SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 1O-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30,1999
Commission File Number 0-17977
BOUNDLESS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other Jurisdiction of Incorporation or Organization)
13-3469637
(I.R.S. Employer Identification No.)
100 Marcus Blvd.
Hauppauge, NY
(Address of principal executive offices)
11788
(Zip Code)
(516) 342-7400
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
---- -----
As of July 6, 1999, the Registrant had approximately 4,438,376 shares of Common
Stock, $.01 par value per share outstanding.
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
INDEX TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Consolidated Balance Sheets as of June 30, 1999 (unaudited) and
December 31, 1998.........................................................3
Consolidated Statements of Operations (unaudited)
for the three and six months ended June 30, 1999 and 1998.................4
Consolidated Statements of Cash Flows (unaudited)
for the six months ended June 30, 1999 and 1998...........................5
Notes to Consolidated Financial Statements (unaudited).......................6
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BOUNDLESS CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(dollar amounts in thousands)
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
ASSETS ---------------- -----------------
Current assets: (unaudited)
<S> <C> <C>
Cash and cash equivalents....................................... $ 395 $ 732
Trade accounts receivable, net.................................. 14,625 13,274
Income tax refunds.............................................. 1,350 1,905
Inventories..................................................... 12,802 12,565
Deferred income taxes........................................... 2,470 2,470
Prepaid expenses and other current assets....................... 904 462
---------------- ----------------
Total current assets......................................... 32,546 31,408
Property and equipment, net........................................ 10,292 10,251
Goodwill, net...................................................... 6,811 7,350
Other assets....................................................... 490 339
---------------- ----------------
$ 50,139 $ 49,348
================ ================
LIABILITIES, REDEEMABLE STOCK AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt (Note 8)...................... $ 1,333 $ 8,000
Accounts payable................................................. 7,333 6,817
Accrued expenses................................................. 7,177 7,074
Deferred revenue................................................. 94 116
---------------- ----------------
Total current liabilities..................................... 15,937 22,007
---------------- ----------------
Long-term liabilities:
Long-term debt, less current maturities (Note 8)................ 14,917 5,500
Deferred income taxes............................................ 1,002 1,002
Other ........................................................... 619 627
---------------- ----------------
Total long-term liabilities................................... 16,538 7,129
---------------- ----------------
Total liabilities............................................. 32,475 29,136
Mandatorily redeemable preferred stock of subsidiary................ - 3,555
---------------- ----------------
Stockholders' equity:
Preferred stock.................................................. - -
Common stock..................................................... 44 44
Additional paid-in capital....................................... 31,246 30,940
Accumulated deficit.............................................. (13,626) (14,327)
---------------- ----------------
Total stockholders' equity.................................... 17,664 16,657
---------------- ----------------
$ 50,139 $ 49,348
================ ================
</TABLE>
SEE ACCOMPANYING NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
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BOUNDLESS CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
<TABLE>
<CAPTION>
Six Months Ended Three Months Ended
June 30, June 30,
------------------------- -------------------------
1999 1998 1999 1998
------------ ------------ ------------- -----------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenue.................................................. $ 41,286 $ 44,794 $ 20,230 $ 21,930
Cost of revenue.......................................... 29,599 32,430 14,709 15,827
------------ ------------ ------------- -----------
Gross margin.................................. 11,687 12,364 5,521 6,103
------------ ------------ ------------- -----------
Operating expenses:
Sales and marketing................................... 4,393 4,285 2,460 2,251
General and administrative............................ 3,384 3,023 1,725 1,610
Research and development.............................. 2,395 1,638 1,321 770
Other charges......................................... (550) (462) (609) (532)
------------ ------------ ------------- -----------
Total operating expenses........................... 9,622 8,484 4,897 4,099
------------ ------------ ------------- -----------
Operating income.............................. 2,065 3,880 624 2,004
Interest expense, net................................. 751 1,347 422 676
Other nonrecurring expenses........................... 101 - 101 -
------------ ------------ ------------- -----------
Income before income taxes............................... 1,213 2,533 101 1,328
Income tax expense....................................... 461 782 39 323
------------ ----------- ------------- -----------
Net income............................................... 752 1,751 62 1,005
Dividend on preferred stock of subsidiary................ 51 249 - 124
------------ ------------ ------------- -----------
Earnings available for common stockholders............... $ 701 $ 1,502 $ 62 $ 881
============ ============ ============= ===========
Weighted average common shares outstanding............... 4,430 5,024 4,431 4,945
============ ============ ============= ===========
Basic earnings per common share.......................... $ 0.16 $ 0.30 $ 0.01 $ 0.18
============ ============ ============= ===========
Weighted average dilutive shares outstanding............. 4,458 5,077 4,473 5,026
============ ============ ============= ===========
Diluted earnings per common share....................... $ 0.16 $ 0.30 $ 0.01 $ 0.18
============ ============ ============= ===========
</TABLE>
SEE ACCOMPANYING NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
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BOUNDLESS CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollar amounts in thousands)
For the Six Months Ended June 30,
(unaudited)
<TABLE>
<CAPTION>
1999 1998
-------------- -------------
<S> <C> <C>
Cash flows from operating activities:
Net income............................................................. $ 752 $ 1,751
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization....................................... 1,084 1,624
Loss from disposal of assets........................................ 8 35
Deferred revenues................................................... (22) 66
Provision for doubtful accounts..................................... 206 412
Provision for excess and obsolete inventory......................... 1,133 578
Options and warrants issued for services............................ 251 -
Changes in assets and liabilities:
Trade accounts receivable........................................... (1,557) (17)
Income tax refunds.................................................. 555 -
Inventories......................................................... (1,370) (1,497)
Other assets........................................................ (351) 159
Accounts payable and accrued expenses............................... 611 (1,098)
-------------- -------------
Net cash provided by operating activities................................. 1,300 2,013
-------------- -------------
Cash flows from investing activities:
Capital expenditures................................................... (502) (425)
-------------- -------------
Cash flows from financing activities:
Payment of mandatorily redeemable preferred stock...................... (3,555) -
Purchase of treasury stock............................................. - (3,000)
Net change in loans payable............................................ - (900)
Payment of long term notes............................................. (8,000) -
Proceeds from issuance of long-term debt............................... 10,365 -
Proceeds from exercise of employee stock options....................... 55 -
-------------- -------------
Net cash used in financing activities..................................... (1,135) (3,900)
-------------- -------------
Net decrease in cash and cash equivalents................................. (337) (2,312)
Cash and cash equivalents at beginning of period.......................... 732 2,929
-------------- -------------
Cash and cash equivalents at end of period................................ $ 395 $ 617
============== =============
Non-cash transactions:
Dividend on preferred stock of subsidiary.............................. $ - $ 124
Options, warrants and common stock issued for services................. 251 -
Cash paid for:
Interest............................................................... 804 347
Taxes.................................................................. 9 125
</TABLE>
SEE ACCOMPANYING NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
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BOUNDLESS CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands)
(unaudited)
1. Condensed Consolidated Financial Statements
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Regulation S-X.
Accordingly, they do not include all of the information and footnotes required
by generally accepted accounting principles for complete financial statements.
In the opinion of management, all adjustments (consisting of only normal
occurring accruals) considered necessary for a fair presentation have been
included. Certain prior period amounts in these financial statements have been
reclassified to conform to current period presentation. Operating results for
the six-month period ended June 30, 1999 are not necessarily indicative of the
results that may be expected for the year ended December 31, 1999. For further
information refer to the consolidated financial statements and footnotes thereto
in the Company's Annual Report on Form 10-K for the year ending December 31,
1998.
2. Background
Boundless Corporation (the "Company") is engaged, through its subsidiary,
Boundless Technologies, Inc. ("Boundless"), in designing and manufacturing
computer terminals for business use. The Company's general strategy is to
provide access to corporate computing environments, including mainframes, LANs,
WANs, intranets and the Internet. Boundless principally designs, assembles,
sells and supports (i) General Display Terminals, (ii) Windows(R)-based
Terminals ("WBTs"), sometimes referred to as "thin clients", and (iii) other
terminal products that are used in multi-user, personal computer and
mini-computer-based environments. The Company is a party to a royalty agreement
with a partnership (the "GAI Partnership") formed by Boundless and General
Automation, Inc. ("GAI") and managed by GAI. The GAI Partnership designs,
integrates, sells and supports multi-user computer systems that can manage large
volumes of data running Boundless' and GAI's versions of a data-based system
licensed from Pick Systems.
3. Inventories
Inventories are stated at the lower of cost or market. Cost is determined on a
first-in first-out basis. The major components of inventories are as follows:
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
--------------------- ----------------------
<S> <C> <C>
Raw materials and purchased components................................ $ 10,057 $ 10,264
Finished goods........................................................ 2,330 1,915
Demonstration equipment............................................... 41 71
Service parts......................................................... 374 315
--------------------- ----------------------
Total inventories .................................................... $ 12,802 $ 12,565
===================== ======================
</TABLE>
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4. Equity
At June 30, 1999 and December 31, 1998 stockholders' equity consisted of the
following:
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
--------------------- ----------------------
<S> <C> <C>
Preferred stock, $0.01 par value, 1,000,000 shares
authorized, none issued............................................ $ - $ -
Common stock, $0.01 par value, 25,000,000 shares
authorized, 4,438,376 and 4,428,609 shares issued
at June 30, 1999 and December 31,1998, respectively................ 44 44
Additional paid-in capital............................................ 31,246 30,940
Accumulated deficit................................................... (13,626) (14,327)
--------------------- ----------------------
Total stockholders' equity......................................... $ 17,664 $ 16,657
===================== ======================
</TABLE>
5. Major Customers
The Company markets its terminal products through original equipment
manufacturers ("OEMs") and reseller distribution channels. Customers can buy
Boundless' products from an international network of value-added resellers
(VARs) and regional distributors. Through its sales force, the Company sells
directly to large VARs and regional distributors and also sells to major
national and international distributors. For the second quarter ended June 30,
1999 and 1998, sales to two major OEMs as a percentage of total revenues were
21% and 22%, respectively.
6. Business Segments
The Company's manufacturing is conducted at its New York facility and its sales
force operates from six geographically dispersed locations in the United States
and European offices in the Netherlands and United Kingdom.
Operating segments are identified as components of an enterprise about which
separate financial information is available for evaluation by its decision
making group. To date, the Company has viewed its operations and manages its
business in principally one segment, hardware sales of computer terminals and
associated services. As a result, the financial information disclosed herein
represents all of the material information related to the Company's principal
operating segment.
Pertinent financial data by major geographic segments for the second quarter
ended June 30, 1999 and 1998 are:
<TABLE>
<CAPTION>
June 30, June 30,
1999 1998
--------------------- ----------------------
<S> <C> <C>
Net sales to unaffiliated customers:
United States......................................................... $ 12,779 $ 14,968
United Kingdom........................................................ 3,125 2,666
Other European countries.............................................. 3,108 3,191
Other foreign areas................................................... 1,218 1,105
--------------------- ----------------------
Total sales .......................................................... $ 20,230 $ 21,930
===================== ======================
</TABLE>
7. Comprehensive Income
The Company has no material items of other comprehensive income. Comprehensive
income for the periods ended June 30, 1999 and 1998 was equal to reported net
income.
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8. Debt
Long term debt at June 30, 1999 and December 31, 1998 consisted of the
following:
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
--------------------- ----------------------
<S> <C> <C>
Note payable to Independence Community Bank bearing interest at 7.75% payable
monthly, balloon payment due on or before July 1, 2009,
collateralized by land and building $ 6,750 $ -
Note payable to NCR, bearing interest at 8% payable
quarterly, principal due on or before June 15, 1999,
collateralized by land and building 8,000
Term loan 4,000
Revolving loan 5,500 5,500
--------------------- ----------------------
16,250 13,500
Less current maturities on long-term debt 1,333 8,000
--------------------- ----------------------
$ 14,917 $ 5,500
===================== ======================
</TABLE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
RESULTS OF OPERATIONS
The numbers and percentages contained in this Item 2 are approximate. Dollar
amounts are stated in thousands.
