Exhibit 10.33
Lot: 022.00
Block: 01.00
Section: 0400-268.00
County: Suffolk
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SUFFOLK COUNTY INDUSTRIAL DEVELOPMENT AGENCY
(Mortgagor)
and
MELVILLE BIOLOGICS, INC.
(Company)
to
MILES INC.
(Mortgagee)
---------------------------------------------
MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FILING
---------------------------------------------
Dated: As of February 15, 1995
Property Location: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RECORD AND RETURN TO:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
MADE as of the 15th day of February, 1995, by SUFFOLK COUNTY INDUSTRIAL
DEVELOPMENT AGENCY, a public benefit corporation organized and existing under
the laws of the State of New York, having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Mortgagor") and by MELVILLE
BIOLOGICS, INC., a Delaware corporation (the "Company"), having an address of
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ favor of MILES INC., an Indiana
corporation (along with its successors and assigns, the "Mortgagee"), having an
address of One Mellon Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
WITNESSETH
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WHEREAS, Title 1 of Article 18-A of the General Municipal Law of the State
of New York was duly enacted into law as Chapter 1030 of the Laws of 1969 of the
State of New York (the "State"), as amended, together with Chapter 675 of the
Laws of 1975 of the State, as amended (the "Act"); and
WHEREAS, the Act authorizes the creation of industrial development agencies
for the benefit of the several counties, cities, villages and towns in the State
and to empower such agencies, among other things, to acquire, construct,
reconstruct, lease, improve, maintain, equip and sell land and any building or
other improvement, and all real and personal properties, including, but not
limited to, machinery and equipment deemed necessary in connection therewith,
whether or not now in existence or under construction, which shall be suitable
for manufacturing, warehousing, research, commercial, recreation or industrial
facilities, including industrial pollution control facilities, in order to
advance job opportunities, health, general prosperity and the economic welfare
of the people of the State and to improve their standard of living; and
WHEREAS, ▇▇▇▇▇▇▇▇▇ is the owner in fee simple of a certain tract or parcel
of land situate in the Town of Huntington, Village of Melville, Suffolk County,
State of New York, as more fully described in Exhibit A attached hereto and made
a part hereof, together with the improvements now or hereafter erected thereon,
which land and improvements Mortgagor acquired from the Company simultaneously
herewith; and
WHEREAS, PNC Bank, National Association ("PNC") has made a loan in the
original principal amount of Ten Million Dollars ($10,000,000) to the Company
(the "PNC Loan") pursuant to a Letter Agreement and a Term Note (collectively,
the "PNC Loan Documents"); and
WHEREAS, Mortgagee, as security for the PNC Loan, has granted in favor of
PNC a Guaranty of even date herewith (the "Guaranty"); and
WHEREAS, in consideration of Mortgagee's granting the Guaranty to PNC for
the benefit of the Company, the Company has executed and delivered to Mortgagee
a Reimbursement and Security Agreement of even date herewith as the same may be
amended, modified or replaced from time to time (the "Reimbursement Agreement");
and
WHEREAS, Company is granting this Mortgage to Mortgagee to secure its
obligations under the Reimbursement Agreement; and
WHEREAS, pursuant to and in accordance with the provisions of the Act,
▇▇▇▇▇▇▇▇▇ was created and is empowered under the Act to grant this Mortgage to
Mortgagee; and
WHEREAS, the Company and Mortgagee have entered into an Agreement for
Custom Processing ("Processing Agreement") dated as of February 7, 1995,
pursuant to which ▇▇▇▇▇▇▇▇▇ has agreed to process and fractionate certain
quantities of Miles Input as defined in the Processing Agreement (hereinafter
"Processing and Fractionation Operation"); and
WHEREAS, the Company and Mortgagee have entered into a Lease Agreement (the
"Lease") and a Sublease Agreement (the "Sublease"), each dated as of February 7,
1995 with respect to the Property hereinafter described; and
WHEREAS, ▇▇▇▇▇▇▇▇▇ and the Company have entered into that certain (i) Lease
Agreement (the "▇▇▇ Lease") pursuant to which Mortgagor leases the Property (as
defined below) to the Company and (ii) Payment-In-Lieu-of-Tax Agreement, each
dated as of February 15, 1995.
NOW, THEREFORE, in consideration of Mortgagee's granting the Guaranty and
for the purpose of securing the payment and performance by the Company of the
Obligations as defined in the Reimbursement Agreement, and in furtherance of
Mortgagor's purposes under the Act, Mortgagor and the Company, intending to be
legally bound hereby, do hereby give, grant, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, mortgage, hypothecate, deposit,
pledge, set over and confirm unto Mortgagee and do agree that Mortgagee shall
have a security interest in the following described property, all accessions and
additions thereto, all substitutions therefor and replacements and proceeds
thereof, and all revisions and remainders of such property (collectively, the
"Mortgaged Property") now owned or held or hereafter acquired, to wit:
(i) ▇▇▇▇▇▇▇▇▇'s fee simple estate and the Company's ownership
interest and leasehold estate in the premises described in Exhibit A, together
with all of the easements, rights of way, privileges, liberties, hereditaments,
gores, streets, alleys, passages, ways, waters, watercourses, rights and
appurtenances thereunto belonging or appertaining and all of the estate, right,
title, interest, claim and demand whatsoever of Mortgagor and the Company
therein and in the public streets and ways adjacent thereto, either in law or in
equity, in possession or expectancy (collectively, the "Realty");
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(ii) the structures and buildings, and all additions and
improvements thereto, now or hereafter erected upon the Realty (collectively,
the "Improvements");
(iii) all machinery, apparatus, equipment, fittings, appliances,
building materials (to the extent they are fixtures) and all other fixtures of
every kind and nature whatsoever, and regardless of whether the same may now or
hereafter be attached or affixed to the Realty or Improvements, including,
without limitation, all electrical, antipollution, heating, lighting,
incinerating, power, air conditioning, plumbing, lifting, cleaning, fire
prevention, fire extinguishing, refrigerating, ventilating and communication
machinery, apparatus, equipment, fittings, appliances and fixtures, and all
engines, pipes, pumps, tanks, motors, conduits, ducts, compressors, elevators
and escalators, and all articles of personal property and goods of every kind
and nature whatsoever, now or hereafter affixed to, attached to, placed upon, or
used or usable in any way in connection with the use, enjoyment, occupancy or
operation of the Realty or Improvements to the extent that an interest in any of
the foregoing property arises under applicable real property law (collectively,
the "Equipment") (the Realty, the Improvements and the Equipment are hereinafter
sometimes referred to collectively as the "Property");
(iv) all leases (including but not limited to the Mortgagor's
and the Company's interests as Lessor and Lessee, respectively, under the ▇▇▇
Lease) and other agreements now or hereafter in existence relating to the use,
occupancy or possession of the Property, or any part thereof, and all right,
title and interest of ▇▇▇▇▇▇▇▇▇ and/or the Company thereunder, including cash
and securities deposited thereunder to secure performance by the tenants of
their obligations thereunder, and including further, the right to receive and
collect the rents thereunder and all guaranties thereof (collectively, the
"Leases"). Notwithstanding anything to the contrary herein, ▇▇▇▇▇▇▇▇▇ has
reserved unto itself and has not given, granted, bargained, sold, warranted,
alienated, remitted, released, conveyed, assigned, transferred, mortgaged,
hypothecated, deposited, pledged, set over or confirmed unto Mortgagee nor
granted a security interest to Mortgagee in any right, title, interest in, to or
under the ▇▇▇ Lease with respect to payments or reimbursements of whatever kind
to be made to Mortgagor, liability insurance for the benefit of Mortgagor,
indemnifications of or running to Mortgagor, obligations by the Company running
to Mortgagor for performance of Mortgagor's obligations, or the rights of
Mortgagor to declare Events of Default thereunder or to take any action to
enforce any of its rights or remedies under the ▇▇▇ Lease, all of which shall be
considered personal to Mortgagor (the "Retained Rights"), and such Retained
Rights shall continue to be the duties, obligations and liabilities of the
Company and shall not be construed as to impose any duties or obligations on or
be liabilities of Mortgagee or Mortgagee's interest in the Mortgaged Property;
(v) all revenues, income, rents, issues and profits of the
Property (collectively, the "Rents") including all proceeds of the conversion,
voluntary or involuntary, of the Property, or any part thereof, into cash or
liquidated claims, including proceeds of insurance and condemnation awards;
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(vi) all Mortgagor's and/or the Company's rights and interests
in all agreements now or hereafter in existence providing for or relating to the
maintenance, operation or management of the Property or any part thereof, and
any amendments, renewals and replacements thereof; to the extent permitted by
the relevant authorities, all licenses, permits and approvals for the ownership,
maintenance, operation, use and occupancy of the Property, or any part thereof
and any amendments, renewals and replacements thereof; all Mortgagor's and/or
the Company's rights and interests in all warranties and guaranties from
contractors, subcontractors, suppliers and manufacturers to the maximum extent
permissible relating to the Property or any part thereof; all insurance policies
covering or affecting the Property or any part thereof (collectively, the "Other
Property").
