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EXHIBIT 99.5
PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of this _____ day of May 1998,
by and between EDAC TECHNOLOGIES CORPORATION ("Buyer"), and Xxxxxx X. Xxxxxx
and Xxxxx X. Xxxxxx (collectively "Sellers").
RECITALS
WHEREAS, Sellers are the owners of the real estate at 00 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxx (the "Property"); and
WHEREAS, Sellers desire to sell to Buyer, and Buyer desires to purchase
from Sellers, the Property upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and covenants contained
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Right of First Refusal Relating to the Property. Sellers state, and
Buyer acknowledges that Sellers have so stated, that pursuant to that certain
Lease and Option to Purchase dated May 22, 1991 between Sellers, as Lessor, and
Lithographics, Inc. ("Lithographics"), as Tenant, amended by (a) First
Amendment to Lease and Option to Purchase dated Xxxxxx 00, 0000, (x) Second
Amendment to Lease dated March 17, 1995 and (c) Second Amendment to Lease and
Option to Purchase dated March __, 1996 (such Lease and Option to Purchase, as
so amended, the "Lithographics Lease"), Lithographics has a right of first
refusal with respect to the sale of the Property under the same terms and
conditions as apply to the sale of the Property under this Agreement. Pursuant
to the Lithographics Lease, Lithographics must exercise its right of first
refusal within thirty (30) days after receipt of notice from Sellers that they
have received a bona fide offer for the Property which they are willing to
accept (such notice must include the terms of such sale). Promptly following
execution of this Agreement, Sellers will deliver to Lithographics a Notice of
Intent to Sell in the form of the Notice attached hereto as Exhibit A and seek
to have
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Lithographics either confirm its exercise of its right of first refusal or
waive such right with respect to the sale of the Property hereunder as soon as
possible. Sellers and Buyer agree that (i) if Lithographics fails to exercise
its right of first refusal as provided in the Lithographics Lease or if
Lithographics shall waive its right of first refusal with respect to the sale
of the Property hereunder, then this Agreement shall continue in full force and
effect and (ii) if Lithographics exercises its right of first refusal as
provided in the Lithographics Lease, then all rights and liabilities of the
parties hereto by reason of this Agreement (except those obligations and
liabilities specifically set forth herein to survive termination) shall be
deemed at an end.
2. Conveyance. On the Closing Date, as hereinafter defined, Sellers shall
execute a Limited Warranty Deed with covenants against Sellers' acts conveying
the Property to Buyer subject to (i) the Lithographics Lease but without any
right of first refusal or any other tenant purchase rights relating to the
conveyance pursuant to this Agreement and (ii) the other Permitted Encumbrances
as defined in Section 6.1 hereof.
3. Closing.
3.1 Date of Closing.
(a) The closing ("Closing") of the purchase and sale of the
Property shall occur at 10:00 a.m. on the sixtieth (60th) day following
Sellers' delivery of the Determination to Buyer as provided in Section 8.2
hereof ("Closing Date") time being of the essence, in the offices of Murtha,
Cullina, Xxxxxxx and Xxxxxx LLP, CityPlace I, 000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 or at such other time or place or on such other date as shall
be mutually agreed upon in writing by the parties. All transactions
contemplated herein shall be effective as of 12:01 a.m. on the Closing Date.
If the Closing Date as provided above shall not be a Business Day, then the
Closing Date shall be the next succeeding Business Day. For purposes of this
Agreement, the term "Business Day" shall mean any day other than a Saturday,
Sunday or any other day on which banks in Hartford, Connecticut are closed.
(b) Notwithstanding anything contained herein to the contrary, if
Sellers do not deliver the Determination to
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Buyer as provided in Section 8.2 hereof within 48 months after the Closing
Date under the Asset Agreement, Sellers and Buyer shall each have the right to
terminate this Agreement by written notice to the other party. If either party
terminates this Agreement in accordance with this Section 3.1(b), all rights
and liabilities of the parties hereto by reason of this Agreement (except those
obligations and liabilities specifically set forth herein to survive
termination) shall be deemed at an end.
3.2 Purchase Price.
3.2.1. The Purchase Price for the Property shall be $1,135,600
(the "Purchase Price") and shall be payable at the Closing of transfer of
title to the Property by certified bank or cashier's check or federal wire
transfer, subject to closing adjustments as hereinafter set forth.
Notwithstanding the foregoing, if the Closing Date is within 17 months from the
date hereof, Buyer shall have the option of paying the Purchase Price by
delivering to Sellers a Note (the "Note") in form and substance identical to
that attached hereto as Exhibit B and incorporated herein by reference with all
blanks filled in with the appropriate information, which Note shall be secured
by (i) a Mortgage on the Property (the "Mortgage") in form and substance
identical to that mortgage attached hereto as Exhibit C and incorporated herein
by reference with all blanks filled in with the appropriate information and
(ii) an Assignment of Leases ("Assignment of Leases") encumbering all leases
existing with respect to the Property on the Closing Date or thereafter, which
shall be in form and substance identical to that attached hereto as Exhibit D
and incorporated herein by reference.
3.2.2. Sellers shall be responsible for any state or local real
estate conveyance taxes assessed by any applicable government or municipality.
3.3. Closing Deliveries by Buyer. At the Closing, Buyer shall deliver
to Sellers the following items, each executed, witnessed and acknowledged as
appropriate:
3.3.1. Certified copies of resolutions of Buyer's Board of
Directors authorizing and approving the execution of this Agreement and all
other documents required to be delivered to Buyer hereunder and the performance
by Buyer of the transactions contemplated hereby and thereby.
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3.3.2. A closing certificate executed by Buyer stating that all
representations and warranties made by Buyer are true and correct in all
material respects as of the Closing Date and that Buyer has performed and
complied in all material respects with all of its covenants and obligations
required under this Agreement as of the Closing Date.
3.3.3. Unless the Buyer elects to pay the Purchase Price by
delivery of the Note as provided in Section 3.2.1 hereof, a bank or certified
check or wire transfer of funds to an account designated by Sellers in an amount
equal to the Purchase Price, plus adjustments, if any, which are payable by
Buyer to Sellers pursuant to Section 3.6 hereof.
3.3.4. If Buyer elects to pay the Purchase Price by delivery of
the Note as provided in Section 3.2.1 hereof, the Note, the Mortgage and the
Assignment of Leases together with a Lender's title insurance policy issued by a
title insurance company licensed to do business in Connecticut chosen by Buyer
and reasonably acceptable to Sellers (the "Title Company") insuring the Mortgage
as a first priority Mortgage on the Property subject only to those matters to
which Buyer's title from Sellers is subject, such title insurance policy shall
be in the full amount of the Purchase Price.
3.3.5. An assignment and assumption of lease and security deposit
in the form of the Assignment and Assumption of Lease attached hereto as Exhibit
E with all blanks filled in with the appropriate information (the "Lithographics
Assignment of Lease") pursuant to which (I) Sellers assign to Buyer all of
Sellers' right, title, interest and obligation in, to and under the
Lithographics Lease, (II) Buyer assumes the obligations of Sellers under the
Lithographics Lease from and after the Closing Date; (III) Sellers indemnify
Buyer from any loss, cost, expense or liability incurred by Buyer by reason of
any landlord defaults under the Lithographics Lease existing prior to the
Closing Date and (IV) Buyer indemnifies Sellers from any loss, cost, expense or
liability incurred by Sellers by reason of any landlord defaults under the
Lithographics Lease arising from and after the Closing Date; and a tenant
notification letter in the form of the letter attached hereto as Exhibit F with
all blanks filled in with the appropriate information (the "Tenant Notification
Letter") notifying Lithographics of the sale of the Property to
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Buyer. Notwithstanding the foregoing, in the event the Lithographics Lease
shall be terminated prior to the Closing, (i) if no new lease is entered into by
Sellers pursuant to Section 9.12 hereof then no Lithographics Assignment of
Lease or Tenant Notification Letter shall be required to be delivered at the
Closing and (ii) if a new lease is entered into by Sellers pursuant to Section
9.12 hereof, then Buyer and Sellers shall enter into an assignment and
assumption of lease and a tenant notification letter with respect to such new
lease in the same form as the Lithographics Assignment of Lease and the Tenant
Notification Letter.