For the Three and Six Month Period Ending June 30,1999
- ------------------------------------------------------
General - During the quarter ended June 30, 1999 the Company completed
negotiations and closed on agreements for the renewal of its revolving line of
credit and replacement financing for an existing note payable. The terms of both
new financings are generally more favorable than those they replace and provide
a better balance between the Company's short and long-term assets and
liabilities. (See "Liquidity and Capital Resources")
During the most recent quarter the Company also continued its efforts to
diversify and minimize the risks associated with the declining General Display
Terminals market. In concert with Boundless' internal development efforts,
during April 1999 Boundless became a founding board member of the ASP Industry
Consortium. This group is chartered to educate the marketplace, sponsor research
and promote open standards and guidelines for the development of intelligent,
Internet-ready devices ("Internet Appliances"). Internet Appliances are
low-cost, easy-to-use, consumer-focused devices designed to bring the features
and benefits of the Internet to consumers.
Revenue - Revenue for the quarter ended June 30, 1999 was $20,230 as compared to
$21,930 for the quarter ended June 30, 1998. Revenue for the six months ended
June 30 was $41,286 for 1999 versus $44,794 for 1998.
Sales of the Company's General Display Terminals declined 10% to $16,408 for the
quarter ended June 30, 1999 from $18,282 for the quarter ended June 30, 1998.
Demand for General Display Terminals continues to decline as competing
technologies, including WBTs, are gaining market share. For these reasons, sales
of General Display Terminals for 1999 are not expected to reach the levels
achieved in 1998.
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<PAGE>
Sales of the Company's WBT hardware, marketed under the trade names Viewpoint(R)
TC and Capio, and WBT software, marketed under the trade name Viewpoint(R)
Administrator, increased 30% to $3,146 from $2,417 for the quarters ended June
30, 1999 and 1998, respectively. The Company is targeting the approximately 35
million users of General Display Terminals and Network Graphics Displays many of
whom are currently transitioning or intending to transition to graphical
applications that include Windows, the Intranet and Java. In addition, the
Company is targeting the task-oriented users of older, less capable PCs that are
unable to run the latest Windows applications, including those users in business
and education. The Company believes its unique ability to customize its
Viewpoint TC products to meet specific end-customer needs will give it a
sustainable competitive advantage. Historically, this ability has been of great
value to the Company's terminal customers and the Company believes that this
strategy will be equally advantageous in the corporate thin client marketplace.
Net revenue from the Company's repairs and spare parts business was $536 for the
quarter ended June 30, 1999, down from $590 for the quarter ended June 30, 1998.
For the six months ended June 30, 1999, repairs and spare parts sales were
$1,037 versus $1,305 for the comparable period in 1998.
IBM and Digital were the most significant customers for the Company's products,
accounting for 16% and 5% of revenue respectively, for the quarter ended June
30, 1999. The loss of IBM or Digital as a customer, and as a distribution
channel for the Company's products, would have a material adverse effect on the
Company's results of operations and liquidity.
Gross Margin - Gross margin for the three and six months ended June 30, 1999
were $5,521 (27% of revenue) and $11,687 (28% of revenue) respectively, as
compared to gross margins of $6,103 (28% of revenue) and $12,364 (28% of
revenue) for the comparable periods in 1998. Gross margin in the second quarter
of 1999 includes a write-down to market reserve of $824 against inventory
obsolescence risk associated with Boundless' first generation WBT. Excluding
this reserve, gross margin for the quarter ended June 30, 1999 would have been
31%. While the Company intends to develop marketing programs to recover this
reserve or minimize future risks, there can be no assurance the Company will be
successful in its efforts.
In a continuing effort to maintain and improve margins in an industry otherwise
characterized by commodity pricing, management has focused on quality,
flexibility, and product cost reductions. From time-to-time margins are
adversely affected by industry shortages of key components. The Company
emphasizes product cost reductions in its research and development activities
and frequently reviews its supplier relationships with the view to obtaining the
best component prices available.
Total Operating Expenses - For the quarter ended June 30, 1999, operating
expenses were $4,897 (25% of revenue), compared to expenses for the second
quarter of 1998 of $4,099 (19% of revenue). For the six months ended June 30,
1999, operating expenses were $9,622 (23% of revenue) compared to expenses in
the comparable period in 1998 of $8,484 (19% of revenue).
Sales and Marketing Expenses - Sales and marketing expenses increased 9% to
$2,460 (12% of revenue) for the quarter ended June 30, 1999 from $2,251 (10% of
revenue) for the quarter ended June 30, 1998. Expenses for the first six months
were $4,393 in 1999 versus $4,285 in 1998. The increase in the second quarter of
1999 is mainly the result of increased sales activities and personnel targeting
Boundless' OEM and WBT markets.
The Company promotes its products using media advertising, direct mail,
telemarketing, public relations and cooperative channel marketing programs. The
Company's installed base of over five million units of General Display Terminals
is the primary target market for its new line of Viewpoint TC WBTs. The
Company's plan to reach this market is based on direct mail, telemarketing and
advertising and an aggressive public relations campaign, including several
domestic and international press tours. The Company will also participate in
several key trade shows during the remainder of 1999.
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General and Administrative Expenses - General and administrative expenses
increased to $1,725 (9% of revenue), from $1,610 (7% of revenue) for the three
months ended June 30, 1999 and 1998, respectively. Expenses for the six-month
period were $3,384 in 1999 versus $3,023 in 1998. The year-to-year increase is
mainly due to accruals related to employee bonus programs and to expensing the
estimated value of common stock options granted to Board members for services
provided to the Company.
Research and Development Expenses - Research and development expenses for the
second quarter increased 72% to $1,321 in 1999 from $770 in 1998. Expenses for
the six-month period ended June 30, 1999 were $2,395, compared to $1,638 in the
comparable period in 1998. The increase is related to development expenses
associated with the Company's WBT product family. Research and development
expenses are expected to exceed 1998 spending levels due to investment in
software development for the Company's WBTs as well as spending associated with
advanced development for Internet Appliances.
Other Charges - During the second quarter of 1999 the Company released Digital
warranty reserves amounting to $636 due to the expiration of the warranty
period. The same situation occurred in the second quarter of 1998 with a reserve
release in the amount of $325. Future releases of this nature are no longer
anticipated.
Interest Expense - Interest expense for the quarter ended June 30, 1999 was $422
compared to $676 for the comparable period in 1998. Interest expense for the six
months were $751 in 1999 versus $1,347 in 1998. This decrease was mainly due to
capitalized debt financing costs that were fully amortized in 1998 as non-cash
interest expense. Replacement debt financing costs were incurred in the second
quarter of 1999 but at a lower level than in previous years.
Other Nonrecurring Charges - Nonrecurring charges of $101 in both the second
quarter and six months of 1999 relate to final settlement of expenses, in excess
of accrued liabilities, for operations which were discontinued in 1996. No
future charges of this kind are anticipated.
Income Tax Expense - Income tax expense for the quarter ended June 30, 1999 was
$39 (38% of income before tax) compared to $323 (24% of income before tax) for
the comparable period in 1998. For the six months ended 1999 and 1998 income tax
expense was $461 and $782 respectively.
Net Income - For the quarter ended June 30, 1999, net income was $62, compared
to $1,005 (5% of revenue) for the comparable period in 1998. Net income for the
six months ended June 30 was $752 (2% of revenue) and $1,751 (4% of revenue) in
1999 and 1998, respectively.
Impact of Inflation - The Company has not been adversely affected by inflation
because technological advances and competition within the microcomputer industry
have generally caused prices of products sold by the Company to decline. The
Company has flexibility in its pricing and could, if necessary, pass along price
changes to most of its customers.
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<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The discussion below regarding liquidity and capital resources should be read
together with the information included in the Notes to Consolidated Financial
Statements.
As of June 30, 1999, the Company had working capital of $16,609 as compared to
$9,401 at December 31, 1998. Historically, the Company has relied on cash flow
from operations, bank borrowings and sales of its common stock to finance its
working capital, capital expenditures and acquisitions.
The Company is highly leveraged. As of June 30, 1999, the Company had tangible
net worth of $10,382 and total liabilities of $32,475. The Company's cash
requirements at June 30, 1999 included repayment of a revolving loan of $5,500
plus interest, a term loan in the amount of $4,000 plus interest payable in
twelve quarterly installments beginning June 1999 and a ten-year promissory note
in the amount of $6,750 consisting of monthly principal and interest payments
through July 1, 2009.
Borrowing under the revolving loan is based on a borrowing base formula of up to
80% of eligible receivables, plus 50% of delineated eligible inventory, plus 30%
of non-delineated eligible inventory. Up to $5,000 is available under the
revolving loan for letters of credit. As a result of the borrowing base formula,
the credit available to the Company could be adversely restricted in the event
of further declines in the Company's sales and increases in orders may not be
able to be financed under the Company's revolving credit line.
On April 14, 1999, Boundless and Chase Manhattan Bank ("Chase"), acting as
agent, signed an agreement for a new, three-year, $15,000 revolving credit
agreement. Terms of the new revolving credit agreement are substantially similar
to terms of the expired agreement, allowing for loans and letters of credit,
based upon the availability of collateral, generally a percentage of inventory
and accounts receivable as specified in the agreement. The revised credit
agreement also provides for a $4,000 term loan, payable in equal quarterly
installments plus accrued interest beginning June 1999, over a three-year
period.
On June 24, 1999, Boundless entered into an agreement with a commercial lender
to refinance an $8,000 note originally scheduled to mature in June 1999. The
loan is secured by a mortgage on the Boundless facility located in Hauppauge,
NY. The loan, which is in the principal amount of $6,750 and carries a fixed
interest rate of 7.75%, is being amortized over a 25-year period with a balloon
payment due on July 1, 2009. The monthly payments are approximately $50. To
induce the lender to make the loan, the Company executed and delivered a
guaranty of Boundless' obligations to the lender.
Net cash provided by operating activities for the six months ended June 30, 1999
was $1,300, due principally to net income of $752, an income tax refund of $555
and non-cash expenses (principally depreciation) of $2,660. These increases in
cash were partially offset by an increase in inventories of $1,370 and an
increase in trade receivables of $1,557. Net cash used in investing activities
was comprised of capital expenditures of $502. Net cash used in financing
activities included $3,606 to retire the Company's mandatorily redeemable
preferred stock and pay its remaining dividend which was funded from a $4,000
term loan with Chase. In addition, $8,000 was used to pay off the existing note
payable with NCR. A $6,750 mortgage loan from Independence Community Bank was
used to pay off NCR, with the balance of the funding coming from the Company's
revolving loan with Chase.
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<PAGE>
FORWARD-LOOKING INFORMATION MAY PROVE INACCURATE
This Form 10-Q contains forward-looking statements and information that are
based on management's beliefs as well as assumptions made by and information
currently available to management. When used in this document, the words
"anticipate," "believe," "estimate," "expect," and, depending on the context,
"will," and similar expressions are intended to identify forward-looking
statements. Such statements reflect the Company's current views with respect to
future events and are subject to certain risks, uncertainties and assumptions,
including the specific risk factors described in the Company's Form 10-K for the
year ended December 31, 1998. Should one or more of these risks or uncertainties
materialize, or should underlying assumptions prove incorrect, actual results
may vary materially from those anticipated, believed, estimated or expected. The
Company does not intend to update these forward-looking statements and
information.
YEAR 2000 COMPLIANCE
Computers, software and other equipment utilizing microprocessors that
use only two digits to identify a year in a date field may be unable to process
accurately certain date-based information referencing the year 2000. This is
commonly referred to as the "Year 2000 issue." The Company is addressing this
issue on several different fronts. With respect to products the Company offers
for sale, either to OEMs or through distribution, the Company has verified the
products are Year 2000 compliant. The Company has assigned a team to monitor
Year 2000 compliance. This team is charged with ensuring Year 2000 compliance
for all hardware and software products through its purchasing process, as well
as assessing Year 2000 readiness and risk to the Company with respect to the
compliance of its critical vendors and suppliers. Finally, the Company has a
team assigned to coordinate the Year 2000 program for its internal systems and
devices. At present, Year 2000 compliance of the Company's internal systems and
devices is scheduled to be substantially complete by July of 1999, with
continued testing of compliance throughout 1999. The total costs related to the
Company's Year 2000 program are not estimated to be material to the Company's
financial position or results of operations, and are charged to expense as
incurred. The total cost estimate does not include potential costs related to
any customer or other claims or the cost of internal software and hardware
replaced in the normal course of business. The total cost estimate is based on
the current assessment of the Company's Year 2000 program and is subject to
change as it progresses. Based on current information and assessment, the
Company does not believe that the Year 2000 issue discussed above as it relates
to products sold to customers or the Company's internal systems will be material
to its financial position or results of operations or that its business will be
adversely affected in any material respect. Nevertheless, achieving Year 2000
compliance is dependent on many factors, some of which are not completely within
the Company's control. Should either the Company's internal systems or one or
more critical vendors or suppliers fail due to Year 2000 issues, the Company's
business and its results of operations could be adversely affected.
