Mortgage Between Usa Detergents And Pnc Bank

MORTGAGE


THIS MORTGAGE, made the 25th day of February, 1998 by USA DETERGENTS, INC., a corporation organized and existing under the laws of the State of Delaware, and duly authorized to do business in the State of New Jersey, located at 1735 Jersey Avenue, North Brunswick, New Jersey 08902 ("Mortgagor"), and PNC BANK, NATIONAL ASSOCIATION, having an office at Two Tower Center Boulevard, East Brunswick, New Jersey 08816 ("Mortgagee").


W I T N E S S E T H:


Mortgagor, intending to be legally bound and for the purpose of securing strict, absolute and unconditional payment and performance under certain Notes of even date herewith [as defined in an Amended and Restated Loan and Security Agreement (hereafter the "Loan Agreement") executed contemporaneously herewith], together with any amendments thereto, extensions or renewals thereof, or any substitutions or replacements therefore, with interest thereon, in the aggregate principal amount of Thirty-Five Million Nine Hundred Ninety-Seven Thousand Nine Hundred Eighty-Three Dollars and Sixteen Cents ($35,997,983.16) executed and delivered by Mortgagor to Mortgagee and payment and performance of any and all liabilities, debts and obligations of Mortgagor related thereto whether under any and all agreements now or hereafter entered into between Mortgagor and Mortgagee or otherwise, without limitations, and to secure performance of the covenants contained in this Mortgage does hereby give, grant, bargain, sell, release, transfer, alien, enfeoff, convey and confirm to Mortgagee, the lands, premises and property situate in the Township of North Brunswick, County of Middlesex and State of New Jersey, commonly known as 1600 U.S. Highway One North, North Brunswick, New Jersey, Block 143, Lot 18.3 on the Tax Map of the Township of North Brunswick, and more particularly described in Schedule "A" annexed hereto and made a part hereof. The loans from Mortgagee to Mortgagor which is evidenced by the Notes is hereinafter referred to as the "Loans". The documents evidencing and/or securing the Loans are hereinafter collectively referred to as the "Relevant Documents." Notwithstanding anything contained herein to the contrary, this Mortgage shall constitute a first mortgage lien on the Subject Premises (as hereinafter defined) securing the principal sum of $5,000,000.00, interest thereon and costs and expenses related thereto and a third mortgage lien on the Subject Premises securing the principal sum of $30,997,983.16, interest thereon and costs and expenses relating thereto, which third mortgage lien shall be subject and subordinate to that certain second mortgage (the "Second Mortgage") securing the principal sum of $4,000,000.00 and interest thereon granted to 101 Realty Associates, L.L.C., a New Jersey limited liability company ("101 Realty").


TOGETHER with all and singular the present and future buildings and improvements thereon and the appurtenances thereto.


AND TOGETHER with the buildings, streets, alleys, easements, passage ways, water, watercourses, rights, liberties, privileges, improvements, mineral rights, hereditaments and appurtenances whatsoever thereunto belonging or in any way appertaining, and the reversions and remainders.


AND ALSO TOGETHER with any and all fixtures, machinery, equipment and other articles of real, personal or mixed property at any time attached to or situate or installed in or upon the above described real estate or the buildings and improvements now or hereafter erected


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thereon, whether or not such real, personal or mixed property is or shall be affixed to the same, including, without limitations to things similar or dissimilar;


All furniture, furnishings, floor coverings, household appliances,
office equipment, and articles of interior decoration;


All machinery, equipment, lifts, cranes, hoists, platforms;


All cleaning, ventilating, refrigerating, vending, incinerating, waste
disposal, conveyor, communications, alarm, fire prevention and fire
extinguishing systems, apparatus and equipment;


All passenger and freight elevators, escalators and machinery and
equipment pertaining thereto;


All pipes, conduits, pumps, boilers, tanks, motors, engines, furnaces,
and compressors;


All heating, lighting, water, power, plumbing, gas-burning,
air-conditioning and electrical fixtures, machinery and equipment of
whatsoever kind and nature;


All computers, disc drives, tape drives, modems, data lines, memory
blanks, processors, and all hardware and software relating thereto;