3.4. Closing Deliveries by Sellers. At the Closing, Sellers shall
deliver, or cause to be delivered, the following items, each executed, witnessed
and acknowledged as appropriate, to Buyer:
3.4.1. The Limited Warranty Deed required by Section 2.
3.4.2. The Lithographics Assignment of Lease and the Tenant
Notification Letter, subject to the provisions of Section 3.3.5 hereof.
3.4.3. All such documents as are necessary to terminate and
release encumbrances which effect the Property being conveyed other than
Permitted Encumbrances.
3.4.4. A closing certificate executed by Sellers stating that the
representations and warranties made by Sellers in Section 4.2 hereof are true
and correct in all material respects as of the Closing Date; and that Sellers
have performed and complied in all material respects with all of their covenants
and obligations required under this Agreement as of the Closing Date.
3.4.5. Such affidavits and certificates as may be reasonably and
customarily required by the Title Company to delete title exceptions relating to
(i) parties in possession other than tenants under the Lithographics Lease or
other lease entered into pursuant to Section 9.12 hereof and (ii) possible
mechanics liens with respect to work done at the request of the Sellers.
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3.4.6. A Non-Foreign Status Certification.
3.4.7. State and local transfer tax forms detailing the transfer
tax due, if any, together with checks, in appropriate amounts, payable to the
Connecticut Department of Revenue Services and the Town of Farmington in payment
of required conveyance taxes.
3.4.8. A Form 1099-S.
3.4.9. Any form required pursuant to Section 8.1 hereof.
3.5. Mutual Deliveries. At the Closing Buyer and Sellers shall deliver
a Closing Statement showing the disbursement of the net closing proceeds, payoff
amounts sufficient to release encumbrances on the Property being conveyed other
than Permitted Encumbrances, the real estate conveyance taxes and such other
disbursements and adjustments as are usual and customary including, without
limitation, proration of rent and security deposits.
3.6. Prorations.
3.6.1. Real Property Taxes. Sellers and Buyer acknowledge that
Lithographics is responsible for the payment of real estate taxes effecting the
Property during the term of the Lithographics Lease; therefore, there shall be
no adjustment between Sellers and Buyer with respect to real estate taxes
payable during the continuance of the Lithographics Lease. If the Lithographics
Lease has expired or been terminated prior to the Closing, real estate taxes
which relate to periods after such termination or expiration shall be adjusted
as of the day immediately preceding the Closing Date in accordance with the
custom of the Hartford County Bar Association.
3.6.2. Assessments. Sellers and Buyer acknowledge that
Lithographics is responsible for the payment of assessments on the Property
which are due during the term of the Lithographics Lease; therefore, there shall
be no adjustment between Sellers and Buyer with respect to any assessments for
benefit with respect to the Property which were payable during the continuance
of the Lithographics Lease. If the Lithographics Lease has expired or been
terminated prior to the Closing,
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assessments which relate to the periods after such termination or expiration
shall be adjusted as of the day immediately preceding the Closing Date in
accordance with the custom of the Hartford County Bar Association.
3.6.3. Utilities. Sellers and Buyer acknowledge that Lithographics
is responsible for the payment of all utilities supplied to the Property during
the term of the Lithographics Lease; therefore, there shall be no adjustment of
utilities between Sellers and Buyer with respect to such charges incurred during
the continuance of the Lithographics Lease. If the Lithographics Lease is
terminated or expires prior to the Closing Date, Sellers shall endeavor to
obtain meter readings on the day immediately preceding the Closing Date with
respect to utilities supplied to the Property after the termination or
expiration of the Lithographics Lease, and if such readings are obtained, then
Sellers shall pay the bills therefor for the period to, but not including, the
Closing Date. If Sellers are unable to obtain meter readings as of the day
immediately preceding the Closing Date, such utilities shall be prorated at the
Closing Date based upon the most recent utility bills, and reprorated between
Sellers and Buyer upon issuance of the actual bills therefor.
3.6.4. Rent. Rents with respect to the Property shall be adjusted
in the following manner:
3.6.4.1 Rents received by Sellers for the calendar month
in which the Closing shall occur shall be adjusted at the Closing as of
the day preceding the Closing Date.
3.6.4.2 Rents received by Buyer or Sellers after the
Closing for the calendar month in which the Closing shall occur shall be
adjusted as of the day preceding the Closing Date, and Buyer or Sellers,
as the case may be, shall remit or cause to be remitted to the other its
pro rata share of such rents promptly after receipt thereof;
3.6.4.3 Except as provided in Section 3.6.4.2 above, with
respect to the adjustment of rents received by Buyer after the date of
Closing for the calendar month in which the Closing shall occur, no
adjustment shall
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be made for delinquent rent owing to Sellers on the date of Closing,
unless such payments are in excess of amounts necessary to bring a
tenant current for rent owed after the Closing. Sellers shall retain
title to all such delinquent rents, if any.
3.6.5. Association Assessments. Any property owners association
assessment due on the Property which are not paid directly by Lithographics or
any other tenant under a lease entered into pursuant to Section 9.12 hereof
shall be prorated on the Closing Date, through the day immediately preceding the
Closing Date.
3.6.6. Contractual Obligations, Sellers shall perform all
obligations under all service contracts of Sellers affecting or involving the
Property to be assumed by Buyer, as evidenced in writing by Buyer prior to the
Closing Date and Buyer shall perform all obligations under all such contracts
following the Closing Date. If any payments under such contracts are not paid
through the day preceding the Closing Date, or are prepaid before the Closing
Date for periods from and after the Closing Date, such amounts shall be prorated
through the day preceding the Closing Date and credited or debited against the
Purchase Price, as appropriate.
4. Representations and Warranties of Sellers.
4.1. General. In order to induce Buyer to enter into this
Agreement, Sellers, jointly and severally make the following representations and
warranties. Except for intentional breaches of the representations and
warranties for which claims may be made at any time until the claim is barred by
the applicable period of limitations under federal and state laws relating
thereto, the representations and warranties in Section 4.2 hereof shall survive
for a period of twenty-four (24) months from the Closing hereunder and the
representations and warranties in Sections 4.3 and 4.4 shall survive for a
period of twenty-four (24) months from the Closing under the Asset Agreement.
Sellers shall indemnify Buyer for breach of such representations and warranties
as provided in Section 7 hereof. In no event shall the aggregate indemnity
payments required to be made by Sellers for all claims hereunder exceed Five
Million Dollars ($5,000,000) minus (i) any amounts paid by Apex Machine Tool
Company, Inc. ("Apex") or any of the Sellers and/or Xxxxxxx Xxxxxx pursuant to
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indemnifications under the Asset Purchase Agreement ("Asset Agreement") dated
the date hereof between Apex Acquisition Corp., Buyer, Apex, Sellers and
Xxxxxxx Xxxxxx and (ii) any amounts paid by Sellers and/or Xxxxxxx Xxxxxx
pursuant to indemnifications under the Purchase and Sale Agreement dated the
date hereof between Buyer, Sellers and Xxxxxxx Xxxxxx relating to 00 Xxxxxx
Xxxx and 00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx (the "Other Real Estate Sale
Agreement").