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NEW ACCOUNTING STANDARD
SFAS No.133, "Accounting for Derivative Instruments and Hedging Activities"
establishes accounting and reporting standards for derivative instruments and
hedging activities. SFAS No. 133 requires that an entity recognizes all
derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. SFAS No. 133 is effective
for all fiscal quarters of fiscal years beginning after June 15, 1999. The
Company is assessing the impact that the adoption of SFAS No.
133 will have, if any, on its consolidated financial statements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The Company's exposure to market risk for changes in interest rates, relates
primarily to the Company's revolving credit facility and long-term debt
obligations. The Company manages this risk through utilization of interest rate
swap agreements in amounts not exceeding the principal amount of its outstanding
obligations. At June 30, 1999, two interest rate swap agreements, in the
principal amount of $4,000 and $3,667, respectively, were outstanding.
The Company places its investments with high credit quality issuers and, by
policy, is averse to principal loss and ensures the safety and preservation of
its invested funds by limiting default risk, market risk and reinvestment risk.
As of June 30, 1999 the Company's investments consisted of the investment of
excess cash balances in overnight time deposits offered by Chase Manhattan Bank
in London.
All sales arrangements with international customers are denominated in
U.S. dollars. These customers are permitted to elect payment of their next
month's orders in local currency based on an exchange rate provided one month in
advance from the Company. The Company does not use foreign currency forward
exchange contracts or purchased currency options to hedge local currency cash
flows or for trading purposes. Foreign currency transaction gains or losses have
not been material to the Company's results of operations.
PART II - OTHER INFORMATION
Item 5. Other Information
Effective May 26, 1999, the common stock of the Company was listed for trading
on the American Stock Exchange ("AMEX") under the ticker symbol "BND". As a
primary market, the AMEX listing automatically gives the Company Blue Sky
exemptions in all 50 states. Additionally, an AMEX listing also qualifies stock
trading above $5.00 per share for purchase on margin.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 10(a): Restatement, Extension, Assumption and Modification Agreement,
dated June 24, 1999, between Boundless Technologies, Inc. and Independence
Community Bank.
Exhibit 10(b): Restated Business Installment Promissory Note, dated June 24,
1999, from Boundless Technologies, Inc. to Independence Community Bank.
Exhibit 10(c): Restated Mortgage and Security Agreement, dated June 24, 1999,
between Boundless Technologies, Inc. and Independence Community Bank.
Exhibit 11: Statement Concerning Computation of Per Share Earnings is hereby
incorporated by reference to "Condensed Consolidated Statements of Operations"
in this Form 10-Q.
Exhibit 27: Financial Data Schedule.
(b) Reports on Form 8-K
None.
13 of 14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: August 12, 1999
Boundless Corporation
By: /s/Joseph Gardner
- ----------------------------------------
Joseph Gardner
Vice President and Chief Financial Officer
(Principal Accounting and Financial Officer)
14 of 14
<PAGE>
INDEX OF ATTACHED EXHIBITS
BOUNDLESS CORPORATION FORM 10-Q
Exhibit 10(a): Restatement, Extension, Assumption and Modification Agreement,
dated June 24, 1999, between Boundless Technologies, Inc. and Independence
Community Bank.
Exhibit 10(b): Restated Business Installment Promissory Note, dated June 24,
1999, from Boundless Technologies, Inc. to Independence Community Bank.
Exhibit 10(c): Restated Mortgage and Security Agreement, dated June 24, 1999,
between Boundless Technologies, Inc. and Independence Community Bank.
Exhibit 27: Financial Data Schedule.
RESTATEMENT, EXTENSION,
ASSUMPTION and MODIFICATION AGREEMENT
BOUNDLESS TECHNOLOGIES, INC.
to
Independence Community Bank
June 24, 1999
Premises: 100 Marcus Boulevard
Hauppauge, New York 11788
County of Suffolk
Block: 01
Lot: 005.000
Section: 181
District 0800
-and-
Block: 03
Lot: 002.002
Section: 181
District: 0800
<PAGE>
RESTATEMENT, ASSUMPTION,
EXTENSION and MODIFICATION AGREEMENT
AGREEMENT, made the 24th day of June, 1999, between INDEPENDENCE COMMUNITY BANK,
its successors and/or assigns, 179 Pacific Street, Brooklyn, New York 11201,
(sometimes hereinafter called the party of the first part or ICB), and Boundless
Technologies, Inc., 100 Marcus Boulevard, Hauppauge., New York 11788
(hereinafter sometimes referred to as the party of the second part or
"Borrower").
W I T N E S S E T H :
WHEREAS, the party of the first part is the holder of the following
mortgage (the "Mortgage") and the note secured thereby ( the "Note"):
Mortgage dated the 9th day of December, 1994 made by Applied Digital Data
Systems, Inc. in the principal amount of $8,000,000.00 and recorded in the
Suffolk County Clerk's office on the 22nd day of December, 1994 in Liber 18899,
Page 434; and assigned to Independence Community Bank in the reduced principal
amount of $6,750,000 by assignment dated June 22, 1999 to be recorded herewith.
WHEREAS, the Note secured by the Mortgage was made by SunRiver Acquisition
Corp., an affiliate of Borrower and the obligations under the Note are being
assumed by Borrower pursuant to the terms hereof.
WHEREAS, Independence Community Bank and Borrower have mutually agreed to
modify, restate and extend the terms of the Mortgage and the Note secured
thereby in the manner hereinafter appearing.
NOW, THEREFORE, in pursuance of said agreement and in consideration of the
sum of One Dollar and other valuable consideration each to the other in hand
paid, receipt of which is hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
Borrower hereby assumes all of the obligations of SunRiver Acquisition
Corp. under the Note.
THAT the lien of the Mortgage is modified and extended so that it shall
hereafter constitute a single lien, securing the principal sum of SIX MILLION
SEVEN HUNDRED FIFTY and NO/100 ($6,750,000) DOLLARS and interest, upon the real
property known as 100 Marcus Boulevard, more particularly described in Schedule
A hereto ("Premises").
THAT the total indebtedness as of June 24th, 1999 with respect to the
Mortgage and the Note secured thereby is $6,750,000.00.
THAT the time of payment of said principal sum secured by the Mortgage and
Note secured thereby, as modified by this Agreement is hereby extended, and/or
modified so that the same shall be due and payable in full on July 1, 2009.
THAT the Note and/or other agreements evidencing the obligations secured by
the Mortgage, shall be substituted for and replaced by a substitute note between
the party of the first part and the party of the second part of even date
herewith in the principal amount of $6,750,000.00, a copy of which is annexed
hereto as Exhibit B (the "Substitute Note") which shall substitute for and
replace, but not cancel the indebtedness of the Note and/or other agreements
evidencing the obligations secured by the Mortgage. All references in the
Mortgage to the "Note" shall be deemed to be references to the Substitute Note.
THAT, the party of the second part shall satisfy all payment obligations
under the Mortgage and the Note secured thereby by making all payments required
under the Substitute Note and the Mortgage (as restated by the Restated
Mortgage, as such term is defined below) and shall pay interest on the amount
owing on the Mortgage and Substitute Note secured thereby at the interest rate
set forth in the Substitute Note. The party of the second part also shall comply
with all of the terms of the Substitute Note secured by the Mortgage (as
restated) and shall comply with all of the terms of the Mortgage (as restated).
2
<PAGE>
THAT, the party of the second part shall satisfy the Mortgage (as restated)
and the Substitute Note secured thereby by making payments of principal and
interest as required therein.
AND, upon the aforesaid considerations and in consideration of the
modification, restatement and extension provided herein, the Borrower does
hereby assume, covenant and agree to pay said principal sum and interest as
above set forth as the same is hereby extended, restated and modified, and to
comply with the other terms of the Substitute Note and Mortgage (as restated).
The Borrower further covenants with the party of the first part as follows:
1. That the Borrower will pay the indebtedness as hereinbefore provided.
2. The Mortgage shall be restated by and Mortgagor shall comply with all of
the terms and conditions of the $6,750,000.00 Restated Mortgage dated June 24,
1999 annexed hereto as Exhibit C which Mortgage restates, replaces and amends
the terms of the Mortgage (the "Restated Mortgage").
3. That the Restated Mortgage shall constitute a complete amendment and
restatement of the terms of the Mortgage and shall substitute for and replace
all of the terms of the Mortgage. The Restated Mortgage shall be deemed
incorporated herein by reference and shall form part of the agreement of the
parties hereto as if fully set forth at length herein. That the principal and
interest hereby agreed to be paid shall be a lien on the Premises and shall be
evidenced by the Substitute Note and secured by the Mortgages as restated,
modified and extended herein. Any rights granted to the party of the first part
in the within Agreement and the Mortgage shall be supplemental to and not in
lieu of any rights granted to the party of the first part in the Restated
Mortgage.
4. This Agreement may not be changed or terminated orally. The covenants
contained herein shall be binding on the Borrower, their heirs, personal
representatives, successors and assigns and all subsequent owners,
encumbrancers, tenants and subtenants of the premises, and shall inure to the
benefit of the party of the first part, the personal representatives, successors
and assigns of the party of the first part and all subsequent holders of the
Mortgages as restated herein. The word "party" shall be construed as if it reads
"parties" whenever the sense of this Agreement so requires. 5. This Agreement
shall be governed by and construed in accordance with laws of the State of New
York.
IN WITNESS WHEREOF, this Agreement has been duly executed hereto the day
and year first above written.
In Presence of:
INDEPENDENCE COMMUNITY BANK
By: /s/
----------------------------
George Lewis
First Vice President
Boundless Technologies, Inc.
By: /s/
---------------------------
Joseph Gardner
Vice President
3
<PAGE>
SCHEDULE A
PARCEL I
All that certain plot, piece or parcel of land with the buildings and
improvements thereon erected, situate, lying and being in the Town of Smithtown,
County of Suffolk and State of New York, being part of Lot 6 as shown on a
certain map entitled "Map of Marcus Industrial Park at Smithtown" and filed in
the Office of the Clerk of Suffolk County of October 4, 1967 as Map No. 4961
being bounded and described as follows:
BEGINNING at a point on the westerly side of Marcus Boulevard distant 333 feet
southerly from the corner formed by the intersection of the westerly side of
Marcus Boulevard with the southerly side of Arkay Drive:
RUNNING THENCE South 3 degrees 17 minutes 15 seconds East along the westerly
side of Marcus Boulevard 438.23 feet;
THENCE South 86 degrees 42 minutes 45 seconds West 690 feet;
THENCE North 3 degrees 17 minutes 15 seconds West along land now or formerly of
ITT Communications, Inc. 448.24 feet;
THENCE North 86 degrees 42 minutes 45 seconds East 254 feet;
THENCE South 3 degrees 17 minutes 15 seconds East 10.01 feet;
THENCE North 86 degrees 42 minutes 45 seconds East 436 feet to the westerly side
of Marcus Boulevard and the point or place of BEGINNING.
