Restated Mortgage

RESTATED MORTGAGE AND SECURITY AGREEMENT


Dated this 24th day of June 1999, by and between Boundless Technologies, Inc. , 100 Marcus Boulevard, Hauppauge, NY 11788 ("Mortgagor") and INDEPENDENCE COMMUNITY BANK, having an office at 179 Pacific Street, Brooklyn, New York 11201 ("Mortgagee").


DEFINITIONS


Mortgagor and Mortgagee agree that, unless the context otherwise specifies or requires, the following terms shall have the meanings herein specified, such definitions to be applicable equally to the singular and the plural forms of such terms.


"Chattels" means all partitions, screens, awnings, venetian blinds, window shades, draperies, carpeting, pipes, ducts, conduits, dynamos, motors, engines, compressors,, generators, boilers, stokers, furnaces, pumps, tanks, elevators, escalators, vacuum cleaning systems, call systems, switchboards, sprinkler systems, fire prevention and extinguishing apparatus, refrigerating, air conditioning, heating, dishwashing, plumbing, ventilating, gas, steam, electrical and lighting fittings and fixtures, licenses or permits of any kind, operating supplies and all building materials, equipment and goods now or hereafter delivered to the Premises and intended to be installed therein, and all other fixtures of every kind and character whatsoever excluding such items which may be owned by tenants of the Premises other than Mortgagor, together with all renewals, replacements and substitutions thereof and additions and accessions thereto in which the Mortgagor now has, or at any time hereafter acquires, an interest and which are now or hereafter located or situated in or upon, or affixed or attached to, or used in connection with the enjoyment, occupancy and/or operation of, all or any portion of the Premises, and the proceeds of all of the foregoing items.


"Commitment Letter" means that certain commitment letter relating to the Loan issued by the Mortgagee to Mortgagor.


"Default Rate" means the default rate of interest as set forth in the Note.


"Guaranty" means the Guaranty of the Loan signed by Boundless Corporation (the "Guarantor").


"Improvements" means all buildings, structures and other improvements presently existing or hereafter constructed on the land described in Exhibit A attached hereto.


"Loan" means the $6,750,000 loan from Mortgagee to Mortgagor as evidenced by the Note and secured by this Mortgage.


"Loan Documents" means the Note, the Mortgage, Guaranty, and any other document executed or delivered by or on behalf of Mortgagor in connection with the Loan.


"Mortgage" means this Mortgage and Security Agreement together with any future amendments, modifications or supplements hereto or hereof.


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"Mortgage Amount" means the sum of $6,750,000.


"Mortgagor" means Boundless Technologies, Inc.


"Note" means that certain Restated Promissory Note from Mortgagor to Mortgagee of even date herewith in the principal sum of $6,750,000 which Note is secured by this Mortgage.


"Premises" means the land described in Exhibit A annexed hereto, known as 100 Marcus Boulevard, Hauppauge, New York 11788, together with the Improvements thereon or to be constructed thereon or therein, and all of the easements, rights, privileges and appurtenances thereunto belonging or in anyway appertaining thereto including, but not limited to, all of the estate, right, title, interest, claim or demand whatsoever of the Mortgagor therein and in and to the strips and gores, streets and ways adjacent thereto, whether in law or in equity, in possession or expectancy, now or hereafter acquired and also any other realty or personalty encompassed by the term "Mortgaged Property", elsewhere herein defined.


W I T N E S S E T H :


WHEREAS, this Mortgage restates and replaces the following mortgage which has been modified and extended to form a single lien of $6,750,000.00 pursuant to Restatement, Extension, Assumption and Modification Agreement of even date herewith recorded simultaneously herewith with the clerk of Suffolk county:


(a) Mortgage made by Applied Digital Data Systems, Inc. ( now known as Boundless Technologies, Inc.) to AT&T Global Information Solutions Company, in the principal amount of $8,000,000 dated December 9, 1994 and recorded December 22, 1994 with the Suffolk County Clerk in Liber 18899, page 434, and which mortgage was assigned to Mortgagee by assignment dated June 22, 1999 to be recorded herewith.