4.2. Enforceability; Conflicting Obligations. This Agreement and all
other agreements of Sellers contemplated hereby are or, upon the execution and
delivery thereof, will be the valid and binding obligations of Sellers
enforceable against Sellers in accordance with their terms. Except for
Lithographics' right of first refusal under the Lithographics Lease, which is
triggered by the execution of this Agreement as provided in Section 1 above (but
only until such time as Lithographics either fails to exercise or waives such
first refusal rights), the execution and delivery of this Agreement does not,
and the consummation of the sale and purchase of the Property contemplated
hereby will not, conflict with or violate any provisions of, or result in the
acceleration of, any obligations under any mortgage, lien, lease, order,
arbitration award, judgment, or decree, or any other agreement or other
instrument to which Sellers are subject or to which they are a party or violate
any restriction or limitation of any kind to which they are bound, including any
law, rule, regulation or guideline. Except as described herein, there are no
approvals or consents of third parties necessary for the sale of the Property,
or the transfer of the benefit and enjoyment thereof to Buyer under this
Agreement.
4.3. Litigation. Except as otherwise disclosed in the Asset Agreement,
there is no litigation, proceeding or governmental investigation pending or, to
the knowledge of Sellers, threatened against Sellers relating to the
transactions contemplated by this Agreement or to the Property. Except as
otherwise disclosed in the Asset Agreement, there is no outstanding order,
decree or stipulation issued by any federal, state or local authority to which
Sellers are a party which adversely affects or may adversely affect the Property
or Buyer's enjoyment thereof following the Closing.
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4.4. Sellers' Representations and Warranties. Sellers represent and
warrant to Buyer that (i) Sellers have not received any written notice of any
assessments for public improvements against the Property or any written notice
or order by any governmental, regulatory or administrative authority, any
insurance company which has issued a policy with respect to any of such
properties or any board of fire underwriters or other body exercising similar
functions that: (a) relates to violations of building, safety or fire ordinances
or regulations; (b) claims any defect or deficiency with respect to any of the
Property; or (e) requests the performance of any repairs, alternations or other
work to or in any of the Property or in the streets bounding the same; and (ii)
Sellers have not received any written notice of any condemnation, expropriation,
eminent domain or similar proceeding affecting all or any portion of the
aforesaid Property.
5. Representations and Warranties of Buyer.
5.1. General. In order to induce Sellers to enter into this Agreement,
Buyer makes the following representations and warranties, each of which shall
survive the Closing and shall be deemed to be independently material and relied
upon by Sellers, regardless of any investigation made by, or information known
to, Sellers. Buyer shall indemnify Sellers for breach of such representations
and warranties as provided in Section 7 hereof.
5.2. Organization. Buyer is a corporation duty organized, validly
existing, and in good standing under the laws of the State of Wisconsin. Buyer
possesses all necessary franchises, powers, permits, and authorizations
(collectively, "Governmental Authorizations") to own all of its properties and
assets, and to carry on its business as now being conducted and as of the
Closing Date shall possess all Governmental Authorizations to own the Property
and to carry out its business therein.
5.3. Enforceability, Conflicting Obligations. This Agreement, and all
other agreements of Buyer contemplated hereby are, or upon the execution and
delivery thereof will be, the valid and binding obligations of Buyer enforceable
against it in accordance with their terms. The execution and delivery of this
Agreement does not, and the consummation of the sale and purchase
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of the Property contemplated hereby will not, conflict with or violate any
provisions of the Articles of Incorporation or Bylaws of Buyer, nor any
provisions of, or result in the acceleration of, any material obligations under
any mortgage, lien, lease, law, rule, regulation, guideline, order, arbitration
award, judgment or decree, or any other instrument to which Buyer is subject or
to which it is a party or violate any restriction or limitation of any to which
it is bound, including any law, rule, regulation or guideline.
5.4. Authorization. Buyer has all necessary power and authority to
enter into and perform the actions contemplated by this Agreement in accordance
with the terms and conditions hereof. The execution and delivery of this
Agreement, and the performance by Buyer of its obligations contained in this
Agreement, have been duly approved by Buyer's Board of Directors.
5.5. Litigation. There is no litigation, proceeding or governmental
investigation pending or threatened against Buyer relating to the transactions
contemplated by this Agreement. There is no outstanding order, decree or
stipulation issued by any federal state or local authority to which Buyer is a
party which adversely affects or may adversely affect the purchase of the
Property by Buyer or the performance of Buyer's obligations under the documents
to be delivered by Buyer as required hereby, including but not limited to the
Note, the Mortgage, the Assignment of Leases, or the Lithographics Assignment of
Lease or such other assignment of lease as relates to a lease, if any, entered
into pursuant to Section 9.12 hereof.
6.1 Title.
(i) Title to the Property at Closing shall be fee simple title, free and
clear of all liens, encumbrances, easements or other matters effecting title
except those items set forth on Exhibit G attached hereto (the "Permitted
Encumbrances").
(ii) If at the Closing, Sellers are unable to convey title to the
Property free and clear of all encumbrances except the Permitted Encumbrances,
then Sellers shall have the right, by written notice to Buyer, to extend the
date of Closing for thirty (30) days to effect a cure of the offending title
condition(s). If Sellers do not so elect to postpone the Closing as provided
in
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this Section 6.1(ii) so as to have additional time to cure a title defect or
if at the end of such extension period title to the Property is not free and
clear of all encumbrances except the Permitted Encumbrances, then Buyer shall
have the option: (a) of accepting such title as Seller can convey without an
abatement in the Purchase Price or (b) of terminating this Agreement by written
notice to Sellers. If Buyer shall exercise its right to terminate this
Agreement pursuant to this Section 6.1(ii), all obligations and liabilities of
the parties hereto by reason of this Agreement (except those obligations and
liabilities specifically set forth herein to survive termination) shall be
deemed at an end.
6.2 Investigations and Contingencies.
(i) For purposes of this Agreement, the term "Contingency Period" shall
mean the period commencing on the date of this Agreement and ending at 5:00
p.m., Hartford, Connecticut time, on the thirtieth (30th) day following the date
hereof (or if such thirtieth (30th) day following the date hereof is not a
Business Day then on the next succeeding Business Day.
(ii) At any time during the Contingency Period, subject to the terms of
this Section 6.2(ii), Buyer shall have the right, personally or through its
engineers, surveyors, architects or such other parties as Buyer shall designate,
to enter the Property to survey the Property and to inspect the physical
components of the Property (the "Investigations"). Such Investigations shall be
made at Buyer's sole cost and expense. In conducting such Investigations, Buyer
covenants and agrees: (i) to provide Sellers with at least twenty-four (24)
hours notice (telephonic or otherwise) of the date or dates on which Buyer
desires to conduct an Investigation; (ii) to repair all damages to the Property
resulting from any such Investigations; and (iii) to indemnify and hold harmless
Sellers from any and all damages and/or injuries to third persons caused by such
Investigations, which indemnity shall survive the termination of this Agreement
and the Closing. Buyer agrees that it shall take no action in derogation of the
rights of the tenants at the Property. Sellers shall have the right to have a
representative accompany Buyer or Buyer's representatives during any such
Investigation if Sellers so desire. Before Buyer or any of Buyer's
representatives, agents or contractors shall be allowed access to the Property,
Buyer shall provide Sellers with a copy
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of a policy of public liability and property damage insurance with respect to
the Property, or a certificate of insurance with respect thereto, in which: (A)
the limits shall not be less than $1,000,000 single limit and (B) Sellers shall
be named as additional insureds. Such insurance shall be issued by insurers of
recognized responsibility, licensed to do business in the State of Connecticut
and otherwise in commercially reasonable form and substance. Buyer shall not
cause any physically invasive investigations of the Premises to be conducted
without the written consent of Sellers, which consent shall not be unreasonably
withheld, delayed or conditioned.