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<PAGE>
SCHEDULE A
PARCEL II
All that certain plot, piece or parcel of land with the buildings and
improvements thereon erected, situate, lying and being at Hauppauge, in the Town
of Smithtown, County of Suffolk and State of New York, being part of Lot No. 6
on a certain map entitled "Map of Suffolk County Business Center Section No. 2"
filed in the Office of the Clerk of the County of Suffolk on August 31, 1978 as
Map No. 6715 bounded and described as follows:
BEGINNING at a point on the southerly side of Arkay Drive, also known as Arnold
Drive, distant 670.00 feet westerly along the same from the northwesterly end of
the curve connecting said southerly side of Arkay Drive with the westerly side
of Marcus Boulevard; and
RUNNING THENCE southerly along the westerly map line of "Marcus Industrial Park"
south 3 degrees 15 minutes 52 seconds East, a distance of 791.23 feet;
THENCE westerly, south 86 degrees 44 minutes 08 seconds West, a distance of
450.00 feet;
THENCE northerly, North 3 degrees 15 minutes 52 seconds West, a distance of
791.23 feet to the southerly side of Arkay Drive; and
THENCE easterly, North 86 degrees 44 minutes 08 seconds East, along the
southerly side of Arkay Drive, a distance of 450.00 feet to the point or place
of BEGINNING.
* * * *
Exhibit 13 (Restated Promissory Note) and Exhibit 14 (Restated Mortgage) to this
Restatement, Assumption, Extension and Modification Agreement are filed as
separate exhibits to the registrant's Form 10-Q.
5
RESTATED BUSINESS INSTALLMENT PROMISSORY NOTE
$6,750,000.00 Date: June 24, 1999
For value received, the undersigned (each of them if more than one called
the "Borrower") unconditionally, jointly and severally promise(s) to pay
Independence Community Bank (the "Bank") to order at 179 Pacific Street,
Brooklyn, New York 11201, the principal sum of SIX MILLION SEVEN HUNDRED FIFTY
THOUSAND and no/100 ($6,750,000.00) Dollars. The undersigned promise(s) to pay
interest on the amount owing on this Note from the date hereof until this Note
is paid in full at a fixed rate per annum equal to 7.75%. The undersigned shall
satisfy this Note by making consecutive monthly payments of principal and
interest on the basis of a 25 year amortization schedule. Each monthly payment
shall be in the amount of $50,984.69. Each monthly payment shall be due on the
first day of each month commencing on August 1, 1999 through and including June
1, 2009. A final balloon payment of all outstanding principal plus accrued
interest, and any other amounts due under this Note shall be due on July 1,
2009. Any monthly payment of principal or interest not paid within 10 days of
the date due shall be subject to a 5% late charge. Additionally, notwithstanding
the foregoing, upon the entire balance of this Note becoming due (whether at
stated maturity or by acceleration) same shall bear interest from and including
one day following the date due to but excluding the date paid in full at a rate
per annum equal to 3% above the interest rate provided for in this Note, such
interest to be payable ON DEMAND and on any payment of such principal. The
undersigned shall simultaneously herewith make a payment of interest for the
period June 24, 1999 through June 30, 1999. Interest shall be calculated on the
basis of a year of 365 days for the actual number of days elapsed. In no event
shall the interest rate hereunder exceed the maximum rate permitted by
applicable law. Any payment in excess of such maximum rate shall be deemed a
prepayment of principal.
The undersigned has the right to make payments of principal, in whole
or in part, at any time before they are due without penalty. The undersigned
shall notify the Bank in writing when the undersigned is making a prepayment.
Any sums submitted as prepayment of principal will first be applied to accrued
interest and the remainder to reduce the principal owed on this note. Any sums
submitted as prepayment of principal will not change the undersigned's
obligation to make regular payments of interest and principal according to the
terms of the Note. Any amount of the Note that is repaid and/or any amount of
principal that is prepaid may not be reborrowed.
If any payment of this Note becomes due and payable on a Saturday,
Sunday or other day on which commercial banks are authorized to close under the
laws of the State of New York, the maturity hereof shall be extended to the next
succeeding business day and interest hereunder shall be payable during such
extension at the rate specified in this Note.
1
<PAGE>
If any of the following events of default shall occur and be
continuing after the expiration of ten (10) days written notice (30 days in the
event of defaults that cannot be cured by the payment of money, however, if such
default cannot reasonably be cured in said 30 day period, and the undersigned is
diligently pursuing a cure, the undersigned shall have an additional reasonable
period to cure) : (a) the undersigned shall fail to pay the principal of, or
interest on, this Note, or any other amount payable under this Note, as and when
due and payable; (b) any representation or warranty made or deemed made by the
undersigned or by any third party supporting or liable with respect to this Note
(whether by guaranty, subordination, grant of security or any other credit
support, a "Third Party") in any document evidencing the obligations of the
undersigned or of a Third Party relating to this Note or the loan evidenced
hereby (this Note and such documents being the "Facilits contained in any
certificate, document, opinion, financial or other statement furnished at any
time under or in connection with the Facility Documents, shall prove to have
been incorrect in any material respect on or as of the date made or deemed made;
(c) the undersigned or any Third Party shall fail to perform or observe any
term, covenant or agreement contained in any Facility Document on its part to be
performed or observed; (d) n/a; (e) the undersigned or any Third Party: (i) n/a;
or (ii) shall file a petition in bankruptcy or for any relief under any law of
any jurisdiction relating to reorganization, arrangement, readjustment of debt,
dissolution or liquidation; or (iii) shall have any such petition filed against
it and the same shall remain undismissed for a period of 60 days; or (v) shall
have had a receiver, custodian or trustee appointed for all or a substantial
part of its property; (f) the undersigned or any Third Party shall cease doing
business ; (g) any Third Party Facility Document shall at any time and for any
reason cease to be in full force and effect or shall be declared null and void,
or its validity or enforceability shall be contested by the relevant Third Party
or such Third Party shall deny it has any further liability or obligation under
any Facility Document; (h) any security agreement (whether by the undersigned or
a Third Party) granting security for The Facility Documents shall at any time
and for any reason cease to create a valid and perfected and first priority
security interest in and to the property purported to be subject to such
agreement or shall cease to be in full force and effect or shall be declared
null and void, or the validity or enforceability of any security agreement shall
be contested by any party to such security agreement, or such party shall deny
it has any further liability or obligation under such agreement or any such
party shall fail to perform any of its obligations under such agreement; (i)
n/a; (j) the undersigned or any Third Party security interest in the security
granted under the Facility Documents except in favor of the Bank; (k) the
undersigned or any Third Party shall fail to furnish financial information in
form satisfactory to the Bank; and (1) n/a: THEN, in any such case, unless the
Bank shall otherwise elect by notice to the undersigned, the unpaid principal
amount of this Note, together with accrued interest, shall become forthwith due
and payable.
The Bank shall have a continuing lien and/or right of set-off on
deposits (general and special) and credits with the Bank of every Borrower and
endorser, and may apply all or part of same to any obligations of said Borrower
or endorser to the same (whether contingent or unmatured), at any time or times,
without notice.
The undersigned agree(s) to reimburse the Bank on demand for all
costs, expenses and charges (including reasonable legal fees) in connection with
the enforcement of this Note.
2
<PAGE>
Time for payment extended by law shall be included in the computation
of interest.
No term or provision of this Note may be changed without the prior
written consent of the Bank.
The undersigned waive(s) presentment, notice of dishonor, protest and
any other notice or formality with respect to this Note.
The undersigned consent(s) to the nonexclusive jurisdiction and venue
of the state or federal courts located in the City of New York. The undersigned
and any endorser waive(s) any right they may have to jury trial and waive any
right they may have to assert a set-off or counterclaim of any nature unless
mandatory.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
Address for Notices:
- ---------------------------
Boundless Technologies, Inc.
By:
--------------------------
3
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.
1
<PAGE>
"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.
2
<PAGE>
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.
3
<PAGE>
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").
4
<PAGE>
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 policy or policies of insurance. Each insurance company concerned is
hereby authorized and directed to make payment under such insurance in excess of
$250,000, including return of unearned premiums, directly to Mortgagee instead
of to Mortgagor and Mortgagee jointly, and Mortgagor irrevocably appoints
Mortgagee as Mortgagor's attorney-in-fact to endorse any draft therefor.
(d) Intentionally Deleted.
(e) Any monies in excess of $250,000 received as payment for
loss under any insurance shall be paid over to the Mortgagee to be applied
(provided, however, as set forth in paragraph 108(h) below, Mortgage will not
unreasonably refuse or delay consent to utilize such proceed for restoration of
the Improvements) of the Mortgagee to the prepayment of the Note and/or for the
restoration of the Improvements. Receipt by Mortgagee and application in
reduction of indebtedness of any insurance proceeds less than the full amount of
the then outstanding interest, principal and other sums due under the Note and
this Mortgage, shall not defer, alter or modify Mortgagor's obligation to
continue to pay the regular installments of principal, if any, interest on the
outstanding principal balance and other charges specified in the Note and
herein.
(f) Intentionally Deleted.
(g) Mortgagor shall not take out separate insurance concurrent
in form or contributing in the event of loss with that required to be maintained
under this Section 1.08, unless Mortgagee has approved the insurance company and
the form and content of the insurance policy, including, without limitation, the
naming thereon of Mortgagee as a named insured with loss payable to Mortgagee
under a standard mortgagee endorsement of the character above described and the
inclusion of a provision therein obligating said insurance company to provide
Mortgagee with notice thirty (30) days prior to cancellation, lapse or amendment
of any policy. Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to Mortgagee the
policy or policies of such insurance.
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(h) If a part of the Mortgaged Property shall be destroyed by
fire, flood or other casualty, and if the Mortgagee shall have decided to permit
Mortgagor to use the insurance proceeds for the restoration of the Premises
(which permission shall not be unreasonably withheld or delayed), then Mortgagor
may use such proceeds to restore the Mortgaged Property provided that (i) the
net insurance proceeds are sufficient in the opinion of the Mortgagee on advice
from its architect to restore the Mortgaged Property, or if such proceeds are
insufficient to restore the Mortgaged Property, Mortgagor shall have deposited
with the Mortgagee cash in an amount equal to the difference between the cost of
such restoration and such proceeds, (ii) there shall exist no Event of Default
under this Mortgage, and (iii) in the opinion of the Mortgagee on advice from
its architect the Mortgaged Property can be completely restored within 365 days
from the occurrence of such casualty or by the maturity date of the Note,
whichever occurs first. In the event insurance proceeds are used to repair or
restore the Mortgaged Property pursuant to this Section, Mortgagor shall obtain
at its sole cost and expense, an architect who shall submit plans to the
Mortgagee for the repair or restoration of the Mortgaged Property indicating
that such repair or restoration can be completed within the period provided for
herein, together with a budget itemizing the projected costs of such repair or
restoration. Said plans and budget are subject to the approval of the Mortgagee
which approval shall not be unreasonably withheld or delayed. Mortgagor shall
also obtain and post, at its sole cost and expense, all necessary Federal, State
and local permits and approvals prior to the commencement of such repair or
restoration. Mortgagor agrees that all insurance proceeds to be used to repair
or restore the Mortgaged Property shall be held by the Mortgagee and disbursed
periodically: (i) on advice from the Mortgagee's architect (who shall be
employed by Mortgagee at Mortgagor's sole expense) that the work completed or
materials installed conform to said budget and plans, as approved by the
Mortgagee; and (ii) upon presentment of receipted bills and releases
satisfactory to the Mortgagee. The expenses incurred by the Mortgagee, including
reasonable architects' and attorneys' fees, and all soft and hard costs in
connection with such restoration, shall be paid by Mortgagor to the extent
insurance proceeds are insufficient to pay same. At no time shall the Mortgagee
be obligated to disburse any funds if the undisbursed balance is, in the
reasonable opinion of the Mortgagee based on advice from its architect,
insufficient to timely complete the restoration of the Mortgaged Property free
and clear of all liens unless adequate security is posted. Mortgagor agrees to
post such bonds, obtain such guaranteed maximum price general contract agreement
and/or enter into such agreements and arrangements as the Mortgagee may require
to insure lien-free completion of such repairs or restoration by the end of the
period provided herein for completion of such repairs or restoration.
Section 1.09 (a) In the event the Mortgaged Property or any part
thereof or interest therein, be taken or damaged by eminent domain, alteration
of the grade of any street, or other injury to or materially decrease in the
value of the Mortgaged Property, by reason of any public or quasi-public
improvement or condemnation proceeding, or in any other similar manner
("Condemnation"), or should Mortgagor receive any notice or other information
regarding such Condemnation or a proposed Condemnation, Mortgagor shall give
prompt written notice thereof to Mortgagee.