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee, its successors
and assigns, to its own use forever in accordance with the provisions hereof.
PROVIDED ALWAYS, that if all the obligations secured hereby shall be paid
in full, and the Company shall abide by and comply with each and every covenant
contained herein and in the Reimbursement Agreement, then this Mortgage and the
estate hereby granted shall cease, terminate and become void.
Notwithstanding anything contained in this Mortgage or the Reimbursement
Agreement to the contrary, the maximum amount of principal indebtedness secured
by this Mortgage at the time of execution hereof or which under any contingency
may become secured by this Mortgage at any time hereafter is Ten Million Dollars
($10,000,000) plus (a) taxes, charges or assessments which may be imposed by law
upon the Mortgaged Property (as hereinafter defined); (b) premiums on insurance
policies covering the Mortgaged Property; (c) expenses incurred in upholding the
lien of this Mortgage, including, but not limited to (i) the expenses of any
litigation to prosecute or defend the rights and lien created by this Mortgage;
(ii) any amount, cost or charges to which the Mortgagee becomes subrogated, upon
payment, whether under recognized principles of law or equity, or under express
statutory authority and (iii) interest at the rate set forth in the PNC Loan
Documents, provided that (b), (c)(i) and (c)(ii) are advanced by Mortgagee as a
result of an Event of Default by the Company.
AND ▇▇▇▇▇▇▇▇▇ AND THE COMPANY hereby warrant, covenant and agree as follows
(provided that each of Mortgagor and the Company warrants, covenants and agrees
only with respect to the warranties, covenants and agreements of each and not of
the other):
1. Warranty of Title and Authorization.
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(a) The Company warrants that Mortgagor has good and marketable title
to an estate in fee simple absolute in the Realty and Improvements, free and
clear of all liens and encumbrances, except for the Permitted Liens (as
hereinafter defined) and that this Mortgage is a valid and enforceable lien on
the Mortgaged Property subject only
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to those matters set forth in the First American Title Insurance Company of New
York Title Insurance Policy issued under Commitment No. 141-S-6382-AMD dated
November 1, 1994 and redated February 28, 1995, and to such other items to which
Mortgagee may have consented in writing (the "Permitted Liens"). The Company
shall preserve such title as it warrants herein and the validity and priority of
the lien hereof and shall forever warrant and defend the same to Mortgagee
against the claims of all persons and parties whomsoever.
The Company warrants that it has a valid leasehold estate in the Realty
and the Improvements, free and clear of all liens and encumbrances, except for
Permitted Liens.
(b) Mortgagor represents and warrants that (i) it is duly established
and validly existing under the provisions of the Act, (ii) it has full legal
right, power and authority to execute this Mortgage and (iii) this Mortgage has
been duly authorized, executed and delivered by ▇▇▇▇▇▇▇▇▇.
(c) The Company represents and warrants that (i) it is duly organized
and validly existing; (ii) it has full power and lawful authority to execute
this Mortgage and that such execution is in accordance and compliance with all
requirements of law and any agreement to which it is a party or by which it or
its property is bound, and is in furtherance of its purposes; (iii) the PNC Loan
will be used for business purposes; (iv) the Mortgaged Property is not located
in an area identified by the Secretary of Housing and Urban Development having
special flood hazards; and (v) to the best of its knowledge, the Mortgaged
Property is not in an area in which an Indian Nation is making a claim in Court
based on the title of such area being owned by such Nation.
2. Legal Requirements. The Company shall promptly comply with and conform
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to or cause to be complied with and conformed to all present and future laws,
statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules,
regulations and requirements, even if unforeseen or extraordinary, of every duly
constituted governmental authority or agency having jurisdiction over the
Mortgaged Property and all covenants, restrictions and conditions which may be
applicable to Mortgagor and/or the Company or to any of the Mortgaged Property,
or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction of any of the Mortgaged Property
(collectively, the "Legal Requirements"), even if such compliance necessitates
structural changes or improvements or results in interference with the use or
enjoyment of any of the Mortgaged Property; provided, however, that the
Company's failure to so comply shall not constitute an Event of Default
hereunder if such failure would not have a material adverse effect on Mortgagor
and/or the Company or the Mortgaged Property.
3. Impositions. Before interest or penalties are due thereon and otherwise
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before the same shall become delinquent, the Company shall pay and discharge, or
cause to be paid or discharged, all taxes of every kind and nature (including
real and personal property taxes on the Mortgaged Property, income, franchise,
withholding, profits and gross receipts taxes, any tax imposed directly or
indirectly on Mortgagee (but not
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including income taxes) with respect to the Mortgaged Property or this Mortgage,
the value of the equity of Mortgagor and/or the Company therein, or the
indebtedness evidenced by the Reimbursement Agreement), all charges for any
easement or agreement maintained for the benefit of any of the Mortgaged
Property, all general and special assessments, levies, permits, inspection and
license fees, all mortgages and other liens which may be permitted by Mortgagee,
all water and sewer rents and charges, or payments in lieu of such taxes,
assessments or water and sewer rents and charges, and all other charges and
liens whether of a like or different nature, even if unforeseen or
extraordinary, imposed upon or assessed against Mortgagor and/or the Company or
any of the Mortgaged Property or arising in respect of the occupancy, use or
possession thereof; provided, however, that if by law any of the foregoing may
be paid in installments (whether or not interest shall accrue on the unpaid
balance thereof the Company may pay the same in installments (together with
interest accrued on the unpaid balance thereof as the same respectively become
due, before any fine, penalty or cost attaches thereto. The Company shall comply
in all respects with all agreements, mortgages, covenants, and restrictions now
or hereafter affecting the Realty or Improvements; provided, however, that the
Company's failure to so comply shall not constitute an Event of Default
hereunder if such failure would not have a material adverse effect on Mortgagor,
the Company or the Mortgaged Property. The obligations referred to in this
Section are hereinafter collectively referred to as the "Impositions".
If the Company shall fail to timely pay or perform any of the Impositions,
Mortgagee may, after having given twenty (20) days' prior notice to the Company,
pay or perform the same, and add the amount so paid or the cost incurred to the
indebtedness evidenced by the Reimbursement Agreement, and all such amounts
shall on demand be due and payable, together with interest thereon from the date
of such demand at the rate set forth in the PNC Loan Documents.
Nothing in this Section 3 shall require the payment or discharge of any
Imposition so long as the Company shall, after complying with each of the
following conditions, in good faith and at its own expense, contest the same or
the validity thereof by appropriate legal proceedings diligently pursued. Before
commencing any such proceedings, the Company shall: (i) notify Mortgagee in
writing of its intent to do so; (ii) ascertain that such proceedings will
operate to prevent the collection thereof or other realization thereon and the
sale or forfeiture of the Mortgaged Property or any part thereof to satisfy the
same; and (iii) provide security reasonably satisfactory to Mortgagee assuring
the discharge of the Company's obligation under this Section 3 and of any
additional interest, charge, penalty, or expense arising from or incurred as a
result of such contest. Notwithstanding the foregoing, if at any time payment of
any Imposition shall become necessary to prevent a lien foreclosure sale of the
Mortgaged Property or any portion thereof because of nonpayment of such
Imposition, then the Company shall pay the same in sufficient time to prevent
the foreclosure sale.