(iii) Buyer agrees that all reports and other information generated by
Buyer and Buyer's agents and consultants shall be kept confidential and shall
not be disclosed to any other persons, other than Buyer's attorneys, advisors
and prospective lenders who shall agree to keep such information confidential.
Notwithstanding the foregoing, Buyer may disclose such information if required
by law or pursuant to a court order or subpoena, provided that Buyer shall first
notify Seller of any such required disclosure.
(iv) If during the Contingency Period, Buyer discovers that (a) any of
the buildings or other improvements located on the Property or the current use
of the Property are in violation of any applicable zoning regulations; (b) that
any of the Permitted Encumbrances are located on the Property in such a manner
that they interfere, or the exercise of the rights of the holders of such
Permitted Encumbrances would cause interference, with the use of any of the
buildings located on the Property; (c) that any of the buildings located on the
Property are located in a flood plain, flood plain hazard area or designated
wetlands area; (d) that any of the buildings or other improvements located on
the Property encroach over the boundary lines or set-back lines of the Property;
(e) that there are any structural or mechanical defects or conditions in the
buildings on the Property which reasonably could have a materially adverse
effect on the value of the Property or reasonably could impair the health and
safety of future occupants of the Property; (f) the Property does not have
access to a publicly dedicated street; or (g) public utilities required to
operate the mechanical facilities of the Property are not available to the
Property, then in such event, Buyer shall have the right to terminate this
Agreement by giving Sellers written notice thereof (the "Buyer's Notice") on or
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before 5:00 p.m. Hartford, Connecticut time, on the last day of the Contingency
Period. The Buyer's Notice shall set forth the reason for such termination.
Buyer's failure to deliver the Buyer's Notice on or before 5:00 p.m. Hartford,
Connecticut time, on the last day of the Contingency Period shall be deemed a
waiver of Buyer's right to terminate this Agreement pursuant to this Section
6.2.
(v) If Buyer elects to terminate this Agreement pursuant to this Section
6.2, all rights and liabilities of the parties hereto by reason of this
Agreement (except those obligations and liabilities specifically set forth
herein to survive termination) shall be deemed at an end.
(vi) If Buyer terminates this Agreement as provided in this Section
6.2, or if Sellers terminate this Agreement due to a default by Buyer hereunder,
Buyer shall provide Sellers with the product of the Investigations (including
written reports and the like) without cost to Sellers. The provisions of this
Section 6.2(vi) shall survive termination of this Agreement.
6.3. Title Review. (i) For purposes of this Agreement, the term "Title
Review Period" shall mean the period commencing on the date of this Agreement
and ending at 5:00 p.m. Hartford, Connecticut time on the fifth (5th) Business
Day following the date hereof. If during the Title Review Period, Buyer is
dissatisfied with Sellers' title to the Property, then Buyer shall have the
right to terminate this Agreement by giving Sellers written notice thereof (the
"Title Notice") on or before 5:00 p.m. Hartford, Connecticut time, on the last
day of the Title Review Period. The Title Notice shall set forth the reason for
such termination. Buyer's failure to deliver the Title Notice on or before 5:00
p.m. Hartford, Connecticut time on the last day of the Title Review Period shall
be deemed a waiver of Buyer's right to terminate this Agreement pursuant to this
Section 6.3.
(ii) If Buyer elects to terminate this Agreement pursuant to this
Section 6.3, all rights and liabilities of the parties hereto by reason of this
Agreement (except those obligations and liabilities specifically set forth
herein to survive termination) shall be deemed at an end.
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7. Procedure for Claims and Indemnification.
7.1. Buyer and Sellers acknowledge that claims with respect to any
indemnification obligations shall be made in accordance with, and governed by,
the applicable terms and conditions set forth in Article X and XI of the Asset
Agreement, as the case may be, subject however, to any modifications thereto
resulting from specific provisions herein, with the same force and effect as if
such terms and conditions were set forth herein with such changes therein as are
necessary to reflect the inclusion of such terms and conditions herein dealing
with the subject matter of this Agreement as opposed to that of the Asset
Agreement.
8. Environmental Covenants of Sellers and Buyer.
8.1. Connecticut Transfer Act. As an express condition to Buyer's
obligation to close, Sellers shall be responsible for full compliance with the
provisions of Section 22a-134 et seq. of the Connecticut General Statutes (the
"Transfer Act"), including without limitation (i) the determination as to the
applicability of the Transfer Act to the transfer of the Property contemplated
by this Agreement, (ii) the signing and filing of any appropriate Transfer Act
form with the Connecticut Department of Environmental Protection ("DEP"), (iii)
the payment of any Transfer Act form filing fee, (iv) the performance of any
remediation or other activities required to comply with any Transfer Act form
filed with the DEP in accordance with any applicable DEP regulations or required
by the DEP in connection with any such Transfer Act form filing, and (v) the
payment of all costs, liabilities and expenses directly or indirectly related to
the foregoing subparagraphs (i) through (iv), inclusive.
8.2. Remediation of Contaminated Soil Area.
(a) Based on the Environmental Reports, Sellers and Buyer agree that
certain "yellow-stained" soil contamination in the form of elevated levels of
chromium, cadmium and arsenic is present on the Property in the area identified
in the Environmental Reports (the "Contaminated Soil Area"). Sellers and Buyer
further agree that the Contaminated Soil Area (whether ultimately determined
through the provisions of the remediation required hereunder to be more or less
extensive than that
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supposed in the Environmental Reports) shall be remediated by Sellers at
Sellers' sole cost and expense, and that such remediation shall include, if
required, any necessary post-remediation groundwater monitoring. Sellers shall
conduct such remediation prior to Closing by filing an Environmental Conditions
Assessment Form with the DEP pursuant to Section 22a-133x of the Connecticut
General Statutes.
(b) In the course of performing any investigation or remediation
activities, including any post-remediation or other groundwater monitoring
activities, Sellers shall have the right to (i) appeal by appropriate and
diligent actions any determination by a regulatory agency concerning the
appropriate requirements for remediation, and (ii) seek application of any
alternative or site specific remediation standards or any variances approved by
a regulatory agency that Sellers deem necessary or desirable, provided that the
application of such alternative or site specific remediation standards or of
such variance shall be consistent with the use of the Property for commercial or
industrial purposes.