(b) Mortgagee shall be entitled to receive all compensation,
awards and other payments or relief up to the amount of this Mortgage payable as
a result of any such Condemnation, and shall be entitled, at its option, to
participate in any Condemnation proceedings. The Mortgagor shall execute and
deliver to the Mortgagee, promptly upon request therefor, all instruments
necessary to enable the Mortgagee to participate in any such proceedings,
employing on Mortgagee's behalf, at Mortgagor's sole expense, such counsel as
Mortgagee shall select. Mortgagee shall also be entitled to join in any
compromise or settlement in connection with any such Condemnation. All such
compensation, awards, damages, rights of action and proceeds awarded to
Mortgagor (the "Proceeds") are hereby assigned to Mortgagee and Mortgagor agrees
to execute such further assignments of the Proceeds as Mortgagee may require.
Mortgagee shall be under no obligation to question the amount of any such award
or compensation and may accept the same in the amount paid.
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(c) Intentionally Deleted.
(d) Receipt by Mortgagee and application in reduction of
indebtedness of any Proceeds less than the full amount of the then outstanding
Liabilities shall not defer, alter or modify Mortgagor's obligation to continue
to pay the regular installments of principal, interest on the outstanding
principal balance and other charges specified in the Note and herein.
(e) If prior to the receipt of the Proceeds by Mortgagee the
Premises shall have been sold on foreclosure of this Mortgage, Mortgagee shall,
nevertheless, have the right to receive the Proceeds and to retain, for its own
account, (i) an amount equal to the reasonable counsel fees, costs and
disbursements incurred by Mortgagee in connection with collection of the
Proceeds and not repaid by Mortgagor and (ii) the full amount of all such
Proceeds, if Mortgagee is the successful purchaser at the foreclosure sale, to
the extent of amounts owed under the Note or hereunder.
Section 1.10 If Mortgagor shall fail to perform any of the covenants
contained herein or any covenant contained in the Note or any other Loan
Document beyond notice and the expiration of the applicable grace period, the
Mortgagee may upon ten (10) days prior written notice, but shall not be
obligated to, make advances and/or disbursements to perform the same, and all
sums so advanced and/or disbursed shall be a lien upon the Mortgaged Property
and shall be secured hereby. Mortgagor will repay on demand all sums so advanced
and/or disbursed with interest at the Default Rate from the date of making such
advance and/or disbursement until such sums have been repaid. The provisions of
this Section 1.10 shall not prevent any default in the observance of any
covenant contained herein or in the Note or any other Loan Document from
constituting an Event of Default.
Section 1.11 (a) Mortgagor will keep adequate records and books of
account in accordance with generally accepted accounting principles and will
permit the Mortgagee, by its agents, accountants and attorneys, to visit and
inspect the Premises and examine its records and books of account and to discuss
its affairs, finances and accounts with Mortgagor upon prior reasonable notice
during business hours as may be requested by the Mortgagee.
(b) Intentionally Deleted.
(c) The Mortgagor, within five (5) business days upon request
in person or within ten (10) days upon request by mail, will furnish a written
statement duly acknowledged of the amount due whether, to the best knowledge of
Mortgagor, for principal or interest on this Mortgage and whether to the best
knowledge of Mortgagor, any offsets or defenses or counterclaims exist against
the Liabilities and, if any are alleged to exist, the amount and nature of each
such offset or defense or counterclaim shall be set forth in full detail.
(d) The Mortgagor will deliver to the Mortgagee, within five
(5) business days upon request in person or within ten (10) business days upon
request by mail, receipts for the payment of all real property taxes, water and
sewer rents, and assessments imposed upon or assessed against the Premises and
in addition, evidence of payment of all premiums for insurance required under
this Mortgage.
Section 1.12 Mortgagor will not threaten, commit, permit or suffer any
waste to occur on or to the Mortgaged Property or any part thereof or
structurally alter or demolish the Mortgaged Property or any part thereof in any
manner or make any change in its use or any change which will in any way
increase any fire or other hazards arising out of construction or operation of
the Mortgaged Property. Mortgagor will, at all times, maintain the Mortgaged
Property in good operating order and condition and will promptly make, from time
to time, all repairs, renewals, replacements, additions and improvements in
connection therewith which are needful or desirable to such end. Any
improvements which may now or hereafter be located on the Land shall not be
removed, demolished or substantially altered, nor shall any Chattels be removed,
without the prior written consent of Mortgagee, except where the appropriate
replacements free of superior title, liens and claims are immediately made of
value at least equal to the value of the Chattels removed, in which event
Mortgagor shall be entitled to proceeds of the Chattels so removed.
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Section 1.13 Except where inconsistent with the laws of the State of
New York, Mortgagor agrees that if any action or proceeding be commenced,
including an action to foreclose this Mortgage or to collect the indebtedness
hereby secured, to which action or proceeding the Mortgagee is made a party by
reason of the execution of this Mortgage or the Note which it secures, or in
which it becomes necessary to defend or uphold the lien of this Mortgage, all
sums paid by the Mortgagee for the expense of any litigation to prosecute or
defend the transaction and the rights and liens created hereby (including
reasonable attorneys' fees) shall be paid by Mortgagor together with interest
thereon from date of payment by Mortgagee at the Default Rate. All such sums
paid and the interest thereon shall be immediately due and payable, shall be a
lien upon the Mortgaged Property, and shall be secured hereby as shall be all
such sums incurred in connection with enforcement by Mortgagee of its rights
hereunder or under any other Loan Document.
Section 1.14 Mortgagor covenants that the Mortgaged Property is now,
and until the Liabilities are fully repaid, will be, provided with adequate gas,
sanitary sewer, storm sewer, electricity and water facilities and Mortgagor will
at all times comply with all applicable laws and regulations including
environmental regulations.
Section 1.15 If the interest of the Mortgagee in the Mortgaged Property
or ae thereon shall be attacked, directly or indirectly, or if legal proceedings
shall be instituted against Mortgagor or Mortgagee with respect thereto or
against Mortgagor, Mortgagor, upon its learning thereof, will promptly give
written notice thereof to the Mortgagee and Mortgagor will, at Mortgagor's cost
and expense, exert itself diligently to cure, or will cause to be cured, any
defect that may have developed or be claimed to exist, and will take all
necessary and proper steps for the protection and defense thereof and will take,
or will cause to be taken, such action as is appropriate to the defense of any
such legal proceedings, including, but not limited to, the employment of counsel
and the prosecution and defense of litigation.
Section 1.16 Intentionally Deleted.
Section 1.17 In no event shall the Mortgagor do or permit to be done,
or omit to do or permit the omission of, any act or thing, the doing, or
omission, of which would materially impair the security of this Mortgage or
materially impair the value of the Mortgaged Property or any part thereof.
Section 1.18 Mortgagor will not directly or indirectly, by transfer,
mortgage, conveyance, or sale of an interest in Mortgagor permit, do or suffer
the assignment, lease, transfer, sale, conveyance or encumbrance of the
Mortgaged Property, or any part thereof or any interest therein, without the
prior written consent of the Mortgagee. While the Loan is outstanding, neither
the structure nor the ownership of Mortgagor may be changed without the express
written consent of the Mortgagee.
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Section 1.19 Intentionally Deleted.
Section 1.20 Mortgagee may appear in and defend any action or
proceeding at law or in equity or in bankruptcy purporting to affect the
Premises or the security hereof or the rights and powers of Mortgagee, and any
appellate proceedings, and in such event Mortgagor shall pay all of the
Mortgagee's costs, charges and expenses, including cost of evidence of title and
reasonable attorneys' fees incurred in such action or proceeding. All costs,
charges and expenses so incurred, together with interest thereon at the Default
Rate from the date of payment of same by Mortgagee as aforesaid, shall be
secured by the lien of this Mortgage and shall be due and payable upon demand.
Section 1.21 Mortgagor will promptly cure any municipal and other
violations affecting the Mortgaged Premises and deliver dismissal certificates
in respect of such violations to Mortgagee. In the event such violations are not
cured and such dismissal certificates are not delivered to Mortgagee within 30
days of any notice by Mortgagee to Mortgagor, or if not capable of cure within
30 days, if Mortgagor has not commenced such cure and is not diligently
prosecuting the same, then Mortgagee may cure same at Mortgagor's expense and
the cost of curing such violations shall be payable to Mortgagee on demand and
shall be secured by this Mortgage.
Section 1.22 (a) Mortgagor will perform and comply promptly with, and
cause the Premises to be maintained, used and operated in accordance with, all
applicable federal, state and local laws pertaining to air and water quality,
hazardous waste, waste disposal, air emissions and other environmental matters.
If Mortgagor receives any notice that Mortgagor or the Premises is in default
under or is not in compliance with any of the foregoing, or notice of any
proceeding initiated under or with respect to any of the foregoing, Mortgagor
will promptly furnish a copy of such notice to Mortgagee.
(b) Mortgagor hereby represents and warrants that neither
Mortgagor nor, to the best of Mortgagor's knowledge, any previous owner of the
Premises used, generated, stored or disposed of, on, under or about the Premises
any hazardous waste, toxic substances or related materials (hereafter referred
to as "Hazardous Materials") in violation of environmental laws. For the
purposes of this Agreement, Hazardous Materials shall include, but shall not be
limited to, any substance, material, or waste which is or becomes regulated by
the State or local government authority or the United States Government. The
term "Hazardous Materials" herein includes, without limitation, any material or
substance which is listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) as amended from time to time, and any
material or substance regulated as a hazardous material under applicable
federal, state or local law, rule or regulation.
(c) Mortgagor covenants that it shall keep or cause the
Premises to be kept free of Hazardous Materials and not cause or permit the
Premises to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose, produce or process Hazardous Materials, except in compliance
with all applicable Federal, State and local laws or regulations.
(d) Mortgagor covenants to ensure compliance by all operators
and occupants of the Premises with all applicable Federal, State and local laws,
ordinances, rules and regulations and will ensure that all such operators and
occupants obtain and comply with any and all required approvals, registrations
or permits.
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(e) Mortgagor shall, upon the reasonable request of Mortgagee,
conduct and complete all investigations, studies, samplings and testings
relative to Hazardous Materials at or affecting the Premises.
(f) Mortgagor shall defend, indemnify, and hold harmless
Mortgagee, its employees, agents, officers and directors from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of or in any way related to Hazardous Materials at or affecting the
Premises or the soil, water, vegetation, buildings, personal property, persons,
animals or otherwise and any personal injury (including wrongful death) or
property damage arising out of or related to such Hazardous Materials excluding
any acts of Mortgagee or its employees, agents, contractors or invitees.
(g) Foreclosure shall not operate as a discharge of
Mortgagor's engagements as to Hazardous Materials; and in the event Mortgagor
tenders a deed in lieu of foreclosure, Mortgagor shall deliver the Premises to
Mortgagee (or its designee) free of any and all Hazardous Materials.
(h) In the event Mortgagor does not timely perform any of the
above obligations, Mortgagee may upon ten (10) days prior written notice to
Mortgagor perform said obligations at the expense of Mortgagor and such expense
shall be added to the amount secured by the lien of this Mortgage.
(i) If at any time it is determined that there are any toxic
and/or Hazardous Materials located on the Premises, Mortgagor shall diligently
commence to take such action, at its sole expense, to comply with all
environmental requirements pertaining to such materials. Failure of Mortgagor to
diligently comply with all environmental requirements of Federal, state or local
law, statute, ordinance or regulation, rule, court or administrative order or
decree, or private agreement, shall constitute and be a default under this
Mortgage and Mortgagee, in lieu of foreclosure, shall have the option to require
specific performance of Mortgagor's obligations hereunder.
Section 1.23 The Mortgagor will not, unless required by law, consent
to, join in, permit or allow any change in the zoning laws or ordinances
relating to or affecting the Premises and will promptly notify the Mortgagee of
any changes to the zoning laws.