All additions thereto and accessions thereon; and


All replacements thereof and substitutions therefor as well as the
proceeds thereof, including, without limitation, proceeds of insurance
and condemnation awards;


all of which are hereby declared and shall be deemed to be real estate fixtures, accessory to the freehold and a part of the reality. It being the intention of the parties, without limiting the generality of the foregoing, that the aforesaid indebtedness shall be secured, inter alia, upon the buildings and improvements erected on said real estate, fully furnished and equipped and that all articles of real, personal or mixed property, furniture and furnishings, machinery and equipment, necessary or useful for any purpose to which such buildings and improvements are now or hereafter put, which may at any time hereafter be in, on or about the premises, not limited to those enumerated herein (but excluding all consumable stores and all furniture, furnishings, appliances, trade fixtures, fixtures, and other personal property owned by tenants and installed for the purpose of their tenancies with right of removal at or before the expiration of the terms of their leases) as well as the proceeds thereof, shall be deemed to be a part of the security for said indebtedness and subject to the lien of this Mortgage. This Mortgage shall also constitute a security agreement under the Uniform Commercial Code, and Mortgagor grants and Mortgagee shall have and may enforce a security interest, to secure payment of all sums due or to become due to the Mortgagee, in any or all said fixtures, machinery, inventory, furniture, equipment, furnishings and other articles of real, personal or mixed property in addition to (but not in limitation of) the lien upon the same, as part of the reality, imposed by the foregoing provisions hereof, such security interest to attach at the earliest moment permitted by law and also to include and attach to all accounts, accounts receivable, contract rights, chattel paper, documents, instruments, goods and general intangibles of Mortgagor obtained in connection with or relating to the operation, construction and maintenance of the premises, or used or useable in connection therewith, including, without limitation, all plans, blueprints, surveys, operating manuals, diagrams, drawings, records, books, computer programs, computer tapes, discs, computer printouts, as well as any and all items of property in the foregoing classifications which are


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hereafter acquired and in all cash and non-cash proceeds thereof (including insurance proceeds) and proceeds of proceeds.


AND ALSO TOGETHER, with all of the rents, issue, profits and proceeds of the premises, including without limitation all of the rents, issue, profits and proceeds of all of the foregoing. (All of the property, whether real, personal or mixed in which Mortgagor is granting a lien and/or security interest is referred to herein as the "Subject Premises").


TO HAVE AND TO HOLD the said hereditaments and Subject Premises granted above, or intended to be so granted, with the appurtenances, unto the Mortgagee to and for the only proper use and behoof of the Mortgagee, forever.


AND the Mortgagor does hereby covenant with Mortgagee that Mortgagor is lawfully seized of an indefeasible estate in fee simple in the Subject Premises; that Mortgagor is the sole legal and beneficial owner thereof and does not hold as straw party for or nominee of any other person, firm or corporation; that Mortgagor has good right and lawful authority to sell or mortgage the same; and that Mortgagor's title to the Subject Premises is free and clear of all liens and encumbrances and shall defend same against all willful claims whatsoever.


This Mortgage secures repayment of moneys due under the Notes and the other Relevant Documents. The Notes is also secured by any and all guaranty agreements heretofore or hereafter executed and delivered which assure payment and performance as therein specified of the obligations of the Mortgagor therein specified and such other monies as may be due from Mortgagor to Mortgagee now or hereafter as further set out below (collectively, the "Guaranty Agreement"). Each party to a Guaranty Agreement is hereinafter referred to as a "Guarantor". The original stated amount of the obligations secured hereby including the Notes is the total of the sums aforementioned including sums due or to become due in the future from Mortgagor to Mortgagee in connection with any of the foregoing, provided, however the dollar amount set forth herein is solely for the purposes of this Mortgage and shall not be construed as limiting or modifying the Guaranty Agreement in any way. This Mortgage contemplates future advances to Mortgagor and shall secure repayment of all monies due from Mortgagor to Mortgagee now or in the future whether due under this Mortgage, the Notes, the Loan Agreement (as defined herein), or any of the other Relevant Documents. In addition to the principal under the Notes, this Mortgage shall secure payment of interest under the Notes on the unpaid principal balance thereof (including interest at the Taxable Rate as set out in the Notes if this Mortgage secures repayment of the Loans the interest on which is exempt from federal taxation) from the date of the Notes until paid.