(c) Sellers' pre-Closing investigation and remediation
responsibilities pursuant to this Section 8 shall be deemed complete and fully
satisfied upon delivery by Sellers to Buyer of either (i) a written
determination from the DEP stating that, except for any post-remediation or
other groundwater monitoring activities deemed necessary by the DEP, no further
remediation is required at the Property as of the date of the DEP letter, or
(ii) a written determination or verification, as appropriate, by a Licensed
Environmental Professional ("LEP") stating that, except for any post-remediation
or other groundwater monitoring activities deemed necessary by the LEP, no
further remediation is required at the Property as of the date of the LEP
determination or verification. Upon delivery by Sellers to Buyer of a DEP or
LEP determination (the "Determination") pursuant to subparagraphs (i) or (ii)
above, the sixty (60) day period referenced in Section 3.1 of this Agreement
shall commence, and Sellers shall be responsible for filing an appropriate form
pursuant to the Transfer Act at the Closing. Sellers' responsibilities pursuant
to any Transfer Act form filed by Sellers shall continue until the fifth
anniversary of the date of the Closing under the Other Real Estate Sale
Agreement (such date the "Environmental Termination Date"), after which
Environmental Termination Date Sellers shall have no further
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responsibility whatsoever for investigation or remediation of the Property. If
Sellers do not deliver the Determination within forty-eight (48) months after
the Closing Date under the Asset Agreement, either Buyer or Sellers may
terminate this Agreement. Upon any such termination, all rights and liabilities
of the parties hereto by reason of this Agreement (except those obligations and
liabilities specifically set forth herein to survive termination) shall be
deemed at an end.
(d) In the course of performing their obligations under this Section
8, Sellers shall keep Buyer fully apprised of both the schedule for, and scope
of, any investigation and remediation activities contemplated by this Section 8,
and shall take all reasonable steps to ensure that the investigation and
remediation activities do not unreasonably interfere with the use of the
Property by Buyer or Buyer's tenants. Sellers shall provide all data and
information with respect to investigation and remediation activities, including
copies of draft data, information or reports, to Buyer, and provide Buyer with
full opportunity to make reasonable comments and recommendations to Sellers
regarding such materials, which comments and recommendations shall be considered
in good faith by Sellers but shall not be binding on Sellers. Sellers shall
provide Buyer with a minimum of forty-eight (48) hours prior notice of any
meetings between Sellers and representatives of regulatory agencies such that
Buyer and/or its representatives has the opportunity to attend such meetings for
the sole purpose of observing such meetings.
8.3. Comprehensive Environmental Response, Compensation, and Liability
Information System. As indicated in the Environmental Reports, a number of
properties in the Farmington Industrial Park, including the Property, are listed
on the United States Environmental Protection Agency's ("EPA") Comprehensive
Environmental Response, Compensation, and Liability Information System
("CERCLIS"). Until the Environmental Termination Date, Sellers shall be
responsible for all costs and liabilities associated with any Environmental
Claim or other Losses directly or indirectly relating to or arising out of the
fact that the Property is included on CERCLIS, including but not limited to any
Comprehensive Environmental Response, Compensation and Liability Act action or
claim (a "CERCLA Claim"), asserted by any governmental agency or third party
against Sellers or Buyer on or before the Environmental Termination Date;
provided,
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however, that Sellers shall not be responsible for any portion of any
Environmental Claim, or Losses related to any Environmental Claim, to the
extent that the same relates to or was caused by activities of the Buyer or
Apex Acquisition Corp., or any tenants of Buyer or Apex Acquisition Corp., on
the Property or on surrounding properties after the Closing Date.
8.4. Known Environmental Issues. Until the Environmental Termination
Date, Sellers, jointly and severally, shall be responsible for any Environmental
Claim, or Losses related to such Environmental Claim, which directly or
indirectly arise out of, result from, or relate to, any of the contamination or
non-compliance with Environmental Laws identified in the Environmental Reports;
provided, however, that Sellers shall not be responsible for any portion of any
Environmental Claim, or Losses related to any Environmental Claim, to the extent
that the same relates to or was caused by activities of the Buyer or Apex
Acquisition Corp., or any tenants of Buyer or Apex Acquisition Corp., after the
Closing Date.
8.5. Pre-Closing Environmental Issues. Sellers shall be fully
responsible for the performance of any remediation or other activities required
under Environmental Laws in connection with any spill or release of any
Hazardous Substances which occurs on, at or under, or which migrates onto the
Property between the date of this Agreement and the Closing Date.
8.6. Covenant Not To Xxx; Comfort Letter. Until the Environmental
Termination Date, Sellers shall cooperate with and assist Buyer, at Buyer's
cost, in the event that Buyer elects to seek, under relevant provisions of
Environmental Law, a "covenant not to xxx" from the DEP, a "comfort letter" from
the EPA, or other similar forms of government assistance for which Buyer may be
eligible as the result of Buyer's consummation of the transaction contemplated
by this Agreement.
8.7. Termination of Seller's Obligations. Notwithstanding any other
provision of this Agreement to the contrary, the obligations of Sellers pursuant
to this Section 8 shall terminate as of the Environmental Termination Date, and
Sellers shall have no further obligations whatsoever with respect to the
Property.
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8.8. Buyer's Environmental Responsibility Post-Closing. Buyer covenants
that on and after the Closing Date, it will be solely responsible for full
compliance with, and will be solely responsible for any failure of its tenants
to comply with all applicable Environmental Laws and will be solely responsible
for maintaining full compliance with all material Environmental Permits required
for the ongoing operation of the Property for Buyer's businesses. Buyer shall be
fully responsible for the performance of any remediation or other activities
required under Environmental Law in connection with any spill or other release
of any Hazardous Substances which occurs on, at or under the Property, or which
migrates from surrounding properties, resulting from Buyer's ownership or
operation of the Property, or the operations or activities of Buyer's tenants,
after the Closing.
8.9. Buyer's Cooperation With Sellers. (i) Buyer shall use commercially
reasonable efforts not to interfere with or increase the cost of the performance
of Sellers' obligations under this Section 8, and shall cooperate, at Sellers'
cost, with any appeal by Sellers of any determination by a regulatory agency
regarding the appropriate standards for any remediation, and any application by
Sellers for any alternative or site specific remediation standards, or any
variances, consistent with industrial or commercial use sought by Sellers from
the DEP and/or the EPA; provided, however, that Buyer shall not be required to
take any action or refrain from taking any action which it reasonably believes,
after consultation with counsel, would constitute a violation of law by Buyer or
a violation of law for which Buyer is reasonably likely to have responsibility.
(ii) Buyer acknowledges that Sellers intend to complete their
obligations under this Section 8 in a way which minimizes any necessary
investigation or remediation costs but that is in full compliance with all
applicable Environmental Laws. In the event that Buyer interferes with Sellers'
efforts to complete their obligations under this Section 8, including but not
limited to completion of either pre-Closing or post-Closing investigation or
remediation activities, or if Buyer modifies its operations or activities in a
way that materially increases the cost of performing Sellers' obligations, and
such action constitutes a breach by Buyer of Section 8.9, Buyer shall reimburse
Sellers for any additional costs Sellers would not have
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otherwise incurred in performing their obligations under this Section 8.
8.10. Buyer's Acknowledgement of Form of DEP or LEP Determination.
Buyer explicitly acknowledges that it is aware that the Determination obtained
by Sellers in accordance with the terms of this Section 8, and particularly
Section 8.2 (c)(i) or (ii) of this Agreement, is likely to contain language
indicating that investigation and/or remediation of the Property may be required
at any point in the future, and Buyer agrees that as long as such Determination
substantially indicates that, except for any required post-remediation or other
groundwater monitoring activities, no further remediation of the Property is
required as of the date of the Determination, any such language in such
Determination shall not render such Determination ineffective in carrying out
the purposes of this Section 8 and commencing the sixty (60) day period
referenced in Section 3.1 of this Agreement.