Section 1.24 The Mortgagor, as further security for the payment of said
indebtedness and in addition to all the rights and remedies otherwise available
to the Mortgagee under the Notes and Mortgages, grants to the Mortgagee a
security interest, under the Uniform Commercial Code as in effect in the State
of New York in and to the Chattels and all equipment, fixtures, chattels and
articles of personal property of every kind now or hereafter attached to or used
in connection with the Premises and owned by Mortgagor. Following an Event of
Default by the Mortgagor in any of the terms, covenants and/or obligations
contained herein or in the Note or in any of the other Loan Documents, the
Mortgagee shall have, in addition to all the other rights and remedies allowed
by Law, the rights and remedies of a secured party under the Uniform Commercial
Code as in effect at that time. The Mortgagor further agrees that the security
interest created hereby also secures all expenses of the Mortgagee (including
reasonable expenses for legal services of every kind, and cost of any insurance,
and payment of taxes or other charges) incurred in or incidental to, the
custody, care, sale or collection of, or realization upon, any of the property
secured hereby or in any way relating to the enforcement or protection of the
rights of the Mortgagee hereunder.
Section 1.25 The Mortgagor warrants and covenants that the Premises are
and will continue to be in compliance with all applicable local, County and
State laws and regulations and all building, housing and fire codes, rules and
regulations. The Mortgagor further warrants and covenants that in the event that
the Mortgagor shall obtain notice that the Premises are in violation of any of
the aforesaid municipal laws, regulations or building, housing or fire codes,
rules or regulations, whether as a result of a search of the public records or
otherwise, Mortgagor shall cure such violations in a reasonably diligent manner.
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ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.01 The following shall constitute Events of Default ("Events
of Default") under this Mortgage following 10 days prior written notice (30 days
in the event of non-monetary defaults unless same cannot be cured within said 30
days in which case provided Mortgagor takes diligent steps to cure same in a
commercially reasonable time frame, Mortgagor shall have such additional time to
cure said defaults) and an opportunity to cure within said period:
(a) if the Mortgagor or any Guarantor shall fail to pay when
due any installment of interest or principal or any other sums payable under
this Mortgage, Note, or any other Loan Document or under any other document or
agreement between Mortgagee and Mortgagor or any Guarantor; or
(b) if default shall be made in the due observance or
performance of any covenant, term, obligation, condition or agreement on the
part of Mortgagor or Guarantor contained herein or in any other Loan Document;
or
(c) if any representation or warranty made by the Mortgagor or
Guarantor herein or in any other Loan Document, or if any certificate or
statement delivered to Mortgagee or by Mortgagor in connection with the Loan
shall be incorrect or misleading to an extent deemed by Mortgagee, in its
reasonable judgment, to be substantial and material; or
(d) if an Event or Default shall have occurred under the Note
or any other Loan Document;
(e) if the Mortgaged Property or any material part thereof shall be
condemned; or
(f) if any easement over, across, under or otherwise affecting
the Mortgaged Property or any portion thereof shall be granted or released
without the Mortgagee's prior written consent or if there shall be a material
default by Mortgagor under any easement, covenant or restriction affecting the
Premises or any portion thereof or if any easement in favor of the Premises or
any portion thereof shall be terminated or modified; or
(g) if the Mortgagor shall assign the rents from any lease for
all or a part of the Premises, without the prior written consent of the
Mortgagee or shall consent to the cancellation or surrender of any such lease,
now existing or hereafter made, having an unexpired term of one year or more,
without the prior written consent of the Mortgagee, which consent or denial
thereof shall not be unreasonably delayed (unless, after notice to Mortgagee,
such cancellation or surrender shall be in connection with the substitution of a
new tenant on terms not less favorable than the terms of such canceled or
surrendered lease) or shall modify any such lease so as to shorten the unexpired
term thereof, or so as to decrease the amount of the rent payable thereunder, or
shall in any other manner materially impair the security of the Mortgagee for
the payment of the debt secured by the Mortgage; or
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(h) if there exists any actual or threatened in writing
demolition or removal of any building, or any portion thereof, erected or to be
erected upon the Premises, or if the buildings on the Premises are not
maintained in reasonably good repair for 30 days after notice thereof has been
given to Mortgagor or if, without the Mortgagee's written consent, any
structural alteration in, or addition to, any building or structure on the
Premises shall be made or any change shall occur in the use or occupancy of the
Premises from their present use or occupancy; or
(i) if the Premises or any part thereof are further mortgaged,
pledged or otherwise encumbered without Mortgagee's prior written consent; or
(j) if the Mortgagor shall renovate (other than nonstructural
renovations which are permitted hereunder), demolish or commence any structural
alteration on the Premises or any part thereof without obtaining the prior
written consent of the Mortgagee which consent shall not be unreasonably
withheld or delayed; or
(k) if the Mortgagor or any Guarantor fails to deliver
financial statements, tax returns and other financial information pursuant to
the terms of this Mortgage or the Loan Documents.
Section 2.02 Upon the occurrence of any such Event of Default, the
Mortgagee, without notice or presentment, each of which are hereby waived by
Mortgagor, may take such action as it deems advisable to protect and enforce its
rights against the Mortgagor and in and to the Premises including but not
limited to, the following actions, each of which may be pursued concurrently or
otherwise at such time and in such order as the Mortgagee may determine.
(a) Upon the occurrence of an Event of Default, the Mortgagor
may declare the entire principal of the Note then outstanding (if not then due
and payable), and all accrued and unpaid interest thereon, to be due and payable
immediately, and upon any such declaration the principal of the Note and said
accrued and unpaid interest shall become and be immediately due and payable,
anything in the Note or in this Mortgage to the contrary notwithstanding;
(b) Upon the occurrence of any such Event of Default, the
Mortgagee may enter into and upon all or any part of the Premises, and, having
and holding the same, may use, operate, manage and control the Mortgaged
Property or any part thereof and conduct the business thereof, either personally
or by its superintendents, managers, agents, servants, attorneys or receivers;
and likewise, from time to time, at the expense of Mortgagor, Mortgagee may make
all necessary or proper repairs, renewals and replacements and such useful
alterations, additions, betterments and improvements thereto and thereon as to
it may deem advisable in its reasonable judgment; and in every such case
Mortgagee shall have the right to manage and operate the Mortgaged Property and
to carry on the business thereof and exercise all rights and powers of Mortgagor
with respect thereto either in the name of Mortgagor or otherwise as Mortgagee
shall deem best; and Mortgagee shall be entitled, with or without entering into
or upon the Premises, to collect and receive all gross receipts, earnings,
revenues, rents, maintenance payments, issues, profits and income of the
Mortgaged Property and every part thereof, all of which shall for all purposes
constitute property of Mortgagee; and, after deducting the reasonable expenses
of conducting the business thereof and of all maintenance, repairs, renewals,
replacement, alterations, additions, betterments and improvements and amounts
necessary to pay taxes, assessments, insurance and prior or other proper charges
upon the Mortgaged Property or any part thereof, as well as just and reasonable
compensation for the services of Mortgagee and for all attorneys, counsel,
agents, clerks, servants and other employees by it properly engaged and
employed, Mortgagee may apply the moneys arising as aforesaid in such manner and
at such times as Mortgagee shall determine in its discretion to the payment of
the Liabilities and the interest thereon, when and as the same shall become
payable and/or to the payment of any other sums required to be paid by Mortgagor
under this Mortgage;
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(c) Upon the occurrence of any such Event of Default, Mortgagor covenants
and agrees as follows:
(1) Mortgagee may, with or without entry, personally or by its
agents or attorneys, insofar as applicable, sell the Mortgaged Property or any
part thereof and pursuant to the procedures provided by law, and all estate,
right, title, interest, claim and demand therein, and right of redemption
thereof, at one or more sales as an entity or in parcels, and at such time and
place upon such terms and after such notice thereof as may be required or
permitted by law; or
(2) Mortgagee may institute an action of mortgage foreclosure
or institute other proceedings according to law for the foreclosure hereof, and
may prosecute the same to judgment, execution and sale for the collection of the
Liabilities secured hereby, and all interest with respect thereto, together with
all taxes and insurance premiums advanced by Mortgagee and other sums payable by
Mortgagor hereunder, and all fees, costs and expenses of such proceedings,
including attorneys' fees and expenses; or
(3) Mortgagee may, if default be made in any payment after
notice and the expiration of the applicable grace period, proceed with
foreclosure of the liens evidenced hereby in satisfaction of such item either
through the courts or by conducting the sale as herein provided, and proceed
with foreclosure of the security interest created hereby, all without declaring
the whole of the Liabilities due, and provided that if sale of the Mortgaged
Property, or any portion thereof, is made because of default in payment of a
part of the Liabilities after notice and the, expiration of the applicable grace
period, such sale may be made subject to the unmatured part of the Liabilities,
but as to such unmatured part of the Liabilities (and it is agreed that such
sale, if so made, shall not in any manner affect the unmatured part of the
Liabilities) this Mortgage shall remain in full force and effect just as though
no sale had been made under the provisions of this paragraph.
(4) Mortgagee may take such steps to protect and enforce its
rights whether by action, suit or proceeding in equity or at law for appointment
of a receiver or for the specific performance of any covenant, condition or
agreement in the Loan Documents or in aid of the execution of any power herein
granted, or for any foreclosure hereunder, or for the enforcement of any other
appropriate legal or equitable remedy or otherwise as the Mortgagee shall elect;
or
(5) Mortgagee may exercise in respect of the Mortgaged
Property consisting of personal property or fixtures, or both, all of the rights
and remedies available to a secured party upon default under the applicable
provisions of the Uniform Commercial Code in effect in the State of New York; or
(6) Any sale as aforesaid may be subject to such existing
tenancies as Mortgagee, in its sole discretion, may elect;
Section 2.03 (a) The Mortgagee may adjourn from time to time any sale
by it to be made under or by virtue of this Mortgage by announcement at the time
and place appointed for such sale or for such adjourned sale or sales; and,
except as otherwise provided by any applicable provision of law, Mortgagee,
without further notice or publication, may make such sale at the time and place
to which the same shall be so adjourned.
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(b) Upon the completion of any sale or sales made by Mortgagee
under or by virtue of this Article II, Mortgagee, or any officer of any court
empowered to do so, shall execute and deliver to the accepted purchaser or
purchasers a good and sufficient instrument, or good and sufficient instruments,
conveying, assigning and transferring all estate, right, title and interest in
and to the properties, interests and rights sold. Mortgagee is hereby
irrevocably appointed the true and lawful attorney of Mortgagor, in its name and
stead, to make all the necessary conveyances, assignments, transfers and
deliveries of any part of the Mortgaged Property and rights so sold, and for
that purpose Mortgagee may execute all necessary instruments of conveyance,
assignment and transfer and may substitute one or more persons with like power,
Mortgagor hereby ratifying and confirming all that its said attorney or such
substitute or substitutes shall lawfully do by virtue hereof. Nevertheless,
Mortgagor, if so requested by Mortgagee, shall ratify and confirm any such sale
or sales by executing and delivering to Mortgagee or to such purchaser or
purchasers all such instruments as may be advisable, in the reasonable judgment
of Mortgagee, for the purpose and as may be designated in such request. Any such
sale or sales made under or by virtue of this Article II, whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or of
a judgment or decree of foreclosure and sale, shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Mortgagor in and to the properties, interests and rights so sold,
and shall be a perpetual bar both at law and in equity against Mortgagor and
against any and all persons claiming or who may claim the same, or any part
thereof, from, through or under Mortgagor.
(c) Upon any sale, whether under the power of sale hereby
given or by virtue of judicial proceedings, it shall not be necessary for
Mortgagee, or any public officer acting under execution or order of court, to
have present or constructive possession of any of the Mortgaged Property.
(d) The recitals contained in any conveyance made by Mortgagee
to any purchaser at any sale made pursuant hereto or under applicable law shall
be full evidence of the matters therein stated, and all prerequisites to such
sale shall be presumed to have been satisfied and performed.
(e) To the extent permitted by law, any such sale or sales
made under or by virtue of this Mortgage, whether under the power of sale hereby
granted and conferred, or under or by virtue of any judicial proceedings, shall
operate to divest all right, title, interest, claim and demand whatsoever,
either by law or in equity, of Mortgagor in and to the premises and property
sold, and shall be a perpetual bar, both at law and in equity, against
Mortgagor, its successors and assigns, and against any and all persons or
entities claiming the premises and property sold, or any part thereof, from
through or under Mortgagor and its successors or assigns.