4. Insurance. The Company shall maintain insurance on the Improvements and
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Equipment in amounts and coverages as required under the Reimbursement
Agreement, and all policies and renewals thereof shall name Mortgagee as
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additional insured or loss payee, as appropriate, and shall provide for no
amendment or termination without fifteen (15) days' prior written notice to
Mortgagee and shall contain a standard New York Lender endorsement. Mortgagee
shall, at its option, apply insurance proceeds to (i) the restoration of the
Improvements and Equipment, or (ii) the reduction of the indebtedness evidenced
by the Reimbursement Agreement.
Notwithstanding the foregoing, in the event an insured loss or damage
occurs, the replacement cost of which is determined by the insurer to be less
than One Hundred Thousand Dollars ($100,000) and there exists no Event of
Default hereunder, then Mortgagee, after deducting its reasonable costs and
expenses (including, without limitation, all adjusters' fees and expenses and
reasonable attorneys' fees and expenses), shall disburse the net insurance
proceeds to the Company, and the Company shall promptly use the same to repair
or replace the Improvements and Equipment, and shall upon completion thereof
deliver to Mortgagee a release of liens as described in Section 4(f) hereof. In
the event an insured loss or damage occurs, the replacement cost of which is
determined by the insurer to exceed One Hundred Thousand Dollars ($100,000), and
there exists no Event of Default hereunder, then Mortgagee, after deducting its
reasonable costs and expenses, as aforesaid, agrees with respect to such insured
loss or damage that the Company will be permitted to apply the net insurance
proceeds to the repair or rebuilding of the Improvements and Equipment in
accordance with the following terms:
(a) the net insurance proceeds shall be deposited in an account at a
bank reasonably acceptable to Mortgagee which shall require the signature of
Mortgagee alone for any disbursement;
(b) the plans, specifications, engineering reports, construction
contracts, subcontracts, and related documents for the repair, restoration, and
replacement work shall have been approved by Mortgagee, which approval shall not
be unreasonably withheld or delayed and which approval may be based on factors
such as whether the work described therein, when completed, would cause the
Improvements and Equipment to be fully repaired, replaced, or restored so that
it will be returned as nearly as possible to the value, character, and condition
that existed immediately prior to the loss or damage so that the Improvements
and Equipment continue to be an architecturally cohesive, integrated,
economically viable commercial real estate project in full compliance with all
Legal Requirements and with the same use as existed immediately prior to such
loss or damage;
(c) the Company shall deliver to Mortgagee its budget of the cost for
such repair, restoration, and replacement, and, prior to the commencement of any
work and from time to time thereafter as the estimated remaining cost may be
revised, the Company must deposit in the account into which the net insurance
proceeds were deposited pursuant to Section 4(a) above a sum equal to the amount
by which the estimated remaining cost of such repair, restoration, and
replacement work exceeds the balance of that account, if at all;
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(d) the Company and Mortgagee shall cooperate to jointly determine the
amount necessary to complete such repair, restoration, and replacement work;
provided, however, if the parties are unable to agree, Mortgagee's reasonable
determination shall prevail. Any funds disbursed by Mortgagee through the
account shall be in accordance with normal and usual construction loan draw
procedures;
(e) after approval of the plans and specifications, the Company must
begin work promptly and thereafter diligently prosecute construction in order to
complete all work within such reasonable time frame as may be prescribed by
Mortgagee; provided, however, if such construction is delayed by acts of God or
other forces beyond the control of the Company, the time for completion shall be
extended accordingly;
(f) a full and final release of liens with respect to all repair,
restoration, or replacement work is delivered to Mortgagee from all contractors,
materialmen, and subcontractors and/or partial releases of liens with respect to
all sums advanced from such account;
(g) upon the satisfaction of all of the foregoing conditions, any
excess funds and/or accrued interest in such savings account shall be disbursed
to the Company; and
(h) during any construction, repair, restoration, or replacement of any
Improvements, the Company shall obtain and keep in effect a standard builder's
risk insurance policy with extended coverage for the replacement cost of the
Improvements, with a noncontributing mortgagee clause and nonsurrender,
noncancellation, nonmodification clause, and such insurance shall be written in
such manner and by such companies as are approved by Mortgagee, which approval
shall not be unreasonably withheld or delayed. During any construction, repair,
restoration, or replacement of any Improvements, the Company shall cause all
contractors and subcontractors (including Mortgagor or the company if either
acts as a contractor) to obtain and keep in effect workers' compensation
insurance to the full extent required by applicable laws. Such workers'
compensation insurance shall also cover all employees of each contractor and
subcontractor. Upon demand, the Company shall provide evidence satisfactory to
Mortgagee that the Company is complying with the requirements of this Section
4(h).
5. Maintenance and Impairment of Security. The Company shall keep or
--------------------------------------
cause to be kept the Property in good condition and order and in a tenantable
state of repair and will make or cause to be made, as and when necessary, all
repairs, renewals, and replacements, structural and nonstructural, exterior and
interior, foreseen and unforeseen, ordinary and extraordinary. Mortgagor and the
Company shall not, except in the ordinary course of business, and except for the
Project (as defined in the Processing Agreement) remove, demolish or materially
alter the Property or any buildings or Improvements constituting a part thereof,
without Mortgagee's prior written consent, which consent shall not be
unreasonably withheld or delayed, nor commit or suffer waste with respect
thereto, nor permit the Property to become abandoned. Mortgagor and the Company
shall permit
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Mortgagee and its agents at any reasonable time, and from time to time, after
Mortgagee's having given telephonic or written notice to the Company of its
intent to do so, to enter upon and visit the Property for the purpose of
inspecting and appraising the same; provided, however, Mortgagee shall not
unreasonably interfere with the Company's use of the Property and Mortgagee
shall be liable for any damage to the Property or injury to any person caused by
Mortgagee or its agents. The Company covenants and agrees not to take or permit
any action with respect to the Property which will in any manner impair the
security of this Mortgage.
6. Condemnation. If all or any part of the Mortgaged Property shall be
------------
damaged or taken through condemnation (which term when used in this Mortgage
shall include any damage or taking by any governmental agency and any transfer
by private sale in lieu thereof), either temporarily or permanently, the
proceeds of any award or claim for damages, direct or indirect, in connection
therewith, are hereby assigned and shall be paid to Mortgagee, and Mortgagee, at
its option shall apply such proceeds (i) to restoration of the Mortgaged
Property, or (ii) to the reduction of the Obligations.
Notwithstanding the foregoing, if no Event of Default exists hereunder,
the Company will be permitted to apply the net condemnation proceeds to the
repair or rebuilding of the Mortgaged Property in accordance with the provisions
of Section 4 hereof.
7. Limitation on Transfers or Encumbrances.
---------------------------------------
(a) Neither Mortgagor nor the Company shall not transfer, pledge,
lease or otherwise encumber the Mortgaged Property nor permit the creation of
any lien, claim or restriction upon the Mortgaged Property, without Mortgagee's
prior, written consent.