8.11. Access. Buyer shall xxxxx Xxxxxxx and their agents reasonable
access to the Property along materially the same terms as Sellers provided Buyer
access to Sellers' Property under the License for Access dated March 4, 1998 to
perform any necessary investigation and/or remediation activities required by
this Section 8. Buyer also shall xxxxx Xxxxxxx and their agents reasonable
access to the Property as necessary for Sellers to pursue any actions against
third parties, including but not limited to Howmet Corporation and insurance
carriers, relating to any environmental liabilities incurred by Sellers.
8.12. Communications and Coordination With Agencies. In recognition of
the desirability of coordinating communications with environmental agencies,
unless otherwise required by applicable law, Buyer shall allow Sellers to serve
as the sole liaison with any regulatory agencies involved in any of the matters
which are the responsibility of Sellers pursuant to this Section 8; provided,
however, that Buyer may attend any meetings between Sellers and representatives
of regulatory agencies for the sole purpose of observing such meetings. In the
event that Buyer communicates with any agency in a manner that interferes with
Sellers' efforts to complete their obligations pursuant to this Section 8 in the
most cost effective manner possible, and such communication constitutes a breach
by Buyer of Section 8.9 hereof, including but not limited to the completion of
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investigation and remediation activities in a way that minimizes the costs of
such activities, Buyer shall reimburse Sellers for any additional costs Sellers
would not have otherwise incurred in performing their obligations pursuant to
this Section 8. Notwithstanding anything in this Agreement to the contrary, if
(a) any CERCLA Claim is made directly against Buyer or Apex Acquisition Corp.,
and Sellers do not agree, by assuming control of the defense of such CERCLA
Claim after receipt of the notice required pursuant to the Asset Agreement, that
all Losses incurred in connection with such CERCLA Claim are fully covered by
Sellers' indemnification obligations to the Article X Indemnitees of the Asset
Agreement; (b) a CERCLA Claim is made against Sellers and such CERCLA Claim, on
its face, raises issues concerning the allocation of potential environmental
related liabilities between the periods before and after the Closing hereunder
or, in defending such a CERCLA Claim, Sellers posit defenses which raise such
allocation issues; and/or (c) a criminal investigation or complaint concerning
environmental matters is made which involves Apex Acquisition Corp. and/or the
Buyer, Apex Acquisition Corp., Buyer and its representatives shall be free to
take whatever actions they deem appropriate to protect their interests,
including but not limited to, having discussions with any regulatory agency, and
any such actions by Buyer, Apex Acquisition Corp. or its representatives will
not in any way affect the rights of Buyer or Apex Acquisition Corp. to
indemnification from Sellers pursuant to the Asset Agreement.
8.13. Definitions. Capitalized terms used in this Section 8 but not
otherwise defined in this Agreement shall have the meanings ascribed to them in
the Asset Agreement.
8.14. Buyer Acknowledgement. Buyer acknowledges that the nature of any
investigation or remediation activities to be performed by Sellers pursuant to
this Agreement (the "Remediation Process") is that the Remediation Process is
likely to involve substantial discussions with representatives of regulatory
agencies concerning the nature and scope of activities required pursuant to
applicable law and regulations, and potentially discretionary decisions by
representatives of such regulatory agencies and/or an LEP. Buyer further
acknowledges and agrees that notwithstanding the "compliance with applicable
law" provisions of Section 8.9 and Section 8.12 hereof, Buyer shall not utilize
the nature of the Remediation Process as a reason for involving itself in, or
interfering with, the activities of the
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Sellers, except in the manner contemplated in Section 8.2(d) hereof in complying
with their obligations pursuant to this Agreement.
9. MISCELLANEOUS.
9.1. Benefit and Assignment. This Agreement shall be binding upon and,
except as otherwise provided herein, inure to the benefit of, the parties
hereto, their heirs, successors, assignees, wholly owned subsidiaries, and
beneficiaries in interest. Neither Buyer nor Sellers may assign any of its
rights under this Agreement without the prior written consent of the other,
which consent may be withheld in such party's sole discretion; provided,
however, Buyer shall have the right to designate a wholly-owned subsidiary to
take title to the Property at the Closing so long as Buyer guarantees to
Sellers, pursuant to a written guarantee in form and substance satisfactory to
Sellers, the full and prompt performance of all of such designee's obligations
under the conveyance documents to be executed and delivered as provided in this
Agreement. In the event of the appointment of such designee to take title to
the Property at Closing, such designee's name shall be substituted for the name
"EDAC TECHNOLOGIES CORPORATION" in the transaction documents which are attached
as Exhibits hereto. No assignment approved of by either party shall relieve the
other party of its obligations under this Agreement.
9.2. Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
9.3. Expenses. Except as otherwise herein provided, all expenses
incurred in connection with this Agreement or the transactions herein provided
for shall be paid by either Sellers or by Buyer, whichever incurs the same.
9.4. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
9.5. Headings. All section headings in this Agreement are inserted for
convenience only and shall not modify or affect
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the construction or interpretation of any provision of this Agreement.
9.6. Exhibits. All of the Exhibits referred to herein are intended to
be and are hereby specifically incorporated herein by reference.
9.7. Amendment, Modification and Waiver. This Agreement may not be
modified, amended or supplemented except by mutual written agreement of all the
parties hereto. Either party may waive in writing any term or condition
contained herein and intended to be for its benefit; provided, however, that no
waiver shall be deemed or construed as a future or continuing waiver of any term
or condition. Each amendment, modification, supplement or waiver shall be in
writing and signed by the party to be charged.
9.8. Notices. Any notices to be given hereunder shall be deemed given
and sufficient if in writing and delivered by hand or reputable overnight
courier, mailed by registered or certified mail or telecopies, in the case of
Sellers, to:
Apex Machine Tool Company, Inc.
c/o Xxxxx X. Xxxxxx
0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: 000-000-0000
With a copy to:
Murtha, Cullina, Xxxxxxx and Xxxxxx LLP
CityPlace I
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Xx., Esquire
Facsimile No.: 000-000-0000
And, in the case of Buyer, to:
Edac Technologies Corporation
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxx, President
Facsimile No.: 000-000-0000
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With a copy to:
Reinhart, Boerner, Van Deuren
Xxxxxx & Rieselbach, s.c.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esquire
Facsimile No. 414-298-8097
or to such other address as Sellers or Buyer may designate by notice in writing
to the other. Notices shall be deemed given upon receipt.
9.9. Damage or Condemnation Prior to Closing.
9.9.1. Destruction. If, prior to Closing, any or all of the
Property is rendered untenable or is destroyed by a casualty, subject to Buyer's
right to terminate this Agreement as specifically set forth herein, Buyer shall
close the transaction contemplated by this Agreement on the date set forth and
pursuant to all other terms and conditions of this Agreement without any
reduction in the Purchase Price. If any such damage or destruction occurs, and
Sellers shall not have completed the repair of such damage prior to the Closing,
Sellers shall pay to Purchaser an amount equal to the insurance proceeds payable
to and actually received by Seller from such insurer of the Property relating to
such damage plus the amount of any deductible on the casualty insurance policy
maintained by Sellers on the Property minus the costs actually incurred by
Sellers in repairing such damage. The payment of the proceeds will be made at
the Closing if Sellers have received such proceeds by that date. If not,
Sellers agree to deliver such proceeds to Purchaser promptly after receipt of
such proceeds or to assign such proceeds to Purchaser. In connection with the
foregoing, Sellers hereby represent that they are maintaining or causing to be
maintained and will continue to maintain or caused to be maintained through the
Closing Date, casualty insurance on the Improvements as provided in Exhibit H
hereof.
