to this Mortgage
shall, at the option of the party so giving the notice, demand or request, be
(a) sent overnight via Federal Express or other substantial national delivery
service, or (b) delivered personally, or (c) sent via Led Foot Express or other
substantial delivery service, return receipt requested, or (d) sent via
certified mail, return receipt requested, and, in each case, addressed as set
forth on page 1 of this Mortgage (adding, in the case of the Mortgagee's
address, "Attention: Commercial Loan Department"). Notice shall be deemed to
have been given on the date of personal delivery or if given by overnight
service or regional delivery service or by certified mail on the date of receipt
as indicated by the records of the overnight or regional delivery service, or
the U.S. Postal Service as the case may be. Any change of address shall be
effective if sent in accordance with this paragraph. Failure of the Mortgagor to
provide notice of a change in address within thirty (30) days of said change
shall constitute an event of default hereunder.
Mortgagor: Decora Incorporated
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Mortgagee: Fleet Bank of New York
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
25. CORRECTIVE DOCUMENTS. Upon receipt of an affidavit of an officer of
Mortgagee as to the loss, theft, destruction or mutilation of the Note or any
other security document which is not of public record, and, in the case of any
such loss, theft, destruction or mutilation, upon surrender and cancellation of
such Note or other security document, Borrower will issue, in lieu thereof, a
replacement Note or other security document in the same principal amount thereof
and otherwise of like tenor.
26. NO RELIANCE ON MORTGAGEE. Mortgagor affirms that it is not relying
on the fact that the Mortgagee has extended this Mortgage or loan as evidence of
good condition and/or good title of the mortgaged premises.
27. INVALID PROVISION. If any provision hereof would be invalid under
applicable law, then such provision shall be deemed to be modified to the extent
necessary to render it valid while most nearly preserving its original intent;
no provision hereof shall be affected by another provision being held invalid.
28. NO WAIVER. No failure by Mortgagee to exercise, and no delay in
exercising, and no course of dealing with respect to, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any
20
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any other remedies
provided by law.
29. CHOICE OF LAW. This Mortgage is being executed and delivered in the
State of New York and shall be construed and enforced in accordance with the
laws of the State of New York.
30. JURISDICTION. The Mortgagor consents to the jurisdiction of the
courts of the State of New York which courts shall be the sole and exclusive
forum.
31. APPRAISALS. Upon request of the Mortgagee, which request shall be
made not more than once in any twelve (12) month period during the term hereof,
the Mortgagor agrees to provide at its sole cost and expense updated appraisals
covering the mortgaged premises, in form satisfactory to the Mortgagee and
completed by an appraiser satisfactory to the Mortgagee. At the sole option of
the Mortgagee, the Mortgagee may procure said appraisal(s) and pay the cost
therefor, and in such event, the Mortgagor will on demand pay to the Mortgagee
such costs so paid and the same shall be deemed to be secured by this Mortgage
and shall be collectible thereupon in like manner as the principal monies.
32. TAX SEARCH FEE: Upon the request of the Mortgagee, the Mortgagor
shall pay to Mortgagee such fees as may be charged by others to monitor the
payment of taxes assessed against the mortgaged premises, and upon the failure
of the Mortgagor to promptly remit such fees to the Mortgagee, such fees may be
paid by the Mortgagee and shall be secured by the lien of this Mortgage.
33. MORTGAGEE'S RIGHT TO INSPECT THE MORTGAGED PREMISES. Mortgagee, and
others authorized by Mortgagee, may enter on and inspect the mortgaged premises
at reasonable times and in a reasonable manner. Before or at the time any such
inspection is made, Mortgagee shall give the Mortgagor a notice stating a
reasonable purpose for the inspection.