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(f) Omitted
(g) In case the liens or security interests hereunder, or by
the exercise of any other right or power, shall be foreclosed by Mortgagee's
sale or by other judicial or non-judicial action, the purchaser at any such sale
shall receive, as an incident to its ownership, immediate possession of the
property purchased, and if Mortgagor or Mortgagor's successors shall hold
possession of said property, or any part thereof, subsequent to foreclosure,
Mortgagor or Mortgagor's successors shall be considered as tenants at sufferance
of the purchaser at foreclosure sale, and anyone occupying the property after
demand made for possession thereof shall be guilty of forcible detainer and
shall be subject to eviction and removal, forcible or otherwise, with or without
process of law, and all damages by reason thereof are hereby expressly waived.
(h) In the event a foreclosure hereunder shall be commenced by
Mortgagee, Mortgagee may at any time before the sale abandon the suit, and may
then institute suit for the collection of the Note and for the foreclosure of
the liens and security interest hereof. If Mortgagee should institute a suit for
the collection of the Note and for a foreclosure of the liens and security
interest hereof, it may at any time before the entry of a final judgment in said
suit dismiss the same and proceed to sell the Mortgaged Property, or any part
thereof, in accordance with provisions of this Mortgage.
(i) Should any default occur hereunder, any reasonable
expenses incurred by Mortgagee in prosecuting, resetting or settling the claim
of Mortgagee shall become an additional Liability of Mortgagor hereunder.
(j) In the event of any sale made under or by virtue of this
Article II (whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale), the entire principal of, and interest on, the Note, if not previously due
and payable, and all other sums required to be paid pursuant to the Note and
this Mortgage, immediately thereupon shall, anything in the Note or in this
Mortgage to the contrary notwithstanding, become due and payable.
(k) The purchase money proceeds or avails of any sale made
under or by virtue of this Article II, together with any other sums which then
may be held by Mortgagee under this Mortgage, whether under the provisions of
this Article II or otherwise, shall be applied in accordance with the laws of
the State of New York and to the extent not inconsistent, first to the payment
of the costs and expenses of such sale, including reasonable counsel fees,
second to the payment of the amounts due and owing under the Note for principal
and interest with interest at the Default Rate from and after the happening of
any Event of Default, third to the payment of any other sums required to be paid
pursuant to any provision of this Mortgage, the Note or other Loan Document, all
with interest at the Default Rate from the date such sums were or are required
to be paid under this Mortgage, and fourth to the payment of the surplus, if
any, to whomsoever may be lawfully entitled to receive the same.
(l) Upon any sale made under or by virtue of this Article II,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof and
in lieu of paying cash therefor may make settlement for the purchase price by
crediting upon the indebtedness of Mortgagor secured by this Mortgage the net
sales price after deducting therefrom the expenses of the sale and the costs of
the action and any other sums which Mortgagee is authorized to deduct under this
Mortgage.
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Section 2.04 (a) In case an Event of Default described in this Article
II shall have happened then, upon demand of Mortgagee, Mortgagor will pay to
Mortgagee the sums required to be paid by Mortgagor pursuant to any provision of
this Mortgage, and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to Mortgagee its agents and counsel and any expenses incurred by
Mortgagee hereunder or in connection with any foreclosure action. In the event
Mortgagor shall fail forthwith to pay such amounts upon such demand, Mortgagee
shall be entitled and empowered to institute such action or proceedings at law
or in equity as may be advised by its counsel for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings to judgment or
final decree.
(b) Mortgagee shall be entitled to recover judgment as
aforesaid either before or after or during the pendency of any proceedings for
the enforcement of the provisions of this Mortgage and the right of Mortgagee to
recover such judgment shall not be affected by any entry or sale hereunder, or
by the exercise of any other right, power or remedy for the enforcement of the
provisions of this Mortgage or the foreclosure of the lien hereof; and in the
event of a sale of the Mortgaged Property or any part thereof and of the
application of the proceeds of sale, as provided in this Mortgage, to the
payment of the indebtedness hereby secured, Mortgagee shall be entitled to
enforce payment of, and to receive all amounts then remaining due and unpaid
upon, the Note, and to enforce payment of all other charges, payments and costs
due under this Mortgage and shall be entitled to recover judgment for any
portion of the debt remaining unpaid, with interest thereon at the Default Rate.
(c) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of the Mortgagor shall affect, in any manner or to any extent, the lien
of this Mortgage upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Mortgagee hereunder, but such liens, rights,
powers and remedies of Mortgagee shall continue unimpaired as before.
(d) Any moneys thus collected by Mortgagee under this Section
2.04 shall be applied by Mortgagee in accordance with the provisions of
paragraph (k) of Section 2.03.
Section 2.05 After the happening of any Event of Default and
immediately upon the commencement of any action, suit or other legal proceedings
by Mortgagee to obtain judgment for the principal of, or interest on, the Note
and other sums required to be paid by Mortgagor pursuant to any provision of
this Mortgage or of any nature in aid of the enforcement of the Note, or this
Mortgage, Mortgagor will, if required by Mortgagee, consent to the appointment
of a receiver or receivers of the Mortgaged Property or any part thereof and of
all the earnings, revenues, rents, maintenance payments, issues, profits and
income thereof in accordance with Section 2.11 hereof. After the happening of
any Event of Default or upon the commencement of any proceedings to foreclose
this Mortgage or to enforce the specific performance hereof or in aid thereof or
upon the commencement of any other judicial proceeding to enforce any right of
Mortgagee, Mortgagee shall be entitled, as a matter of right, if it shall so
elect, without the giving of notice to any other party and without regard to the
adequacy or inadequacy of any security for the Mortgage indebtedness, forthwith
either before or after declaring the unpaid principal of the Note to be due and
payable, to the appointment of such a receiver or receivers.
Section 2.06 Notwithstanding the appointment of any receiver,
liquidator or trustee of Mortgagor or of any of its property, or of the
Mortgaged Property or any part thereof, Mortgagee shall be entitled to retain
possession and control of all property now or hereafter held under the Mortgage.
Section 2.07 No remedy herein conferred upon or reserved to Mortgagee
is intended to be exclusive of any other remedy or remedies which Mortgagee may
be entitled to exercise against Mortgagor and each and every such remedy shall
be cumulative, and shall be in addition to every other remedy given hereunder or
in any other Loan Document or now or hereafter existing at law or in equity or
by statute. No delay or omission of Mortgagee to exercise any right, such right
or power, or shall be construed to be a waiver of Mortgagee's right to demand
payment at anytime or of any such Event of Default or any acquiescence therein;
and every power and remedy given in this Mortgage or in any other Loan Document
to Mortgagee may be exercised from time to time as often as may be deemed
expedient by Mortgagee. The resort to any remedy provided hereunder or in any
other Loan Document or provided by law or at equity shall not prevent the
concurrent or subsequent employment of any other appropriate remedy or remedies
against Mortgagor. By the acceptance of payment of principal of or interest on
any of the Liabilities after its due date, Mortgagee does not waive the right
either to demand payment at anytime or to require prompt payment when due of all
other amounts secured hereby or to regard as an Event of Default the failure to
pay any other such amounts. Nothing in this Mortgage or in the Note shall affect
the obligation of Mortgagor to pay the Liabilities in the manner and at the time
herein expressed.
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Section 2.08 Mortgagor will not at any time insist upon, or plead, or
in any manner whatever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now or at any time
hereafter in force, which may affect the covenants and terms of performance of
this Mortgage or any other Loan Document, or claim, take or insist upon any
benefit or advantage of any law now or hereafter in force providing for the
valuation or appraisal of the Mortgaged Property, or any part thereof, prior to
any sale or sales thereof which may be made pursuant to any provision herein, or
pursuant to the decree, judgment or order of any court of competent
jurisdiction, or, after any such sale or sales, claim or exercise any right
under any statute heretofore or hereafter enacted to redeem the property so sold
or any part thereof; and Mortgagor hereby expressly waives all benefit or
advantage of any such law or laws and covenant not to hinder, delay or impede
the execution of any power herein granted or delegated to Mortgagee, but to
suffer and permit the execution of every power as though no such law or laws had
been made or enacted. Mortgagor, waives, to the extent that it lawfully may, all
right to have the Mortgaged Property or any part thereof marshaled upon any
foreclosure hereof.
Section 2.09 Upon the occurrence of any Event of Default and pending
the exercise by Mortgagee of its right to exclude Mortgagor from all or any part
of the Premises, unless Mortgagor is legally entitled to continue possession of
the Premises, Mortgagor agrees to pay the fair and reasonable rental value for
the use and occupancy of the Premises or any portion thereof which are in its
possession for such period and, upon default of any such payment, will vacate
and surrender possession of the Premises to Mortgagee or to a receiver, if any,
and in default thereof may be evicted by any summary action or proceeding for
the recovery of possession of the Premises for non-payment of rent, however
designated. Any payments received by Mortgagee shall be applied in accordance
with Section 2.03(k) of this Mortgage.
Section 2.10 In case of any sale under the foregoing provisions of this
Article II, whether made under the power of sale hereby given or pursuant to
judicial proceedings, Mortgagee may bid for and purchase any property, and may
make payment therefor as hereinafter set forth, and, upon compliance with the
terms of said sale, may hold, retain and dispose of such property without
further accountability therefor. For the purpose of making settlement or payment
for the property or properties purchased, Mortgagee shall be entitled to use and
apply such of the Liabilities held by it and any accrued and unpaid interest
thereon.
Section 2.11 Upon application of Mortgagee to any court of competent
jurisdiction, if any Event of Default shall have occurred, to the extent
permitted by law, a receiver may be appointed to take possession of and to
operate, maintain, develop and manage the Mortgaged Property or any part
thereof. In every case when a receiver of the whole or any part of the Mortgaged
Property shall be appointed under this Section 2.11 or otherwise, the net income
and profits of the Mortgaged Property shall, subject to the order of any court
of competent jurisdiction, be paid over to, and shall be received by, Mortgagee
to be applied as provided in Section 2.03(k) hereof.
Section 2.12 Mortgagee may resort to any security given by this
Mortgage or to any other security now existing or hereafter given to secure the
payment of any of the Liabilities secured hereby, in whole or in part, and in
such portions and in such order as may seem best to Mortgagee in its reasonable
discretion, and any such action shall not in any way be considered as a waiver
of any of the rights, benefits, liens or security interest created by this
Mortgage.
Section 2.13 All remedies herein expressly provided are in addition to
any and all remedies provided for in the Mortgages and the Notes and all other
remedies now or hereafter existing at law or in equity, and the Mortgagee shall,
in addition to the remedies herein expressly provided, be entitled to avail
themselves or itself of all such other remedies as may now or hereafter exist at
law or in equity for the collection of the indebtedness and the enforcement of
the covenants herein and the foreclosure of the liens and security interest
granted hereby, and the resort to any remedy provided hereunder or provided by
law shall not prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies against Mortgagor.
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ARTICLE III
MISCELLANEOUS
Section 3.01 All of the grants, covenants, terms, provisions and
conditions of this Mortgage shall run with the land and shall apply to, bind and
inure to the benefit of the successors and assigns of the Mortgagor and the
successors and assigns of the Mortgagee. All of the covenants and warranties
made by the Mortgagor in this Mortgage shall be joint and several. The term
"Mortgagee" as used herein, shall be deemed to mean the holder from time to time
of the Note at the time outstanding.
Section 3.02 In the event any one or more of the provisions contained
in this Mortgage or in the Note shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall, at the option of Mortgagee, not affect any other
provision of this Mortgage but this Mortgage shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein or
therein.
Section 3.03 All notices hereunder shall be in writing and shall be
deemed to have been sufficiently given or served for all purposes when sent by
certified or registered mail or commercial courier service, to any party hereto
at the following address:
(a) If to Mortgagee:
Independence Community Bank
179 Pacific Street
Brooklyn, New York 11201
with a copy to:
Jaffe & Asher
52 Vanderbilt Avenue
New York, New York 10017
Attn: Larry M. Nessenson, Esq.
(b) If to Mortgagor:
100 Marcus Boulevard
Hauppauge, NY 11788
With a copy to:
Joseph Cannella, Esq.