9.9.2. Condemnation. If, prior to Closing, all or any portion of
the Property is taken or threatened to be taken under power of eminent domain,
subject to Buyer's right to terminate this Agreement as specifically set forth
herein, Buyer
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shall close the transaction contemplated by this Agreement (with such reduction
in the Property as shall have been caused by such eminent domain proceeding)
without any reduction in the Purchase Price, and at the Closing, Sellers shall
pay (if the same have already been collected) or assign to Buyer any cumulative
condemnation awards (less the costs of Sellers in collecting the same). Any
portion of such condemnation awards in excess of the Purchase Price shall be
retained by and paid to Sellers.
9.10. Mutual Contingency. Buyer's and Sellers' obligations to close
the purchase and sale of the Property are contingent on the closing of the
transactions contemplated by the Asset Agreement and the Other Real Estate Sale
Agreement; provided, however, that if the failure to close the Asset Agreement
and the Other Real Estate Sale Agreement is due (i) to the default of Buyer,
Buyer will be obligated to close this transaction and (ii) to the default of
Apex or Sellers, Sellers shall be obligated to close this transaction.
9.11. Default. If either Buyer or Sellers default under this
Agreement, the non-defaulting party shall have all remedies available at law and
in equity.
9.12. Sellers' Right to Lease Property.
(a) In the event that prior to the Closing, Lithographics or any
other tenant at the Property pursuant to a lease entered into pursuant to the
terms of this Section 9.12 shall default in the payment of their rent under
their lease, Sellers shall provide notice of such default to Buyer and Buyer
shall have a period of fifteen (15) days from receipt of such notice to elect to
pay to Sellers on a monthly basis (on the first day of each month) from the time
of such default until the time of Closing, an amount equal to the monthly rental
which Sellers would have received from such tenant during such period had their
been no default (the first payment to be due on the first day of the month
following such notice from Sellers but to include a pro rata payment for the
period from such default by such tenant to the day preceding the date such
payment is made and the first fully monthly payment by Buyer). Such election
must be made by delivering to Sellers, within the aforesaid fifteen (15) day
period, written notice of Buyer's agreement to make such payments to Sellers and
any such payments due and outstanding at the Closing shall be paid in cash by
Buyer to
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Sellers at the Closing. If (i) Buyer shall not provide written notice to
Sellers within the aforesaid fifteen (15) day period of its election to make
such monthly payments to Seller, (ii) Buyer shall make a timely election to make
such monthly payments but shall thereafter become delinquent in such payments
for more than five (5) days or (iii) Buyer shall notify Seller that Buyer does
not wish to make such monthly payments, then, in any such event, Sellers shall
have the right to lease the Property to other parties at such rentals and upon
such other terms and conditions as Sellers in their reasonable discretion may
deem advisable, including but not limited to a lease term of up to five (5)
years from commencement of such lease. Any such lease entered into by Sellers
pursuant to this Section 9.12 shall be deemed a Permitted Encumbrance hereunder
and Buyer shall be obligated to take title to the Property at the Closing
subject to the terms and conditions of any such lease.
(b) Sellers agree that they shall not take any action to extend the
Lithographics Lease for any period beyond the date which is forty-eight (48)
months after the Closing Date under the Asset Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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9.13 Attorney's Fees. In the event of any litigation arising out of
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and costs.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
BUYER:
EDAC TECHNOLOGIES CORPORATION
By:
-----------------------------
Name:
Title:
Hereunto Duly Authorized
SELLERS:
--------------------------------
Xxxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
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EXHIBIT C
MORTGAGE DEED, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
THIS MORTGAGE DEED, ASSIGNMENT OF LEASES AND SECURITY AGREEMENT, made this
______ day of _____________, 1998, by and between EDAC TECHNOLOGIES
CORPORATION, a Wisconsin corporation having an office at 1806 New Britain
Avenue, Farmington, Connecticut (the "Mortgagor"), and XXXXXX X. XXXXXX of
_____________, Connecticut and XXXXX X. XXXXXX of ____________, Connecticut
having a mailing address of ________________________, Connecticut _____
(collectively the "Mortgagee").
WITNESSETH
That for good and valuable consideration and to secure the payment of an
indebtedness in the sum of _____________________________________________________
_________________________________________ DOLLARS ($_____________) lawful money
of the United States to be paid according to a certain Promissory Note of even
date herewith and by this reference made a part hereof, as said note may be
hereinafter amended, modified or extended (the "Note") and all other
obligations and liabilities due or to become due the Mortgagee hereunder, under
the Note or other Loan Documents as herein defined, all amounts, sums and
expenses paid hereunder by the Mortgagee according to the terms hereof and all
other obligations and liabilities of the Mortgagor under this Mortgage and the
Note, together with all interest on the said indebtedness, obligations,
liabilities, amounts, sums and expenses (all of the aforesaid, collectively,
the "Indebtedness"), the Mortgagor hereby mortgages, gives, grants, bargains,
sells, warrants, conveys, aliens, remises, releases, assigns, sets over and
confirms to the Mortgagee, its successors and assigns forever:
All those certain lots, pieces or parcels of land more particularly
described in Schedule A annexed hereto and by this reference made a part
hereof;
TOGETHER with the buildings and improvements now or hereafter located on
said land and all right, title and interest, if any, of the Mortgagor in and to
the streets and roads, opened or proposed, abutting said land to the center
lines thereof, and strips and gores within or adjoining said land, the air space
and right to use said air space above said land, all rights of ingress and
egress on or within said land, all easements now or hereafter affecting said
land, royalties and all rights
29
appertaining to the use and enjoyment of said land, including, without
limitation, air, lateral support, alley, drainage, mineral, water, oil and gas
rights (said land, together with said building and improvements, the property
and other rights, privileges and interests encumbered or conveyed hereby,
collectively, the "Premises");
TOGETHER with all fixtures, including, without limitation, all gas and
electric fixtures, radiators, heaters, boilers, elevators and motors, bathtubs,
sinks, toilets, basins, pipes, faucets and other air-conditioning, plumbing,
and heating fixtures, refrigerating plant, carpeting, and appurtenances in
which the Mortgagor now or hereafter has a possessory or title interest, and
all building material, supplies and equipment now or hereafter delivered to the
Premises and intended to be installed therein; all other fixtures of whatever
kind and nature at present contained in or hereafter affixed to any building
standing on the Premises in which the Mortgagor has a possessory or title
interest; and all renewals or replacements thereof or articles in substitution
thereof; and all proceeds and profits thereof, all of which shall be deemed to
be fixtures and an accession to the freehold and a part of the realty as
between the parties hereto, and all persons claiming by, through or under them,
and shall be deemed to be a portion of the security for the Indebtedness. If
the lien of the Mortgage on any fixtures be subject to a lease agreement,
conditional sales agreement or chattel mortgage covering such property, then,
in the event of any default hereunder, all the right, title and interest of the
Mortgagor in and to any and all deposits made thereon or therefor are hereby
assigned to the Mortgagee, together with the benefit of any payments now or
hereafter made thereon (the items set forth in this paragraph and in the next
eight immediately succeeding paragraphs being sometimes hereinafter
collectively referred to as the "Collateral," and the Collateral and the
Premises being hereinafter collectively referred to as the "Mortgaged
Property"). Notwithstanding anything to the contrary herein, Collateral does
not include any items which are not related to fixtures and specifically
excludes machinery and equipment;
TOGETHER with all interests, estates or other claims, both in law and in
equity, which the Mortgagor now has or may hereafter acquire in the Premises;
TOGETHER with all rights and easements, expressed or implied to use and
maintain for the benefit of the Mortgaged Property all drains, basins, sewers,
pipes, conduits, wires, and other facilities that furnish utility or other
services to the same;
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TOGETHER with all sales agreements, and other agreements affecting the
sale of the Mortgage Property now or hereinafter entered into and the deposits
under purchase or sales or issuing from the Mortgaged Property;
TOGETHER with the right, in the name and on behalf of Mortgagor, to appear
in and defend any action or proceeding brought with respect to the lien created
hereby on the Mortgaged Property and to commence any action or proceedings to
protect the interest of the Mortgagee therein;
TOGETHER with all leases, lettings, tenancies and licenses of the Premises
or any part thereof now or hereafter entered into and all right, title and
interest of the Mortgagor thereunder, including, without limitation, rights,
incomes, profits, revenues, royalties, bonuses, accounts, contract rights and
general intangibles under any and all of such leases, lettings, tenancies or
licenses, and the right to receive and collect the same payable thereunder;
TOGETHER with all unearned premiums, accrued, accruing or to accrue under
insurance policies now or hereafter obtained by the Mortgagor with respect to
the Mortgaged Property and all judgments, awards of damages and settlements
hereafter made as a result of or in lieu of any taking of the Premises or any
part thereof or any interest therein under the power of eminent domain, or for
any damage (whether caused by such taking or otherwise) to the Premises or the
improvements thereon or any part thereof or interest therein, including any
award for change of grade of streets;
TOGETHER with all proceeds of the conversion, voluntary or involuntary, of
the Mortgaged Property or any part thereof into cash or liquidated claims,
including, without limitation, proceeds of hazard and title insurance, subject
to the terms and conditions of this Mortgage; and
TOGETHER with all right, title and interest of the Mortgagor in and to all
options, extensions, improvements, betterments, renewals, substitutions 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 Mortgaged Property, 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 herein;
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TO HAVE AND TO HOLD the Mortgaged Property, with all the privileges and
appurtenances to the same belonging, unto the Mortgagee and its successors and
assigns to their use and behoof forever.