WHEREAS, Mortgagee has agreed to make the Loan pursuant to the terms and conditions of the Commitment Letter; and


WHEREAS, the Mortgagor will borrow the Mortgage Amount from the Mortgagee in accordance with the Commitment Letter, and said indebtedness is evidenced by the Note;


WHEREAS, the parties intend that the Note shall be secured by this Mortgage.


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GRANTING CLAUSE


NOW, THEREFORE, Mortgagor, in consideration of the premises, and in order to secure the Mortgage Amount and all interest due thereon and all other costs and expenses due hereunder and under the Note, and the performance and discharge of all the provisions hereof, of the Note and all other Loan Documents, hereby gives, grants, bargains, mortgages, pledges and grants a security interest to Mortgagee, in all of Mortgagor's estate, right, title and interest in, to and under any and all of the following described property whether now owned or hereafter acquired (all such properties being collectively referred to as the "Mortgaged Property"):


A. All of Mortgagor's right, title and interest in and to the Premises and all right, title and interest of the Mortgagor in and to the Improvements on the Premises or to be constructed thereon and all fixtures and building materials of every kind and nature now or hereafter situated in, on or about, or affixed or attached to the Improvements or the Premises or any building, structure or other improvement now or hereafter standing, constructed or placed upon or within the Premises, and all and singular the tenements, hereditaments, easements, rights-of-way or use, rights, privileges and appurtenances to the Premises, now or hereafter belonging or in any way appertaining thereto, including, without limitation, any such right, title, interest, claim and demand in, to and under any agreement granting, conveying or creating, for the benefit of the Premises, any easement, right or license in any way affecting other property and in, to and under any streets, ways, alleys, vaults, gores or strips of land adjoining the Premises, or any parcel thereof, and all claims or demands either in law or in equity, in possession or expectancy, of, in and to the Premises.


B. All right, title and interest of the Mortgagor in and to all awards heretofore made or hereafter to be made for the taking by eminent domain of the whole or any part of the above described premises, or any estate or easement therein, including any awards for change of grade of streets, all of which awards are hereby assigned to the Mortgagee, which is hereby authorized to collect and receive the proceeds of such awards and to give proper receipts and acquittance therefor and the Mortgagee shall have the right and option to apply such excess towards the payment of any sum owing on account of this Mortgage, the Note and the indebtedness secured thereby, notwithstanding the fact that such sum may not then be due and payable.


C. The Chattels and the products and proceeds thereof.


D. All present and future leases, subleases and licenses and any guarantees thereof, rents, issues and profits and additional rents now or at any time hereafter covering or affecting all or any portion of the Mortgaged Property and all proceeds of, and all privileges and appurtenances belonging or in any way appertaining to, the Mortgaged Property, or any part thereof, and all other property subjected or required to be subjected to the lien and/or security interest of this Mortgage, including, without limitation, all of the rents, maintenance payments, tolls, issues, awards (including, without limitation, condemnation awards and insurance proceeds), products and profits thereof, which rents, maintenance payments, tolls, issues, awards, products and profits are hereby expressly assigned with the right to take and collect the same upon the terms hereinafter set forth; and all the estate, right, title, interest and claim whatsoever, at law and in equity, which Mortgagor now has or may hereafter acquire in and to the aforementioned property and every part thereof, provided that so long as no Event of Default (as hereinafter defined) shall have occurred, all such rents, maintenance payments, tolls, issues, awards, products and profits shall remain with and under the control of Mortgagor except as otherwise expressly provided herein or in any other agreement between Mortgagor and Mortgagee.


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E. All right, title and interest of Mortgagor in and to all agreements, or contracts, now or hereafter entered into for the sale, leasing, brokerage, development, management, maintenance and/or operation of the Premises (or any part thereof), including all moneys due and to become due thereunder, and all permits, licenses, bonds, insurance policies, plans and specifications relative to the construction and/or operation of the Improvements upon the Mortgaged Property.


F. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insurance and condemnation awards, and all right, title and interest of Mortgagor in and to all unearned premiums accrued, accruing and to accrue under any or all insurance policies obtained by Mortgagor.


TO HAVE AND TO HOLD the Mortgaged Property, unto the Mortgagee and its successors and assigns, upon the terms, provisions and conditions herein set forth, forever, and Mortgagor does hereby bind itself and its successors, legal representatives, and assigns to warrant and forever defend all and singular the Mortgaged Property unto the Mortgagee and its successors, against every person whomsoever lawfully claiming or to claim the same or any part thereof.