Fischbein, Badillo, Wagner & Harding
909 Third Avenue
New York, NY 10022
or at such other address as any of the parties may from time to time designate
by written notice given as herein required. Mailed notices shall not be deemed
given or served until three business days after the date of mailing thereof or
if delivery is by nationwide commercial courier service of notice shall be
deemed given one business day after the date of delivery thereof to said
courier. Rejection or refusal to accept, or inability to deliver because of
changed addresses or because no notice of changed address was given, shall be
deemed a receipt of such notice.
Section 3.04 The Default Rate shall continue to accrue and be paid on
any amount to which the Default Rate is applied until said amount is paid in
full.
22
<PAGE>
Section 3.05 This Mortgage and the rights and indebtedness hereby
secured shall, without regard to place of contract or payment, be construed and
enforced according to the laws of the State of New York, without giving effect
to its principles of conflicts of laws.
Section 3.06 Neither this Mortgage nor any provision hereof may be
changed, waived, discharged or terminated, except by an instrument in writing,
signed by Mortgagee and Mortgagor.
Section 3.07 This Mortgage shall be deemed to be a security agreement
pursuant to the Uniform Commercial Code of the State of New York.
Section 3.08 In the event that Mortgagee, in enforcing its rights
hereunder, determines that charges and fees incurred in connection with the Loan
may, under the applicable usury laws, cause the interest rate herein to exceed
the maximum allowed by law, then such interest shall be recalculated and any
excess over the maximum interest permitted by said laws shall be credited to the
then principal outstanding balance to reduce said balance by that amount. It is
the intent of the parties hereto that Mortgagor under no circumstances shall be
required to pay, nor shall Mortgagee be entitled to collect, any interest which
is in excess of the maximum legal rate permitted under the applicable usury
laws.
Section 3.09 Mortgagor will not claim or demand or be entitled to
receive any credit or credits on the principal indebtedness to secure payment of
which this Mortgage is made, or on the interest payable thereon, for so much of
the taxes assessed against the Mortgaged Property as is equal to the tax rate
applied to the principal indebtedness due on this Mortgage or any part thereof
and no deduction shall be claimed from the taxable value of the Mortgaged
Property by reason of this Mortgage.
Section 3.10 No release of any part of the Mortgaged Property or of any
other property conveyed to secure the obligations secured hereby shall in any
way alter, vary or diminish the force, effect or lien or security interest of
this Mortgage on the Mortgaged Property or portion thereof remaining subject to
the lien and security interest created hereby.
Section 3.11 In the event Mortgagor or any of Mortgagor's successors
conveys or leases without the prior approval of the Mortgagee (which approval
shall not be unreasonably withheld) except as permitted herein any interest in
the Mortgaged Property, or any part thereof, to any other party, Mortgagee may
deal with any owner or lessee of any part of the Mortgaged Property with
reference to this Mortgage and to the Liabilities, either by forbearance on the
part of Mortgagee or release of all or any part of the Mortgaged Property or of
any other property securing payment of any Liabilities, without in any way
modifying or affecting Mortgagee's rights, remedies, liens or security interests
hereunder (including the right to demand payment at anytime or to exercise any
one or more of the remedies described or referred to in Article I, Article II,
or Article III hereof in the event such conveyance is made in contravention of
the provisions of this Mortgage) or the liability of Mortgagor or any other
party liable for the payment of the Liabilities, in whole or in part. This shall
not be construed to allow any such conveyance or leasing by Mortgagor, it being
understood that conveyance or leasing of the Mortgaged Property or any part
thereof, except as permitted herein, is an Event of Default hereunder.
Section 3.12 All options and rights of election herein provided for the
benefit of the Mortgagee are continuing, and the failure to exercise any such
option or right or election upon a particular demand or default or breach or
upon any subsequent demand or default or breach shall not be construed as
waiving the right to exercise such option or election at any later date. By the
acceptance of payment of principal or interest after its due date, the Mortgagee
does not waive the right either to require prompt payment at any time or to
payment when due of all other amounts secured hereby or to demand payment at any
time or to regard as an Event of Default the failure to pay any other such
amounts. No exercise of the rights and powers herein granted and no delay or
omission in the exercise of such rights and powers shall be held to exhaust the
same or be construed as a waiver thereof, and every such right and power may be
exercised at any time and from time to time. All grants, covenants, terms and
conditions hereof shall bind Mortgagor and all successive owners of the
Premises.
23
<PAGE>
Section 3.13 Mortgagor shall pay any transfer or gains tax payable
pursuant to the Tax Law of the State of New York as the same may be amended,
supplemented and/or replaced from time to time upon a foreclosure of the
Mortgage or a transfer of the Premises in lieu of foreclosure. Mortgagor will
deliver to the Mortgagee at any time upon request by the Mortgagee certain
information, affidavits, questionnaires and documents relating to computation of
the Tax which would be payable upon a foreclosure or transfer in lieu thereof.
Mortgagor shall cooperate with Mortgagee in connection with compliance with the
Tax Law. Mortgagor hereby appoints Mortgagee as Mortgagor's agent (which agency
is coupled with an interest in Mortgagee and is irrevocable) to execute and file
all questionnaires, affidavits and returns and provide all documents and
information necessary to comply with the Tax Law, if for any reason Mortgagor
fails to do so, but without Mortgagee having any obligation to do so.
Mortgagor hereby indemnifies and agrees to hold Mortgagee
harmless from any loss, cost, damage and expense (including but not limited to
attorneys' fees in a reasonable amount) which Mortgagee may suffer or incur by
reason of Mortgagor's failure to comply with its obligations under this
paragraph. The foregoing indemnity shall survive any termination of this
Mortgage, whether by foreclosure, deed in lieu of foreclosure or otherwise, but
it shall not survive payment in full of the Liabilities.
Section 3.14 Intentionally Deleted.
Section 3.15 Mortgagee shall have the right, in its reasonable
discretion if Mortgagee reasonably believes the same is required, to require
updated appraisals and/or environmental reports of the Premises. Mortgagee shall
retain an appraiser and/or environmental inspector at Mortgagor's expense.
Section 3.16 Intentionally Deleted.
Section 3.17 This Agreement shall be binding upon, and inure to the
benefit of, the successors, heirs, executors, administrators and assigns of the
respective parties hereto.
Section 3.18 Mortgagor irrevocably submits to the jurisdiction of any
New York State or Federal court over any suit, action or proceeding arising out
of or relating to this Agreement or any Loan Document. The Mortgagor hereby
agrees that the Mortgagee shall have the option in its sole discretion to lay
the venue of any such suit, action or proceeding in the courts of the State of
New York or the United States of America, irrevocably waives to the fullest
extent permitted by law any objection which Mortgagor may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in
such court and any claim that any suit, action or proceeding brought in such
court has been brought in an inconvenient form. The Mortgagor agrees that a
final judgment of any such suit, action or proceeding brought in such a court
shall be conclusive and binding upon the Mortgagor.
Section 3.19 Mortgagee shall have the right, at its sole discretion at
any time, or from time to time, to assign this Mortgage or invite participants
to participate in portions of the indebtedness secured by this Mortgage and
Mortgagor agrees to execute any documents requested by Mortgagee in connection
with such assignment or participation.
24
<PAGE>
Section 3.20. Wherever in this Mortgage the Mortgagee has agreed not to
unreasonably withhold its consent to any action by Mortgagor, the Mortgagee
shall not unreasonably withhold, delay, or condition such consent.
Section 3.21. Release of Part of Mortgaged Premises. Upon request of
the Mortgagor and fulfillment of the conditions set forth below, Mortgagee will
release a portion of the Premises from the lien of this Mortgage consisting of
no more than six (6) acres of vacant land (the "Released Portion"). In order to
obtain such release:
1. The Mortgager must request such release in writing;
2. No Event of Default shall exist hereunder;
3. Mortgagee shall conduct an appraisal of the remainder
of the Premises without the Released Portion (the
"Remaining Premises") at Mortgagor's expense. If such
appraisal evidences that the ratio of the outstanding
balance of the Note to the appraised value of the
Remaining Premises is greater that 75%, Mortgagee
shall make a prepayment simultaneously with such
release to decrease the ratio to 75%, and
4. The Remaining Premises must be marketable and not in
violation of any governmental laws, rules or
regulations including, without limitation, zoning
laws and regulations.
Section 3.22 The Mortgagee shall not unreasonably refuse to assign this
Mortgage upon payment in full of the Liabilities secured hereby.
IN WITNESS WHEREOF, this Mortgage has been duly executed by the
Mortgagor as of the day and year first above written.
Boundless Technologies, Inc.
By:
-------------------------
25
<PAGE>
SCHEDULE A
PARCEL I
All that certain plot, piece or parcel of land with the buildings and
improvements thereon erected, situate, lying and being in the Town of Smithtown,
County of Suffolk and State of New York, being part of Lot 6 as shown on a
certain map entitled "Map of Marcus Industrial Park at Smithtown" and filed in
the Office of the Clerk of Suffolk County of October 4, 1967 as Map No. 4961
being bounded and described as follows:
BEGINNING at a point on the westerly side of Marcus Boulevard distant 333 feet
southerly from the corner formed by the intersection of the westerly side of
Marcus Boulevard with the southerly side of Arkay Drive:
RUNNING THENCE South 3 degrees 17 minutes 15 seconds East along the westerly
side of Marcus Boulevard 438.23 feet;
THENCE South 86 degrees 42 minutes 45 seconds West 690 feet;
THENCE North 3 degrees 17 minutes 15 seconds West along land now or formerly of
ITT Communications, Inc. 448.24 feet;
THENCE North 86 degrees 42 minutes 45 seconds East 254 feet;
THENCE South 3 degrees 17 minutes 15 seconds East 10.01 feet;
THENCE North 86 degrees 42 minutes 45 seconds East 436 feet to the westerly side
of Marcus Boulevard and the point or place of BEGINNING.
26
<PAGE>
SCHEDULE A
PARCEL II
All that certain plot, piece or parcel of land with the buildings and
improvements thereon erected, situate, lying and being at Hauppauge, in the Town
of Smithtown, County of Suffolk and State of New York, being part of Lot No. 6
on a certain map entitled "Map of Suffolk County Business Center Section No. 2"
filed in the Office of the Clerk of the County of Suffolk on August 31, 1978 as
Map No. 6715 bounded and described as follows:
BEGINNING at a point on the southerly side of Arkay Drive, also known as Arnold
Drive, distant 670.00 feet westerly along the same from the northwesterly end of
the curve connecting said southerly side of Arkay Drive with the westerly side
of Marcus Boulevard; and
RUNNING THENCE southerly along the westerly map line of "Marcus Industrial Park"
south 3 degrees 15 minutes 52 seconds East, a distance of 791.23 feet;
THENCE westerly, south 86 degrees 44 minutes 08 seconds West, a distance of
450.00 feet;
THENCE northerly, North 3 degrees 15 minutes 52 seconds West, a distance of
791.23 feet to the southerly side of Arkay Drive; and
THENCE easterly, North 86 degrees 44 minutes 08 seconds East, along the
southerly side of Arkay Drive, a distance of 450.00 feet to the point or place
of BEGINNING.
27
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS FOR THE SIX-MONTH PERIOD ENDED JUNE 30, 1999 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 395
<SECURITIES> 0
<RECEIVABLES> 15,069
<ALLOWANCES> 444
<INVENTORY> 12,802
<CURRENT-ASSETS> 32,546
<PP&E> 14,168
<DEPRECIATION> 3,876
<TOTAL-ASSETS> 50,139
<CURRENT-LIABILITIES> 15,937
<BONDS> 14,917
0
0
<COMMON> 44
<OTHER-SE> 17,620
<TOTAL-LIABILITY-AND-EQUITY> 50,139
<SALES> 41,286
<TOTAL-REVENUES> 41,286
<CGS> 29,599
<TOTAL-COSTS> 29,599
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 206
<INTEREST-EXPENSE> 751
<INCOME-PRETAX> 1,213
<INCOME-TAX> 461
<INCOME-CONTINUING> 752
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 752
<EPS-BASIC> 0.16
<EPS-DILUTED> 0.16
</TABLE>