(b) Notwithstanding the foregoing, solely in the event the Company
obtains Qualified Financing from any independent lender, lenders, financial
institution or institutions at any time or from time to time, Mortgagee agrees
to, and does hereby, subordinate the priority of its lien in the Mortgaged
Property (but not the right of payment) to the extent set forth below and to the
extent necessary to permit the Company to obtain such additional Qualified
Financing. As used in this Section 7, "Qualified Financing" means debt
financing, or with respect to the Mortgaged Property that is or will be used
exclusively in the MBI General Operations (as defined in the Reimbursement
Agreement) and not in the Processing and Fractionation Operation, purchase
money, lease, sale/leaseback or lease/leaseback financing, provided by a party
not directly or indirectly affiliated with New York Blood Center, Inc. or the
Company (a "Qualified Financing Lender") to be used by the Company in the
Processing and Fractionation Operation or in the MBI General Operations, and not
for any other use or purpose, in an amount up to Ten Million Dollars
($10,000,000) plus (i) an amount equal to the amount (if any) by which Five
Million Dollars ($5,000,000) exceeds the aggregate principal amount then
outstanding or available under the PNC Loan Documents and (ii) an unlimited
amount from and after the date of payment or prepayment in
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full of all amounts outstanding or available under the PNC Loan Documents,
including principal, interest, penalties and all other charges, in accordance
with the terms and conditions of the PNC Loan Documents (either such amount
being referred to herein as the "Excess Amount"); provided, however, that in no
event shall the amount of the Qualified Financing to which any portion of
Mortgagee's lien priority in the Mortgaged Property may be subordinated exceed
Fifteen Million Dollars ($15,000,000) so long as Mortgagee has or may have any
liability under the Guaranty. Notwithstanding the foregoing, (i) the provisions
of this Section 7(b) shall not apply to the Fractionation Business Collateral,
(ii) at all times the Collateral (as that term is defined in the Reimbursement
Agreement) together with the Mortgaged Property in which Mortgagee shall have a
first lien priority must have a fair market value (as of the date of the
Reimbursement Agreement and as of the effective date of any subordination under
this Section 7) of not less than Five Million Dollars ($5,000,000) ("Minimum
Collateral Value"), and (iii) with respect to the Mortgaged Property, Mortgagee
shall retain a first mortgage lien securing an amount equal to a portion of the
Minimum Collateral Value, to be mutually determined by the parties ("Minimum
First Mortgage Amount"), and an additional mortgage lien in the maximum amount
of Ten Million Dollars ($10,000,000) less the Minimum First Mortgage Amount,
that is second in lien priority only to a mortgage in favor of the Qualified
Financing Lender. As used in this Section 7, "Fractionation Business Collateral"
means all Collateral, including, without limitation, the Licenses and Permits,
Fractionation Contracts, Equipment and Inventory, (as these terms are defined in
the Reimbursement Agreement) used solely or to be used solely in the Processing
and Fractionation Operation such that Mortgagee shall always retain a first lien
priority on all property or rights of Mortgagor and the Company necessary or
appropriate in effectuating a Miles' Takeover under the Processing Agreement (as
defined therein); provided, however, that with respect to the Mortgaged
Property, (i) if the Company is able and desires in its sole and absolute
discretion to separate, the Company may separate, as a condominium or otherwise,
the premises on which the Processing and Fractionation Operation is conducted
from the real estate on which the Company conducts all other operations, (ii)
Mortgagee shall at all times retain a first mortgage lien on that portion of the
Mortgaged Property which separated out and devoted to the Processing and
Fractionation Operation, and (iii) Mortgagee shall release the lien of this
Mortgage from the remainder of the Mortgaged Property. In order for this
subordination to become effective, (a) Mortgagor and the Company must not be in
default under this Mortgage, and the Company must not be in default under the
Processing Agreement, the Reimbursement Agreement, the Lease or the Sublease,
(b) the Company must have obtained the Qualified Financing and (c) the Company
and Mortgagee must agree in writing to (i) the specific property and fair market
value of such property constituting the Fractionation Business Collateral, and
(ii) the Minimum First Mortgage Amount. The Company agrees to bear the cost and
expense of any appraisal or other independent services deemed necessary or
appropriate by Mortgagee to make such determinations. Notwithstanding any of the
foregoing, in the event any of Mortgagee's liens are subordinated to liens in
favor of any Qualified Financing Lender, nothing contained in this Section 7 or
elsewhere shall preclude, prevent, impair or impede Mortgagee's rights and
remedies to receive any payments from the Company or to enforce the Company's
obligations under this Mortgage or any obligations under the Processing
Agreement, the Reimbursement Agreement, the Lease or the Sublease. Mortgagee
agrees to execute and
-10-
deliver any additional document or documents reasonably requested by any
Qualified Financing Lender upon such terms and conditions as are consistent with
this Section 7 and otherwise reasonably satisfactory to Mortgagee.
8. Compliance With Environmental Requirements.
------------------------------------------
(a) Except as specifically set forth in the materials listed on
Exhibit "E" to the Reimbursement Agreement, the Company hereby represents and
warrants to the Mortgagee that there are no hazardous materials presently
located on the Mortgaged Property which, under federal, state, or local law,
statute, ordinance or regulation; or court or administrative order or decree; or
private agreement (collectively, "Environmental Requirements"), require special
handling in collection, storage, treatment, or disposal and that the Company and
Mortgagor will not place and the Company will not permit to be placed any such
materials on the Mortgaged Property in violation of any applicable Environmental
Requirement.
(b) The Company hereby covenants and agrees that, if at any time it is
determined that there are materials located on the Property which, under any
Environmental Requirement require special handling in collection, storage,
treatment, or disposal, the Company shall, within thirty (30) days after written
notice thereof, take or cause to be taken, at its sole expense, such actions as
may be necessary to comply with all Environmental Requirements.
(c) Mortgagor and the Company agree that Mortgagee and its authorized
representatives may, after providing to the Company notice and the opportunity
to provide additional information, enter and inspect and assess the Property and
conduct tests (including soil test borings or other invasive tests) at
reasonable times as Mortgagee reasonably deems necessary to determine
▇▇▇▇▇▇▇▇▇'s and the Company's compliance with the above conditions; provided,
however, that Mortgagee shall schedule the same so as not to unreasonably
interfere with the Company's operations on the Property. The cost of performing
such inspections and assessments shall be paid by the Company upon demand by
Mortgagee and any such cost shall constitute an Obligation secured by this
Mortgage.
(d) The Company shall defend, indemnify and hold Mortgagee harmless
from and against any and all past, present and future liability, loss, damage,
costs and expenses suffered, incurred or threatened as a result of any Event of
Default hereunder or as a result of notice, complaint, claim, demand, suit,
order, judgment, or any legal requirement, including without limitation of the
generality of the foregoing, court costs, attorneys' and consultants' fees,
environmental cleanup costs, natural resources damages, fines, penalties and
damages to persons, personal property, real property and business enterprises,
arising out of or relating to the environmental condition of the Property, the
existence of any environmental hazard on the Property or any release or threat
of release of any hazardous substance of any kind in, on, under or from the
Property at any time, except to the extent caused by the gross negligence or
willful misconduct of Mortgagee.
-11-
Notwithstanding anything to the contrary in this Mortgage, the provisions of
this indemnity shall survive the payment and satisfaction or termination of this
Mortgage.
9. Recordation.
-----------
(a) Mortgagor forthwith upon the execution and delivery of this
Mortgage shall cause this Mortgage to be recorded in such manner and in such
place as may be required by law in order to publish notice of and fully to
protect the lien hereof upon and the interest of Mortgagee in the Mortgaged
Property. Mortgagor and the Company forthwith upon the execution and delivery of
this Mortgage and thereafter from time to time, shall cause any security
instrument creating the lien or evidencing the lien hereof upon Mortgaged
Property and each instrument of further assurance to be filed, registered or
recorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the lien hereof
upon, and the interest of Mortgagee in, the Mortgaged Property.
(b) The Company shall pay all filing, registration and recording fees
and taxes, and all expenses incident to the preparation, execution and
acknowledgment of this Mortgage, any security instrument with respect to the
Improvements and Equipment and any instrument of further assurance and all
federal, state, county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution and delivery of and all instruments or documents executed in
connection therewith or any security instrument with respect to the Improvements
and Equipment or any instrument of further assurance.