PART I


SECURED INDEBTEDNESS


This Mortgage, and all rights, titles, interests, liens, security interests, powers, privileges and remedies created hereby or arising hereunder or by virtue hereof, are given to secure the payment and performance of the indebtedness up to the Mortgage Amount plus accrued interest thereon, the obligations and liabilities of Mortgagor arising under the Note and/or under this Mortgage, and any renewals, extensions, amendments or modifications thereof, or any other Loan Document and any and all fees, costs or expenses incurred by Mortgagee, including, but not limited to, taxes, recording expenses and reasonable attorneys' fees in connection with the closing of the Loan and the consummation thereof, after default, the administration and collection thereof, and all costs incurred of whatever nature by Mortgagee in the exercise of any rights hereunder or any Loan Document (all of the foregoing indebtedness, obligations and liabilities being referred to herein as the "Liabilities").


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ARTICLE I


PARTICULAR WARRANTIES, REPRESENTATIONS
AND COVENANTS OF THE MORTGAGOR


Section 1.01 Mortgagor hereby warrants and represents as follows:


(a) Mortgagor is the actual, record and beneficial owner and holder of a good and marketable title to an indefeasible fee estate in the Mortgaged Property, subject only to such exceptions to title as are listed in the title policy insuring the lien of this Mortgage and approved by Mortgagee as permitted exceptions. Mortgagor is the owner of all of the remaining Mortgaged Property; Mortgagor will own the Chattels free and clear of liens and claims; and this Mortgage is and will remain a valid and enforceable first lien on the Mortgaged Property.


(b) Mortgagor has full power and lawful authority to mortgage the Mortgaged Property in the manner and form herein done or intended hereafter to be done. The Mortgagor will preserve such title, and will forever warrant and defend the validity and priority of the lien hereof, against the claims of all persons and parties whomsoever.


(c) The Premises is not located in an area identified by the Secretary of Housing and Urban Development as an area having special flood hazards.


Section 1.02 Mortgagor will, at its sole expense, do, execute, acknowledge and deliver every further act, deed, conveyance, mortgage, assignment, notice of assignment, transfer or assurance as the Mortgagee shall from time to time reasonably require, for the better assuring, conveying, assigning, transferring and confirming unto the Mortgagee the property and rights hereby conveyed, mortgaged or assigned or intended now or hereafter so to be, or which the Mortgagor may be or may hereafter become bound to convey, mortgage or assign to the Mortgagee or for carrying out the intention or facilitating the performance of the terms of this Mortgage, and for filing, registering or recording this Mortgage and, on demand, will execute and deliver, and hereby authorizes the Mortgagee to execute in the name of the Mortgagor to the extent it may lawfully do so, one or more financing statements, chattel mortgages or comparable security instruments, and renewals thereof, to evidence more effectively the lien hereof upon the Chattels.


Section 1.03 (a) Mortgagor forthwith upon the execution of this Mortgage, and thereafter from time to time, will, at its expense, cause this Mortgage and any security instrument creating a lien or evidencing the lien hereof upon the Chattels 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 the Mortgagee in, the Mortgaged Property.


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(b) Mortgagor will pay all taxes, filing, registration and recording fees, and all expenses incident to the execution and acknowledgment of the Note, this Mortgage, any supplemental mortgage, any other Loan Document, and any security instrument with respect to the Chattels, 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 the Note, this Mortgage, any supplemental mortgage, any other Loan Document, any security instrument with respect to the Chattels or any instrument or further assurance, other than income, franchise or other similar taxes imposed on Mortgagee in respect of income derived by Mortgagee under the Note.


Section 1.04 Mortgagor will timely pay the principal and all interest and all other sums to become due in respect of the Note and any other Loan Document at the time and place and in the manner specified in the Note and in the Loan Documents, without offset, counterclaim or defense, all in immediately available funds.


Section 1.05 All right, title and interest of the Mortgagor in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property, hereafter acquired by or released to the Mortgagor or constructed, assembled or placed by the Mortgagor on the Premises, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, conveyance, assignment or other act by the Mortgagor, shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described in the granting clauses hereof, but at any and all times the Mortgagor will execute and deliver to the Mortgagee any and all such further assurances, mortgages, conveyances or assignments thereof as the Mortgagee may reasonably require for the purpose of expressing and specifically subjecting the same to the lien of this Mortgage.