TAX IDENTIFICATION NUMBER. The tax identification number of the Mortgagor is 11-2935460.


FUTURE ADVANCES. THIS MORTGAGE SECURES FUTURE ADVANCES. This Mortgage shall also cover and be security for any other future advances that may be made in connection with the Loans (whether with or without obligation to do so) by Mortgagee to Mortgagor at any time or times hereafter whether or not any reference is made to this Mortgage at the time that such advances are made, including without limitation, any advances made by Mortgagee for the protection or preservation of the Subject Premises, or Mortgagee's lien position thereon, including any such advances made subsequent to the entry of foreclosure judgment. This Mortgage shall secure repayment of all monies due from Mortgagor to Mortgagee in connection with the Loans now or in the future even if such amounts exceed the aforementioned contemplated maximum amount secured hereby. Without limiting the generality of any other provision(s) hereof, this Mortgage shall also secure repayment of the unpaid balance


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of advances made, with respect to the Subject Premises, for the payment of taxes, assessments, maintenance charges, insurance premiums or costs incurred for the protection of the Subject Premises or the lien of this Mortgage, expenses incurred by the Mortgagee by reason of default by the Mortgagor under this Mortgage or advances made under the Loan Agreement. The amount of all such Loans or advances shall be added to the principal indebtedness but shall bear interest and shall be repaid at the rate or rates specified in the Notes or other evidence(s) of indebtedness made in connection with such Loans or advances.


DEFAULT RATE. Upon the occurrence of an Event of Default (as defined herein), Mortgagee, at its sole option, may increase the interest rate due on all sums secured hereby to a rate of interest which is two percent (2%) above the interest rate specified in the Notes (the "Default Rate").


PROVIDED ALWAYS that, if Mortgagor shall pay to Mortgagee all sums due or to become due under the Notes, this Mortgage, the Loan Agreement, or any of the other Relevant Documents, and shall fully perform, comply with, and abide by each and every stipulation, agreement, condition, and covenant of this Mortgage, the Notes, the Loan Agreement, and the other Relevant Documents and shall pay all taxes, charges and assessments that may accrue on or be levied or assessed against the Subject Premises, and all costs and expenses that Mortgagee may be put to in collecting the indebtedness secured hereby, protecting the security hereof, and/or enforcing the covenants and promises of Mortgagor by foreclosure of this Mortgage or otherwise, including without limitation, attorneys' fees; that then and from thence forth, this Mortgage and the estate hereby granted shall cease and be null and void.


1. PAYMENT AND PERFORMANCE.


A. Payments shall be made at such office of Mortgagee as the Mortgagee shall direct in writing from time to time.


B. Mortgagor shall perform and comply with all of the agreements, conditions, covenants, provisions and stipulations contained herein, in the Notes, in the Loan Agreement, and in the other Relevant Documents. Such performance shall be at Mortgagor's sole cost.


C. A default by the Mortgagor under the Loan Agreement shall likewise be a default by the Mortgagor hereunder and under the Notes. The Loan Agreement, this Mortgage and the Notes are intended to supplement each other and, to the extent of any conflict among them, the provisions of the Loan Agreement shall prevail unless the giving of such priority to the provisions of the Loan Agreement would result in any lien against the Subject Premises becoming prior to the lien of this Mortgage as to all or any part of the indebtedness secured hereby theretofore or thereafter advanced by the Mortgagee.


D. Except as provided in paragraph 1C. hereof, if there is a conflict between the terms of this Mortgage and the Notes, the terms of this Mortgage shall prevail.


2. TAXES AND INSURANCE ESCROWS.


A. At the option of Mortgagee, whether or not an Event of Default (as defined herein) has occurred hereunder Mortgagor shall pay to Mortgagee, on the first day of each month, a sum determined by dividing the amount of all real estate taxes, water and sewer rents, assessments, ground rents, levies, liabilities, obligations and encumbrances (all as estimated


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by Mortgagee) of any and every nature assessed, imposed or charged on or against the Subject Premises or the owners or possessors thereof or which may, if not paid, be or become liens against the Subject Premises superior to the lien of this Mortgage (less all sums already paid on account thereof) by the number of months thereafter remaining before the first day of the last full calendar month prior to the month in which the last date on which such taxes and other charges may be paid without penalty or interest falls. Such sums shall be held by Mortgagee without interest to pay the said taxes and other charges as they become due and payable; provided however, that in the event of any Event of Default hereunder, Mortgagee may apply any and all sums held on account of the principal, interest or other sum payable hereunder in such priority as Mortgagee may determine.