10. Further Assurances and Covenants. The Company, at its cost, and without
--------------------------------
expense to Mortgagee shall:
(a) within fifteen (15) days after receipt of a request therefor from
Mortgagee, deliver to Mortgagee a written statement, duly acknowledged, setting
forth the outstanding amount due under the PNC Loan, and offsets or defenses, if
any, which the Company has under the PNC Loan Documents;
(b) execute such further documents and provide such further
assurances as may be reasonably desirable by Mortgagee for the purposes of
further evidencing, carrying out and/or confirming this Mortgage and for all
other purposes intended by this Mortgage;
(c) with respect to any mortgage(s) held by a Qualified Financing
Lender (the "Additional Mortgages"):
-12-
(i) fully, completely and strictly comply with the material
terms, conditions, covenants and agreements contained in the Additional
Mortgages or contained in any other document or agreement secured by or in any
way relating thereto;
(ii) promptly pay on a current basis, without extra interest,
late charge or penalty, each and every installment or other payment which the
Company is obligated to make under any note or debt instrument secured by the
Additional Mortgages;
(iii) not commit any act, nor refrain from doing any required
act, nor suffer any act or omission to occur, which would or could, whether
immediately or by passage of time, result in a default occurring under the
Additional Mortgages or under any other document or agreement secured or in any
way relating thereto, and, if the same shall occur, the Company shall
immediately act to fully and completely cure and remedy same;
(iv) not request or accept any future advance or loans from a
holder of any of the Additional Mortgages if the same is, or could arguably be
construed as being, secured by such Additional Mortgage, unless the amount
thereof is within the limitations set forth in Section 7 hereof;
(v) unless copies are provided to Mortgagee by a Qualified
Financing Lender, immediately provide Mortgagee written notice of any notices
received by the Company (whether such notices be given orally or in writing, but
if the same shall be in writing, such notice from the Company to Mortgagee shall
include a copy thereof) from the holder of any Additional Mortgage in which such
holder (a) alleges that the Company is in default under such Additional
Mortgage, or (b) alleges that circumstances exist that, with the passage of
time, will result in a default under such Additional Mortgage, or (c) notifies
the Company of rights and/or remedies which holder alleges that it intends to
invoke or is invoking under such Additional Mortgage or under any other
documents or agreements secured by or in any way relating thereto;
(vi) agree that Mortgagee shall have the right, if it so elects,
(but shall have no obligation) to make payments on the Company's behalf to any
holder of an Additional Mortgage and/or to perform any and all other obligations
of the Company under such Additional Mortgage, and, if Mortgagee does so, the
amount of any such payment and/or the cost to Mortgagee of performing any such
other obligation shall become a part of the Obligations, provided no such
payment made or cost incurred by shall be considered a waiver or release of any
remedy Mortgagee may have against the Company; and
-13-
(vii) At Mortgagee's option, the entire principal sum secured by
this Mortgage and all interest thereon shall become due and payable upon the
occurrence of a default under any Additional Mortgage continuing uncured after
the expiration of any applicable cure period.
11. Events of Default. The occurrence of any one or more of the following
-----------------
events shall constitute an "Event of Default" hereunder:
(a) an Event of Default under the Processing Agreement has occurred
and is continuing;
(b) any representation or warranty of the Company contained in this
Mortgage shall be materially false;
(c) a failure by the Company to duly perform and observe any
provision in this Mortgage and the same shall remain uncured thirty (30) days
after receipt by the Company of notice thereof; provided, however, if such
matter cannot reasonably be cured within thirty (30) days, the Company shall not
be in default hereunder so long as the Company has commenced the cure within
such thirty (30) day period and is diligently pursuing the same to completion;
or
(d) the expiration of thirty (30) days from the passage of any law
deducting from the value of the Mortgaged Property for the purpose of taxation,
any lien thereon or changing in any way the taxation of mortgages or debts
secured thereby so as to impose a tax on this Mortgage or the Reimbursement
Agreement, unless such tax can be and is timely paid by the Company.
12. Remedies. In the event of an Event of Default, Mortgagee may, to the
--------
extent permitted by law, at its option, without demand, notice or delay, do one
or more of the following:
(a) exercise any right or remedy provided in the Reimbursement
Agreement, the Processing Agreement, the Lease or the Sublease. In the event
that the Sublease terminates as the result of a Miles Takeover under the
Processing Agreement, the Company, Mortgagor and Mortgagee specifically agree
that, as part of the rights granted to Mortgagee under this Mortgage, Mortgagee
has the rights with respect to a Miles Takeover set forth in the Lease, the
Reimbursement Agreement and the Processing Agreement; and
(b) institute and maintain an action of mortgage foreclosure against
the Mortgaged Property and the interest of Mortgagor and the Company therein;
and take such other action at law or in equity as the law may allow, and in each
such action Mortgagee shall be entitled to all costs of suit and reasonable
attorneys' fees. Mortgagee, in any such foreclosure action, shall be entitled to
appointment of a receiver; and
-14-
(c) without releasing the Company from any obligation and without waiving
any Event of Default: (i) collect any or all of the Rents, including any Rents
past due and unpaid, (ii) perform any obligation or exercise any right or remedy
of Mortgagor or the Company under any Lease, or (iii) enforce any obligation of
any tenant of any of the Property. Mortgagee shall not be obligated to do any of
the foregoing, even if Mortgagee may have theretofore performed obligations or
exercised remedies of Mortgagor or the Company or enforced obligations of
tenants. Mortgagee may exercise any right under this subsection whether or not
Mortgagee shall have entered into possession of any of the Property, and nothing
herein contained shall be construed as constituting Mortgagee a "Mortgagee in
possession", unless Mortgagee shall have entered into and shall continue to be
in actual possession of the Property. ▇▇▇▇▇▇▇▇▇ and the Company hereby authorize
and direct each and every present and future tenant of any of the Property to
pay all Rents directly to Mortgagee and to perform all other obligations of that
tenant for the direct benefit of Mortgagee, as if Mortgagee were the landlord
under the Lease with that tenant, immediately upon receipt of a demand by
Mortgagee to make such payment or perform such obligations. No tenant shall have
any responsibility to ascertain whether such demand is permitted hereunder or
whether an Event of Default shall have occurred; ▇▇▇▇▇▇▇▇▇ and the Company
hereby waive any right, claim or demand each may now or hereafter have against
any such tenant by reason of such payment of Rents or performance of obligations
to Mortgagee; and any such payment or performance to Mortgagee shall discharge
the obligations of the tenant to make such payment or performance to Mortgagor
and the Company. The Company shall indemnify Mortgagee and hold Mortgagee
harmless from and against any and all, claims, liability, damage, cost and
expense (including reasonable attorneys' fees) which may be asserted against or
incurred by Mortgagee by reason of any alleged failure by ▇▇▇▇▇▇▇▇▇ or the
Company of its obligations to perform any provision of any Lease prior to
Mortgagee's foreclosure. After deduction of all costs and expenses incurred in
the operation and management of the Property and in the collection of the Rents
(including attorneys' fees, administration expenses, management fees and
brokers' commissions), Mortgagee may apply the Rents received by Mortgagee to
the payment of any or all of the following, in such order and amounts as
Mortgagee, in its sole discretion, may elect, whether or not the same be then
due: liens on any of the Property, Impositions, claims, insurance premiums,
other carrying charges, invoices of persons who have supplied goods or services
to or for the benefit of any of the Property, costs and expenses of maintenance,
repair, restoration, alteration or improvement of any of the Property. Mortgagee
may, in its sole discretion, determine the method by which, and extent to which,
the Rents will be collected and obligations of tenants enforced; and Mortgagee
may waive or fail to perform or enforce any provision of any Lease. Mortgagee
shall not be accountable for any Rents or other sums it does not actually
receive. Each of Mortgagor and the Company hereby appoints Mortgagee as its
attorney-in-fact effective upon an Event of Default to perform all acts which
Mortgagor and the Company are required or permitted to perform under any and all
Leases. Notwithstanding the foregoing provisions pertaining to Rents and Leases
or any other such provision contained in this Mortgage, it is understood and
agreed that the Company will, during the term of this Mortgage, occupy and
operate the Property directly and will not enter into any Lease (except for the
Lease, the Sublease, and the ▇▇▇ Lease) or other agreement giving any right to
the Property or any interest therein to
-15-
any third party whatsoever, without the prior written consent of Mortgagee,
which consent shall not be unreasonably withheld; and
(d) Mortgagee may, without releasing the Company from any obligation
under the Reimbursement Agreement and without waiving any Event of Default,
enter upon and take possession of the Property or any portion thereof, with or
without legal action and by force if necessary, or have a receiver appointed
without proof of depreciation or inadequacy of the value of the Property or
other security or proof of the insolvency of the Company. Mortgagee or said
receiver may manage and operate the Property; make, cancel, enforce or modify
the Leases or any of them; obtain and evict tenants; establish or change the
amount of any Rents; and perform any acts and advance any sums which Mortgagee
deems proper to protect the security of this Mortgage, all such sums to be
payable on demand, together with interest thereon, from the date of such demand,
and such sums and interest to be secured by this Mortgage; and
(e) Mortgagee may take possession of the Equipment and the Other
Property, or any portion thereof, and may use and deal with the same to the same
extent as Mortgagor or the Company is entitled to do so and may sell the same
pursuant to law and exercise such other rights and remedies with respect to the
same as may be provided by law, and file such continuation statements which it
deems desirable.