Section 1.06 (a) Within 120 days of the end of each fiscal (or calendar, if applicable) year of the Mortgagor and each Guarantor during the term hereof, the Mortgagor and each Guarantor shall provide to the Mortgagee a year end financial statement with respect to Mortgagor and Guarantor which shall be prepared by an independent certified public accountant acceptable to Mortgagee in accordance with generally accepted accounting principals consistently applied and which shall be audited.


Section 1.07 (a) Mortgagor, from time to time when the same shall become due, and prior to the date of imposition of interest or penalty, will pay and discharge, or cause to be paid and discharged, all taxes of every kind and nature (including real and personal property taxes and income, franchise, withholding, transfer or recordation taxes, profits and gross receipt taxes), all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, and all other public charges, whether of a like or different nature, imposed upon or assessed against it or the Mortgaged Property or any part thereof or upon the revenues, rents, issues, income and profits of the Premises or arising in respect of the occupancy, use or possession thereof. Mortgagor will, at any time upon request by Mortgagee promptly deliver to Mortgagee receipts evidencing the payment of same.


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Upon the occurrence of an Event of Default under this Mortgage, the Mortgagee may, at any time and from time to time, at its option, to be exercised by written notice to the Mortgagor, require the deposit by Mortgagor at the time of each payment of an installment of interest or principal under the Note, of an additional amount sufficient to discharge the obligations under this subsection (a) when they become due. The determination of the amount so payable and of the fractional part thereof to be deposited with the Mortgagee, so that the aggregate of such deposit shall be sufficient for this purpose, shall be made by the Mortgagee in its sole discretion. Such amounts shall be held by the Mortgagee with interest in an interest bearing account acceptable to Mortgagee and applied to the payment of the obligations in respect to which such amounts were deposited. If one month prior to the due date of any of the obligations under this subsection (a) the amounts then on deposit therefor shall be insufficient for the payment of such obligations in full, Mortgagor within ten (10) days after demand shall deposit the amount of the deficiency with the Mortgagee. Nothing herein contained shall be deemed to affect any right or remedy of the Mortgagee under the provisions of this Mortgage or of any statute or rule of law to pay any such amount and to add the amount so paid together with interest at the Default Rate to the indebtedness hereby secured.


(b) The Mortgagor will pay or discharge of record within 60 days, all lawful claims and demands of mechanics, materialmen, laborers, and others which, if unpaid, might result in, or permit the creation of, a lien on the Mortgaged Property or any part thereof, or on the revenues, rents, issues, income and profits arising therefrom and in general will do or cause to be done everything necessary so that the lien hereof shall be fully preserved, at the cost of Mortgagor, without expense to the Mortgagee.


(c) Mortgagor shall indemnify and hold Mortgagee harmless from any and all tax claims which may be made against the Mortgagee relative to the Loan or the Mortgaged Property (but not income or franchise taxes or assessments in respect of income derived by Mortgagee under the Note).


(d) Mortgagor will pay all taxes including, without limitation, any mortgage, transfer, gains, and recordation taxes (but not income, franchise or similar taxes) imposed on the Mortgagee by reason of its ownership of the Note or this Mortgage.


Section 1.08(A) Mortgagor agrees to at all times provide, maintain and keep in force the following policies of insurance:


(a) Insurance against loss or damage to the Mortgaged Property by fire and any of the risks covered by insurance of the type now known as "broad form coverage" in an amount satisfactory to Mortgagee and in amount which is sufficient to void any co-insurance requirements, and with a deductible approved by Mortgagee, from the loss payable for any casualty. The policies of insurance carried in accordance with this subparagraph (a) shall contain a "Replacement Cost Endorsement", a waiver of co-insurance endorsement and a "Permission to Occupy Endorsement";


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(b) Comprehensive public liability insurance (including coverage for elevators and escalators, if any, on the Premises and, if any construction of new improvements occurs after execution of this Mortgage, completed operations coverage for one year after construction of the Improvements has been completed) on an "occurrence basis" against claims for "personal injury" including, without limitation, bodily injury, death or property damage occurring on, in or about the Premises and the adjoining streets, sidewalks and passageways, such insurance to afford immediate minimum protection to limits of not less than that required by Mortgagee;