34. SETOFF RIGHTS. Mortgagor and each Guarantor hereby grant to the
Mortgagee a lien, security interest and right of setoff as security for all
liabilities and obligations of Mortgagor to the Mortgagee, whether now existing
or hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
the Mortgagee or any entity under the control of Fleet Financial Group, Inc., or
in transit to any one of them. Upon default at any time, without demand or
notice, the Mortgagee may set off the same or any part thereof and apply the
same to any liability or obligation of Mortgagor or the Guarantor even though
unmatured and regardless of the adequacy or any other collateral securing the
Note. ANY AND ALL RIGHTS TO REQUIRE THE MORTGAGEE TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
21
NOTE, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS,
CREDITS OR OTHER PROPERTY OF THE MORTGAGOR AND ITS GUARANTORS ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
35. WAIVER OF TRIAL BY JURY. MORTGAGOR AND THE MORTGAGEE MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THE NOTE, THIS MORTGAGE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED
IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY TO THE FULLEST EXTENT
ALLOWED BY LAW. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE MORTGAGEE
TO ACCEPT THIS MORTGAGE AND MAKE THE LOAN.
36. PLEDGING OF RIGHTS. Mortgagee may at any time pledge all or any
portion of its rights under the loan documents including any portion of the Note
to any of the twelve (12) Federal Reserve Banks organized under section 4 of the
Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or enforcement
thereof shall release Mortgagor from its obligations under any of the loan
documents.
37. MODIFIED FOLLOWING BUSINESS DAY CONVENTION. The Modified Following
Business Day Convention shall mean the convention for adjusting any relevant
date if it would otherwise fall on a day that is not a Business Day. The
following terms, when used in conjunction with the term, "Modified Following
Business Day Convention," and a date, shall mean that an adjustment will be made
if that date would otherwise fall on a day that is not a Business Day so that
the date will be the first following day that is a Business Day.
A "Business Day" means, in respect of any date that is specified in this
Agreement to be subject to adjustment in accordance with applicable Business Day
Convention, a day on which commercial banks settle payments in New York or
London if the payment obligation is calculated by reference to any (i) LIBOR
Rate, or (ii) New York, if the payment obligation is calculated by reference to
any Prime Rate.
38. PARTICIPATIONS.
The Mortgagee shall have the unrestricted right at any time and from
time to time, and without the consent of or notice to Mortgagee or any Guarantor
to grant to one or more banks or other financial institutions (each, a
"Participant") participating interests in Mortgagee's obligation to lend
hereunder and/or any or all of the loans held by Mortgagee hereunder. In
22
the event of any such grant by Mortgagee of a participating interest to a
Participant, whether or not upon notice to Mortgagor, Mortgagee shall remain
responsible for the performance of its obligations hereunder and Mortgagor shall
continue to deal solely and directly with Mortgagee in connection with
Mortgagee's rights and obligations hereunder.
Mortgagee may furnish any information concerning Mortgagor in its
possession from time to time to prospective Assignees and Participants, provided
that Mortgagee shall require any such prospective Assignee or Participant to
agree in writing to maintain the confidentiality of such information.
IN WITNESS WHEREOF, the Mortgagor has caused this instrument to be
signed the day and year first above written.
DECORA, INCORPORATED d/b/a
DECORA MANUFACTURING
By:________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice
President Finance
FLEET NATIONAL BANK
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____ day of April, 1998, before me personally appeared ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, to me known, who being by me duly sworn, did depose and say that he
resides in ▇▇▇▇▇▇▇ Park, New York, that he is the Vice President, Finance of
DECORA, INCORPORATED d/b/a DECORA MANUFACTURING, the corporation described in
and which executed the above instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____th day of April, 1998, before me personally appeared ▇▇▇▇▇
▇. ▇▇▇▇▇▇, to me known, who being by me duly sworn, did depose and say that he
resides in Valatie, New York, that he is a Vice President of FLEET NATIONAL
BANK, the corporation described in and which executed the above instrument; and
that he signed his name thereto by order of the Board of Directors of said
corporation.
------------------------------
Notary Public