All remedies contained in this Mortgage are cumulative and Mortgagee also
has all other remedies provided by law or in equity. No delay or failure by
Mortgagee to exercise any right or remedy under this Mortgage will be construed
to be a waiver of that right or remedy or a waiver of any Event of Default.
Mortgagee may exercise any one or more of its rights and remedies without regard
to the adequacy of its security.
If any action or proceeding be commenced (except an action to foreclose
this Mortgage or to collect the debt secured hereby), to which action or
proceeding Mortgagee is made a party, or in which it becomes necessary to defend
or uphold the lien of this Mortgage, all reasonable sums paid by Mortgagee for
the expense of any litigation to prosecute or defend the rights and lien created
by this Mortgage (including reasonable attorneys' fees), shall be paid by the
Company, together with interest thereon at the rate set forth in the PNC Loan
Documents and any such sum and the interest thereon shall be a lien on the
Mortgaged Property, prior to any right, or title to, interest in or claim upon
the Mortgaged Property attaching or accruing subsequent to the lien of this
Mortgage, and shall be deemed to be secured by this Mortgage. In any action or
proceeding to foreclose this Mortgage, or to recover or collect the debt secured
thereby, the provisions of law respecting the recovering of costs, disbursements
and allowances shall prevail unaffected by this covenant.
-16-
13. Mortgagee's Right to Protect Security. Mortgagee is hereby authorized
-------------------------------------
to do any one or more of the following irrespective of whether an Event of
Default has occurred: (a) appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Mortgagee
hereunder; (b) after having given twenty (20) days' notice to the Company,
except in case of emergency, in which case no notice shall be required, take
such action as Mortgagee may determine to pay, perform or comply with any
Impositions or Legal Requirements, to cure any Events of Default and to protect
its security in the Mortgaged Property, advance sums on behalf of the Company to
pay, perform or comply with any Imposition, Legal Requirement, prohibited lien,
claims, costs and expenses in connection with the Mortgaged Property, including
payment for utilities, fuel or any other necessary maintenance expenses, fees,
insurance and repairs; and for the purpose of exercising any such powers
Mortgagee is hereby appointed attorney-in-fact for Mortgagor and is authorized
to pay or advance sums to meet necessary expenses and costs of repair, employ
counsel and pay reasonable attorneys' fees. All sums paid by or otherwise owing
to Mortgagee under this Mortgage shall be paid by the Company to Mortgagee on
demand, and until paid such sums shall be added to the principal secured hereby,
shall be included as part of the amounts due pursuant to the Reimbursement
Agreement and shall bear interest from the date of demand at the rate set forth
in the PNC Loan Documents.
14. Security Agreement Under Uniform Commercial Code. This Mortgage is a
------------------------------------------------
Security Agreement and a Fixture Filing as defined in the Uniform Commercial
Code of the State of New York. Notwithstanding any filing of a financing
statement covering any of the Mortgaged Property in the records normally
pertaining to personal property, at Mortgagee's option all of the Mortgaged
Property, for all purposes and in all proceedings, legal or equitable, shall be
regarded (to the extent permitted by law), as part of the Realty, whether or not
any such item is physically attached to the Realty or Improvements. The mention
in any such financing statement of any of the Mortgaged Property shall not be
construed as in any way altering any of the rights of Mortgagee or adversely
affecting the priority of the ▇▇▇▇ granted hereby, but such mention in the
financing statement is hereby declared to be for the protection of Mortgagee in
the event any court shall at any time hold that notice of Mortgagee's priority
of interest, to be effective against any third party, must be filed in the
Uniform Commercial Code records. Information relating to the security interest
created hereby may be obtained by application to Mortgagee (secured party) at
the address set forth on page 1 hereof. The mailing addresses of the Mortgagor
and the Company are set forth on page 1 hereof.
15. Waivers by ▇▇▇▇▇▇▇▇▇ and the Company. Mortgagor and the Company, to the
------------------------------------
extent permitted by law, hereby waive all errors and imperfections in any
proceedings instituted by Mortgagee and all benefit of any present or future
statute of limitations or moratorium law or any other present or future law,
regulation or judicial decision which (a) exempts any of the Mortgaged Property
or any other property, real or personal, or any part of the proceeds arising
from any sale thereof from attachment, levy or sale under execution,
-17-
(b) provides for any stay of execution, marshalling of assets, exemption from
civil process, redemption, extension of time for payment or valuation or
appraisement of any of the Mortgaged Property, or (c) conflicts with any
provision of the Reimbursement Agreement.
16. Notices. All notices, requests, consents and demands
-------
under and with respect to this Mortgage shall be in writing, and shall be served
by registered or certified mail, return receipt requested; by hand delivery; by
overnight mail; or by a nationally recognized overnight delivery service,
addressed to the respective parties at the following addresses (or to such other
addresses as either party shall provide to the other by written notice):
If to Mortgagee: Miles Inc.
One Mellon Center
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇, Senior Vice President &
Treasurer and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, Director -
Treasury Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Pharmaceutical Division
Miles Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Law Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company: Melville Biologics, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, President & CEO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Mortgagor: Suffolk County Industrial Development Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Post Office Box ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-0099
Attention: Administrative Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-18-
All such notices shall be deemed given three (3) business days after deposit
with the U.S. Postal Service if given by certified or registered mail; upon
actual delivery if hand delivered; and one (1) business day after deposit after
deposit with U.S. Postal Service for overnight mail or nationally recognized
overnight delivery service.
17. Status of Parties. It is understood and agreed that the
-----------------
relationship of the parties is that of Mortgagor and Mortgagee and that nothing
herein or in the Reimbursement Agreement or the Guaranty shall be construed to
constitute a partnership, joint venture or cotenancy among Mortgagor, the
Company and Mortgagee.
18. Severability. In the event any one or more of the provisions
------------
contained in this Mortgage or in the Reimbursement Agreement shall, for any
reason, be held to be inapplicable, invalid, illegal, or unenforceable in any
respect, such inapplicability, invalidity, illegality or unenforceability shall
not affect any other provision of this Mortgage, but this Mortgage shall be
construed as if such inapplicable, invalid, illegal or unenforceable provision
had never been contained herein or therein.
19. Successors. All of the grants, covenants, terms, provisions and
----------
conditions herein shall run with the land and shall apply to, bind and inure to
the benefit of, the respective successors and assigns of, Mortgagor, Mortgagee
and the Company.
20. Acceleration. In order to accelerate the maturity of the
------------
indebtedness hereby secured because of the failure of the Company to pay any
tax, assessment, liability, obligation, encumbrance or other Imposition upon the
Mortgaged Property as herein provided, it shall not be necessary nor requisite
that Mortgagee shall first pay the same.
21. Foreclosure Sale. In case any sale under this Mortgage occurs by
----------------
virtue of judicial proceedings, the Mortgaged Property may be sold in one parcel
and as an entity, or in such parcels, manner or order as Mortgagee in its sole
discretion may elect.
22. Lien Law. This Mortgage is subject to the trust provisions of
--------
Section 13 of the Lien Law of the State of New York.