(c) Worker's compensation insurance including employer's liability insurance for all employees of Mortgagor, if any, engaged on or with respect to the Premises in such amount as is reasonably satisfactory to Mortgagee, or, if such limits are established by law, in such amounts;


(d) During the course of any demolition, construction, renovation or repair of Improvements on the Mortgaged Property, builder's completed value risk insurance against "all risks of physical loss," including collapse and transit coverage, during construction of such Improvements, with deductibles satisfactory to Mortgagee, in non-reporting form, in an amount acceptable to Mortgagee. Such policy of insurance shall contain the "permission to occupy upon completion of work or occupancy" endorsement and a waiver of coinsurance endorsement;


(e) Boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, air conditioning and elevator equipment and escalator equipment, provided the Improvements contain equipment of such nature, and insurance against loss of occupancy or use arising from any such breakdown, in such amounts as are satisfactory to Mortgagee;


(f) Flood loss insurance if the Mortgaged Property is located in an area identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available, in an amount at least equal to the Mortgage Amount or the maximum limit of coverage available with respect to the Mortgaged Property, whichever is less.


(g) Such other insurance, and in such amounts, as may from time to time be reasonably required by Mortgagee against the same or other hazards, including but not limited to rent loss insurance; and


(h) All policies of insurance relating to property required by terms of this Mortgage shall contain a standard non-contributory negligence endorsement providing an 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 waiving all rights of set off, counterclaim or deductions against Mortgagor.


(B) (a) All policies of insurance shall be issued by companies and in amounts reasonably satisfactory to Mortgagee and all policies of property insurance shall have attached thereto the standard mortgagee clause referred to in subparagraph (h) above in favor of Mortgagee, not subject to contribution or co-insurance, and in addition, standard New York endorsement for the benefit of Mortgagee, satisfactory to Mortgagee and lender's loss payable for the benefit of Mortgagee, all in form satisfactory to Mortgagee. Mortgagor shall furnish Mortgagee with a signed duplicate original policy with respect to all required insurance coverage. At least thirty (30) days prior to the expiration of each such policy, Mortgagor shall furnish Mortgagee with evidence satisfactory to Mortgagee of the payment of premium and the reissuance of a policy continuing insurance in force as required by this Mortgage. All such policies, including policies for any amounts carried in excess of the required minimum and policies not specifically required by Mortgagee, shall be in form satisfactory to Mortgagee, shall be maintained in full force and effect, shall be assigned and delivered to Mortgagee, with premiums prepaid, as collateral security for payment of all obligations of the Mortgagor secured hereby, and shall contain a provision that such policies will not be canceled or amended without at least thirty (30) days prior written notice to Mortgagee and at no time shall there be any reduction in the scope or limits of coverage. If the insurance, or any part thereof, shall expire, or be withdrawn, or become void for any reason, or if for any reason whatever the insurance shall be reasonably unsatisfactory to Mortgagee, Mortgagor shall immediately upon learning of such expiration or termination place new insurance on the Premises, satisfactory to Mortgagee.


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(b) In the event Mortgagor fails to provide, maintain, keep in force or deliver and furnish to Mortgagee the policies of insurance required by this Mortgage, Mortgagee may, upon ten (10) days prior written notice to Mortgagor, procure such insurance or single-interest insurance for such risks covering Mortgagee's interest, and Mortgagor will pay all premiums thereon promptly upon demand by Mortgagee, and until such payment is made by Mortgagor the amount of all such premiums, together with interest thereon at the Default Rate shall be secured by this Mortgage.


(c) After the happening of any casualty to the Mortgaged Property or any part thereof which shall cost more than $250,000 to repair, Mortgagor shall give prompt written notice thereof to Mortgagee, and Mortgagee may make proof of loss if not made promptly by Mortgagor. In the event of such loss or damage all proceeds of insurance shall be payable to Mortgagee and Mortgagee shall have the right to join the Mortgagor in adjusting or compromising any claims for loss, damage or destruction in excess of $250,000.00 under any polic ...