B. At the option of Mortgagee, whether or not an Event of Default exists hereunder, Mortgagor shall also pay to Mortgagee on the first day of each month a sum determined by dividing the amount of premiums on all insurance required from time to time under the terms hereof (less all sums already paid on account thereof) by the number of months remaining before the first day of the month prior to the month in which such insurance premiums will be due. Such sums shall be held by Mortgagee without interest to pay the said insurance premiums as they become due and payable; provided, however, that if there exists an Event of Default hereunder, Mortgagee may apply any and all sums so held on account of the principal, interest, or other sums payable hereunder in such priority as Mortgagee may determine.


C. The options granted Mortgagee in Paragraph 2A and 2B hereof may be exercised at any time and from time to time by written notice to Mortgagor at its last known address in the manner provided herein for notices.


D. Mortgagor grants Mortgagee a lien on and security interest in any and all monies held by Mortgagee pursuant to Paragraphs 2A and 2B hereof.


3. PAYMENT OF TAXES AND INSURANCES. During those periods that Mortgagee does not exercise the options granted in subparagraphs 2A and 2B hereof, or either of them, Mortgagor shall, without demand or notice:


A. Pay the items referred to in subparagraphs 2A and 2B hereof with respect to which Mortgagee has not exercised or is not then exercising its said option when and as they become due and payable, and


B. Furnish Mortgagee with proof of such payment acceptable to Mortgagee on or before the date they or any of them have become due and payable. Such proof to include, without limitation, copies of all tax returns, bills, receipts, notices, and assessments.


C. If Mortgagor fails to comply with the provisions of subparagraphs 3A and 3B hereof, in addition to all other remedies and rights of Mortgagee hereunder and at law, Mortgagee may, at its sole option and without being under any obligation to do so, advance sums from time to time in payment thereof. All monies so advanced and all monies expended by Mortgagee to obtain proof of payment of items referred to in subparagraphs 2A and 2B hereof, or the lack thereof and to facilitate promptly payment thereof shall immediately be due and payable by Mortgagor to Mortgagee and, if not repaid by Mortgagor, be added to and be deemed a part of the principal and the amount so added shall thereafter be fully secured by the lien of this Mortgage and shall bear interest at the Default Rate.


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4. INSURANCE/CASUALTY.


A. Mortgagor shall keep all buildings and improvements, now or hereafter erected on the Subject Premises, including all contents, equipment and inventory which are subject to the lien of this Mortgage or to the security interest granted herein, continuously insured against such loss or damage as Mortgagee may require in its sole discretion which policies shall contain mortgagee endorsement, loss payee and additional insured clauses satisfactory to Mortgagee. Without limiting the foregoing, Mortgagor shall maintain insurance policies, underwritten by property and casualty carriers with a "A/VII" or better rating according to the most recent A. M. Best Property & Casualty Insurance Guide, as follows unless Mortgagee specifically waives an insurance provision hereof in writing and such waiver refers specifically by number and type of insurance to the waived subparagraph below:


(1) Blanket "All-Risks" property insurance
against physical loss or damage to the
Subject Premises at Replacement Cost (no
co- insurance) that includes coverage for
improvements and betterments, Mortgagor's
contents, equipment and inventory, in an
amount not less than the greater of the
original amount of the Notes. The
deductible from any insured property loss
shall not be more than $10,000;


(2) Business interruption, extra expenses, loss
of rents and/or loss of rental value
insurance in amounts equal to a minimum of
six (6) months valuation as determined by
Mortgagee;


(3) If the Subject Premises are in a flood
plain or flood prone area in accordance
with the Federal Flood Disaster Protection
Act of 1973 (Public Law 93-234), as
amended, flood insurance in such amounts as
required under the act;