23. Miscellaneous. (a) The section headings in this Mortgage are used
-------------
only for convenience in finding the subject matters and are not part of this
Mortgage or to be used in determining the intent of the parties or otherwise
interpreting this Mortgage; (b) as used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (i) "including" shall mean "including but not
limited to", (ii) "provisions" shall mean "provisions, terms, covenants and/or
conditions", (iii) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage and/or deed of trust", (iv) "obligation" shall mean
"obligation, duty, covenant and/or condition", (v) "any of the Mortgaged
Property " shall mean "the Mortgaged Property or any part thereof or interest
therein", (vi) "tenant" shall mean "tenant and/or subtenant and/or occupant
and/or user of any of the Property", and (vii) "any of the Property" shall mean
"the Property or any part thereof or interest therein"; (c) any act which
Mortgagee is
-19-
permitted to perform under the Reimbursement Agreement or this Mortgage may be
performed at any time and from time to time by Mortgagee or any person or entity
designated by Mortgagee; (d) each appointment of Mortgagee as attorney-in-fact
for Mortgagor or the Company hereunder is irrevocable and coupled with an
interest; (e) this Mortgage may be modified, amended, discharged or waived only
by an agreement in writing signed by Mortgagor, Mortgagee and the Company; (f)
the covenants of this Mortgage shall run with the land and bind Mortgagor and
the Company, and the successors and assigns of Mortgagor and the Company, and
all present and subsequent encumbrances, tenants and subtenants of any of the
Mortgaged Property, and shall inure to the benefit of Mortgagee, its successors
and assigns; and (g) this Mortgage shall be governed and construed in accordance
with the laws of the State of New York.
24. The Property is not improved or to be improved by one or more
structures containing in the aggregate not more than six residential dwelling
units, each dwelling unit having its own separate cooking facilities.
25. Notwithstanding anything to the contrary in this Mortgage, with
respect to ▇▇▇▇▇▇▇▇▇, it is agreed that Mortgagor, its officers, members,
employees, agents and directors shall have no personal liability hereunder, nor
in their capacity as officers, members, employees, agents and directors.
▇▇▇▇▇▇▇▇▇ has executed this Mortgage to subject its interest in the Mortgaged
Property to the lien of this Mortgage; however, Mortgagee shall have no recourse
against Mortgagor other than its interest in the Mortgaged Property. No
provision, covenant or agreement contained in this Mortgage or any obligations
herein imposed upon Mortgagor or the breach thereof, shall constitute or give
rise to or impose upon Mortgagor a pecuniary liability or a charge upon its
general credit. In making the agreements, provisions and covenants set forth in
this Mortgage, Mortgagor has not obligated itself except with respect to the
Mortgaged Property. All covenants, stipulations, promises, agreements and
obligations of Mortgagor contained herein shall be deemed to be covenants,
stipulations, promises, agreements and obligations of Mortgagor and not of any
member, director, officer, employee or agent of Mortgagor in his or her
individual capacity, and no recourse shall be had for the payment of the
principal of any debt or interest thereon or for any claim based thereon or
hereunder against any member, director, officer, employee or agent of Mortgagor
or any natural person executing this Mortgage. No covenant herein contained
shall be deemed to constitute a debt of the State of New York nor the County of
Suffolk and neither the State of New York nor the County of Suffolk shall be
liable on any covenant contained herein, nor shall the Obligations secured by
this Mortgage be payable out of any funds of Mortgagor.
26. The Company directs Mortgagor to execute and deliver this Mortgage
to Mortgagee.
-20-
IN WITNESS WHEREOF, intending to be legally bound hereby, ▇▇▇▇▇▇▇▇▇
and the Company have caused this Mortgage to be duly executed on the day and
year first above written.
MORTGAGOR:
SUFFOLK COUNTY INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Administrative Director
-----------------------------
THE COMPANY:
MELVILLE BIOLOGICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: PRESIDENT & CEO
-----------------------------
-21-
ACKNOWLEDGMENT
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this, the 28 day of February, 1995, before me, a Notary Public,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, to me known, who, being by me
personally sworn, did depose and say that he resides at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, that he is the President and Chief Executive
Officer of Melville Biologics, Inc. a Delaware corporation, the corporation
described in and which executed the foregoing instrument by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year first above written.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Notary Public
My Commission expires:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 02WI5012233
Qualified in Monroe County
Certificate Filed in Monroe County
Commission Expires June 15, 1995
-22-
ACKNOWLEDGMENT
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this, the 27 day of February, 1995, before me, a Notary Public,
personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to me known, who, being by me personally
sworn, did depose and say that s(he) resides at Ziemack Lane, Jamesport, NY,
that s(he) is the Admin. Director of Suffolk County Industrial Development
Agency, a public benefit corporation, organized and existing under the laws of
the State of New York, the corporation described in and which executed the
foregoing instrument by authority of the Board of Directors of said corporation,
and that (s)he signed (his)(her) name thereto by like authority.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year first above written.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Notary Public
My Commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 4853562
Qualified in Suffolk County
Commission Expires Feb. 17, 1996
-23-
EXHIBIT A
ALL that certain plot, piece or parcel of land, situate, lying and
being at Melville, in the Town of Huntington, County of Suffolk and State of New
York, bounded and described as follows:
BEGINNING at a point on the new Northerly side of ▇▇▇▇▇▇ Road, distant
783.40 feet, Easterly as measured along said Northerly side of ▇▇▇▇▇▇ Road, from
the Southeasterly end of a connecting line, having a length of 52.23 feet,
connecting the said Northerly side of ▇▇▇▇▇▇ Road and the Easterly side of New
York State Route 110; said point of beginning also being where the Southeast
corner of the land now or formerly of ▇▇▇▇▇▇ intersects the said Northerly side
of ▇▇▇▇▇▇ Road;
RUNNING THENCE North 4 degrees 54 minutes 38 seconds East, 1047.70
feet, to the land now or formerly of Abramoske;
▇▇▇▇▇▇ along said last mentioned land the following two courses and
distances:
1. South 85 degrees 14 minutes 32 seconds East, 132.22 feet;
2. South 84 degrees 32 minutes 47 seconds East, 321.30 feet, to land
now or formerly of Brand;
▇▇▇▇▇▇ along said last mentioned land, the following two courses and
distances:
1. South 5 degrees 38 minutes 21 seconds West, 280.65 feet;
2. South 4 degrees 54 minutes 38 seconds West, 772.18 feet, to the
new Northerly side of ▇▇▇▇▇▇ Road;
THENCE along said ▇▇▇▇▇▇ Road, North 84 degrees 05 minutes 47 seconds
West, 450.00 feet, to the point or place of BEGINNING.
-24-
AMENDMENT
TO
MORTGAGE,
SECURITY AGREEMENT AND FIXTURE FILING
from
SUFFOLK COUNTY INDUSTRIAL DEVELOPMENT AGENCY, Mortgagor
and
V.I. TECHNOLOGIES. INC. (formerly known as Melville Biologics, Inc.), Company
to
BAYER CORPORATION (formerly known as Miles, Inc.), Mortgagee
DATED AS OF December 22, 1997
After recording, please return to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇.
Pittsburgh, Pennsylvania 15219-2788
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
AMENDMENT TO
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
-----------------------------------------------
THIS AMENDMENT TO MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING, dated as
of December 22, 1997 (the "Amendment") is made among SUFFOLK COUNTY INDUSTRIAL
DEVELOPMENT AGENCY, a public benefit corporation organized and existing under
the laws of the State of New York, having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-0099 ("Mortgagor"), V.I.
TECHNOLOGIES, INC. (formerly known as Melville Biologics. Inc.), a Delaware
corporation (the "Company"); having an address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, and BAYER CORPORATION (formerly known as Miles, Inc.), an Indiana
corporation, having an address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Mortgagee"). References herein to this Amendment shall mean this
instrument and any and all renewals, modifications, amendments, supplements,
extensions, consolidations, substitutions, spreaders and replacements of this
instrument.
Background
----------
WHEREAS, ▇▇▇▇▇▇▇▇▇ granted to Mortgagee that certain Mortgage, Security
Agreement and Fixture Filing dated as of February 15, 1995 and recorded in Book
18919 Page 642 of the records of Suffolk County, New York on March 3, 1995 (the
"1995 Mortgage"; terms used below and not defined herein are used as defined in
the 1995 Mortgage) covering the Property;
WHEREAS, the 1995 Mortgage secured reimbursement and other obligations of
the Company under the Reimbursement Agreement, relative to the Guaranty by
Mortgagee of the PNC Loan, and other obligations of the Company, to the
Mortgagee;
WHEREAS, pursuant to a Credit Agreement dated as of the date hereof between
the Company and The Chase Manhattan Bank ("Chase") (as the same may be amended,
modified, supplemented or extended from time to time, the "Credit Agreement"),
Chase has agreed to make a loan in the amount of $10,750,000 (the "Loan") to the
Company;
WHEREAS, the Loan will be made in part to pay off the PNC Loan, whereby,
among other things, the Guaranty and said reimbursement obligations will be
terminated, and in conjunction therewith the Reimbursement Agreement is being
amended and restated;
WHEREAS, Mortgagee, the Company, and Chase have entered into that certain
Intercreditor Agreement dated as of the date hereof (as the same may be amended,
modified or supplemented at any time, the "Intercreditor Agreement");
WHEREAS, Mortgagee, Ampersand Specialty Materials and Chemicals II Limited
Partnership, Ampersand Specialty Materials and Chemicals III Limited
Partnership, Laboratory Partners I Limited Partnership, Ampersand Specialty
Materials and Chemicals III Companion Fund Limited Partnership and Laboratory
Partners Companion Fund Limited Partnership
(collectively, "Ampersand") entered into, with the Company, that certain
Intercreditor Agreement dated as of June 21, 1996 (the "Bayer/Ampersand
Intercreditor Agreement") in order to define each of Bayer's and Ampersand's
respective rights and obligations to receive and share any amounts received
pursuant to the Bayer Security Documents (as such term is defined in the
Bayer/Ampersand Intercreditor Agreement) and the Ampersand Security Documents
(as such term is defined in the Bayer/Ampersand Intercreditor Agreement); and
WHEREAS, the Bayer/Ampersand Intercreditor Agreement is being terminated
pursuant to this Amendment to, the Ampersand Termination, Discharge and Release
from Ampersand to the Company (the "Ampersand Termination"), and the VITEX
Intercreditor Termination, Discharge and Release from the Company to each of
Ampersand and Mortgagee (the "VITEX Intercreditor Termination"), each of which
is dated as of the date hereof;
NOW THEREFORE, in consideration of the premises and for the sum of Ten
Dollars ($10.00), the receipt and sufficiency of which is hereby acknowledged,
Mortgagor and Mortgagee hereby agree as follows:
1. References in the 1995 Mortgage are amended or deleted as follows:
a. references to Melville Biologics, Inc. are changed to V.I.
Technologies, Inc.;
b. references to Miles, Inc. or Miles are changed to Bayer
Corporation and Bayer, respectively;
c. references to the "Reimbursement Agreement" are replaced with
references to the Security Agreement between the Company and
Mortgagee dated the date hereof, and said reimbursement
obligations are terminated, discharged and released and no longer
secured by the 1995 Mortgage, as amended hereby;
d. references to PNC, the PNC Loan, the PNC Loan Documents, and
similar words, are deleted;
e. references to the Guaranty are deleted;
f. Sections 7(b) and 10(c) are deleted in their respective
entireties; and
g. references to "this Mortgage" or similar references shall be
deemed amended to refer to the 1995 Mortgage as amended by this
Amendment.
2. The Borrower Mortgage, as defined in the Credit Agreement, is
permitted and excluded from the limitations of Section 7(a) of the 1995
Mortgage, as amended hereby. Pursuant and subject to the Intercreditor
Agreement, any failure by the Mortgagor or the Company to comply with the
covenants and other provisions of the 1995 Mortgage shall not
permit the Mortgagee to exercise any rights or remedies under any document to
which the Mortgagee is a party with the Mortgagor or the Company.
3. Section 16 in the 1995 Mortgage is amended by deleting the phrase "If
to Mortgagee:" and the address that appears to the right of such phrase and
substituting instead the following:
If to Mortgagee: Bayer Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇, Senior
Vice President and Treasurer
and
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, Director - Treasury Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
4. So long as in effect, in the event of any conflict between the
Intercreditor Agreement and the 1995 Mortgage, the Intercreditor
Agreement shall control over any contrary provision in the 1995
Mortgage, as amended hereby.
5. So long as the Intercreditor Agreement is in effect, the covenants and
other provisions of the Borrower Mortgage shall be incorporated by
reference into and supercede any contrary or other provisions of the
1995 Mortgage, as amended hereby, so the Mortgagor and the Company, as
applicable, need comply only with such covenants and other provisions
of the Borrower Mortgage and not with the covenants or other
provisions of the 1995 Mortgage, as amended hereby.
6. Other than as so amended or affected, the 1995 Mortgage shall remain
in full force and effect.
7. The Mortgagee, for itself and its successors and assigns, hereby
terminates all right, title and interest in and to the Bayer/Ampersand
Intercreditor Agreement, and hereby discharges and releases each of
Ampersand and the Company from any and all liabilities, obligations,
claims and causes of action relating to, arising out of, in connection
with, or in respect of the Bayer/Ampersand Intercreditor Agreement;
provided, however, that such termination shall not become effective
-------- -------
until each of the Company and Ampersand shall have executed and
delivered the VITEX Intercreditor Terrnination and the Ampersand
Termination, respectively.
8. The Company and the Mortgagee hereby acknowledge that, pursuant to
that certain Escrow Agreement among them and First American Title
Insurance Company of New York, dated February 7, 1995, that certain
Mortgage dated as of February 7, 1995 made by the Company in favor of
Mortgagee never became effective, was never recorded and was
superseded in its entirety by the 1995 Mortgage.
This Amendment has been duly executed by ▇▇▇▇▇▇▇▇▇, the Company and
Mortgagee on the date first above written.
V.I. TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, CFO
SUFFOLK COUNTY INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Administrative Director
BAYER CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice Pres.
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 22nd day of December 1997, before me, a Notary Public, personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known, who, being by me personally sworn, did
depost and say that (s)he resides at Melville, New York, that (s)he is the Vice
President, CFO of V.I. Technologies, Inc., a Delaware corporation, the
corporation described in and which executed the foregoing instrument by
authority of the Board of Directors of said corporation, and that (s)he signed
his(her) name thereto by like authority.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year first above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Notary Public
[STAMP OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ APPEARS HERE]
My Commission expires: January 31, 1998
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NASSAU )
On the 22nd day of December 1997, before me, a Notary Public, personally
appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to me known, who, being by me personally sworn, did
depost and say that (s)he resides at Riverhead, New York, that (s)he is the
Administrative Director of Suffolk County Industrial Development Agency, a
public benefit corporation, organized and existing under the laws of the State
of New York, the corporation described in and which executed the foregoing
instrument by authority of the Board of Directors of said corporation, and that
(s)he signed his(her) name thereto by like authority.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year first above written.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
My Commission expires: February 17, 1998
[STAMP OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ APPEARS HERE]
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss:
COUNTY OF ALAMEDA )
On the l9th day of December, 1997, before me, a Notary Public, personally
appeared ▇▇▇▇ ▇▇▇▇, to me known, who, being by me personally sworn, did depose
and say that he resides at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, that
he is the Vice President -Commercial Development of Bayer Corporation, an
Indiana corporation, the corporation described in and which executed the
foregoing instrument for the purposes therein contained, and that he, being
authorized to do so, signed his name thereto on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and
year first above written.
/s/ ▇.▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Notary Public
[STAMP OF ▇.▇. ▇▇▇▇▇▇▇▇ APPEARS HERE]
My Commission expires: April 11, 1998