(4) Comprehensive general liability insurance
for the Subject Premises, including
adjoining streets, sidewalks, passageways
and parking lots, on an occurrence policy
form (not claims made) for the coverages of
Premises/Operations, Bodily Injury and
Property Damage, Products and Completed
Operations, Contractual Liability,
Personal/Advertising Injury with combined
single limits per occurrence not less than
$1,000,000 and Fire Damage Legal Liability
of not less than $100,000. Such liability
insurance policy shall name Mortgagee as an
additional insured;


(5) Umbrella excess liability, following the
form of comprehensive general liability and
other related coverages required hereunder,
with minimum per occurrence and annual
aggregate limits of $5,000,000, if
applicable;


(6) Statutory limits for worker's compensation
insurance and minimum $500,000 for
employer's liability insurance for all
employees of Mortgagor engaged on or with
respect to the Subject Premises. If
Mortgagor engages independent contractors,
then Mortgagor shall be solely responsible
for verifying and maintaining any
appropriate insurance as required by law or
contract for the independent contractors;


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(7) During the course of any construction or
repair or improvement on the Subject
Premises, builder's risk completed value
insurance against "all risks" of physical
loss, including collapse, testing, transit
and equipment/supplies/materials coverages
during construction of such improvements,
in an amount not less than the greater of
the original amount of the Notes, less the
cost of land, as applicable. The policy
deductibles shall not exceed $10,000. If
applicable, such policy shall contain the
"permission to occupy upon completion of
work or occupancy" endorsement;


(8) Builder's risk liability in an amount
satisfactory to Mortgagee;


(9) If appropriate for the Subject Premises,
Boiler and machinery insurance covering
without limitation pressure and
refrigeration objects, mechanical objects,
electrical objects, turbine objects and
production machines, containing joint loss
agreement and Business Interruption/Extra
Expense or Loss of Rents endorsements, in
an amount not less than fifty percent (50%)
of the original amount of the Notes.


(10) Such other insurance, and in such amounts,
as may be required from time to time by
Mortgagee in its sole discretion against
the same or other hazards and liabilities.


B. All insurance policies required of Mortgagor shall protect and be payable to Mortgagee as its interest may appear. Mortgagee shall have the right to collect, receive and receipt for any and all monies that may become payable and collectible upon such policy or policies in the name of the Mortgagor.


C. All policies of insurance required by the terms of Paragraphs 4A and 4B shall contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policy notwithstanding any act or negligence of Mortgagor which might otherwise result in forfeiture of such insurance and the further agreement of the insurer waving all rights of set off, counterclaim, or deductions against Mortgagor.


D. All policies of insurance required by the terms of Paragraphs 4A through 4C shall contain a standard mortgagee clause in favor of Mortgagee, not subject to contribution, and/or a loss payee clause, in form satisfactory to Mortgagee in its sole discretion.


E. Upon Mortgagee's request, Mortgagor shall furnish Mortgagee with a signed duplicate policy with respect to all insurance coverages specified in Paragraphs 4A through 4D. Mortgagor shall also furnish Mortgagee with a signed certificate of insurance for each policy setting forth the coverage, limits and sub-limits, deductibles, the name of the carrier, policy number and policy period dates. Within thirty (30) days of the expiration of such policy, Mortgagor shall furnish Mortgagee with evidence satisfactory to Mortgagee of the payment of the renewal premiums and the issuance of a new policy continuing insurance in force as required by Mortgagee.


F. All insurance policies required in Paragraphs 4A through 4E, including policies for any amounts in excess of the required minimum limits and policies not specifically required by Mortgagee, shall be in form satisfactory to Mortgagee, shall be maintained in full


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force and effect, and are hereby assigned to Mortgagee, with premiums prepaid, as collateral security for payment of the indebtedness secured hereby, and shall contain a provision that such policies will not be cancelled or amended for reduction in limits or scope, without at least thirty (30) days prior and separate written notice to Mortgagee. For purposes of this Paragraph 4F a written notice to the named insured shall not constitute notice to Mortgagee. If for any reason whatsoever any insurance shall be unsatisfactory to Mortgagee, Mortgagor shall place new insurance on the Subject Premises, satisfactory to Mortgagee in its sole discretion.


G. All insurance specified in Paragraphs 4A through 4F shall be o ...