AND the Mortgagor covenants and agrees with the Mortgagee as follows:
ARTICLE I
Representations and Covenants of the Mortgagor
Section 1.1. Payment of the Indebtedness. Except with respect to
Permitted Set-Offs as defined in Section 4.7 hereof, the Mortgagor will
punctually pay the Indebtedness in immediately available funds as provided
herein, in the Note or in any other loan documents (the "Loan Documents")
delivered to the Mortgagee in connection with the loan (the "Loan") evidenced
by the Note, all in the coin and currency of the United States of America which
is legal tender for the payment of public and private debts.
Section 1.2. Title to the Mortgaged Property. The Mortgagor warrants
that: (a) the Mortgagor has fee simple title to the premises described in
Schedule A and good indefeasible title to the balance of the Mortgaged
Property, free and clear of liens and encumbrances, except those exceptions to
title set forth in the policy of title insurance insuring the lien of this
Mortgage; (b) it has full power and lawful authority to encumber the Mortgaged
Property in the manner and form herein set forth; (c) it owns or will own all
the Collateral now or hereafter affixed to and/or used in connection with, the
Premises, including any substitutions or replacements thereof, free and clear
of liens and claims; (d) this Mortgage is and will remain a valid and
enforceable first lien on the Mortgaged Property; (e) it will preserve such
title and will forever WARRANT AND DEFEND the same to the Mortgagee and will
forever WARRANT AND DEFEND the validity and priority of the lien hereof against
the claims of all persons and parties whomsoever; and (f) that this covenant
shall not be extinguished by any foreclosure hereof but shall run with the
Premises.
Section 1.3. Maintenance of the Mortgaged Property. The Mortgagor shall
maintain the Mortgaged Property in good repair, shall comply with the
requirements of any governmental authority claiming jurisdiction over the
Mortgaged Property within 30 days after an order containing such requirement
has been issued by any such authority and promptly shall repair, restore,
replace or rebuild any part of the Mortgaged Property which may be damaged or
destroyed by any casualty whatsoever or may be affected by any
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condemnation proceeding, and Mortgagor shall complete and pay for, within
reasonable time, any structure that at any time is in the process of
construction on the Premises. If at any time the then existing use or
occupancy of any part of the Premises shall, pursuant to any zoning or other
law, ordinance or regulation, be permitted only so long as such use or
occupancy shall continue, the Mortgagor shall promptly advise the Mortgagee
thereof and shall not cause or permit such use or occupancy to be discontinued
without the prior written consent of the Mortgagee, which consent shall not be
unreasonably withheld. The Mortgagor shall not, without the prior written
consent of the Mortgagee, which consent shall not be unreasonably withheld,
threaten, commit, permit or suffer to occur any waste, material alteration,
demolition or removal of the Mortgaged Property or any part thereof; provided,
however, that fixtures included within the Collateral may be removed from the
Premises if the Mortgagor concurrently therewith replaces same with similar
items of equal or greater value, free of any lien, charge or claim of superior
title and by such removal and replacement Mortgagor shall be deemed to have
subjected such property to the lien of this Mortgage, and; provided further,
however, that fixtures included within the Collateral which are no longer
necessary for the operation of the Mortgaged Property need not be so replaced
by Mortgagor . Mortgagor shall immediately notify Mortgagee of any such
replacement and shall further execute such mortgage, security agreement or
other documents as Mortgagee may require with respect thereto.
Section 1.4. Insurance; Restoration. The Mortgagor shall keep the
buildings and improvements now or hereafter located within the Premises insured
against damage by fire and the other hazards covered by a standard fire, broad
form extended coverage and vandalism and malicious mischief insurance policy
for the full insurable value thereof (which, unless the Mortgagee shall
otherwise agree in writing, shall mean the full repair and replacement value
thereof without reduction for depreciation or co-insurance). In addition, the
Mortgagee may require the Mortgagor to carry such other insurance, in such
amounts as may from time to time be reasonably required by institutional
lenders, against insurable risks which at the time are commonly insured against
in the case of premises similarly situated, due regard being given to the site
and the type of building, construction, location, utilities and occupancy or
any replacements or substitutions therefor, including, without limitation, war
risk, nuclear explosion, demolition and contingent liability from the operation
of "nonconforming" improvements on the Premises and earthquake. The Mortgagor
shall additionally keep the buildings and improvements now or hereafter located
in or on the Premises insured against loss by flood if the Premises are located
in an area identified by the Secretary of Housing and Urban Development
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as an area having special flood hazards and in which flood insurance has been
made available under the National Flood Insurance Act of 1968 (and any
successor act thereto) in an amount at least equal to the outstanding
Indebtedness or the maximum limit of coverage available with respect to the
buildings under said Act, whichever is less, which policy or policies shall
have endorsed thereon a long-form, non-contributory mortgagee clause in the
name of the Mortgagee, so and in such manner and form that the Mortgagee shall
at all times have and hold the said policy or policies as collateral and
further security for the payment of the Indebtedness until the full payment of
the Indebtedness. The proceeds of insurance paid on account of any damage or
destruction to the Premises or any part thereof shall be paid over to the
Mortgagee to be applied as hereinafter provided.
(a) The Mortgagee shall have the option in its sole discretion to apply
any insurance proceeds it may receive pursuant to this Section 1.4 to the
payment of the Indebtedness or to allow all or a portion of such proceeds to be
used for the restoration of the Premises. If any insurance proceeds are
used for the restoration of the Premises, then such use shall be governed as
hereinafter provided in subparagraphs (b), (c), (d), (e) and (f).
(b) In the event of damage or destruction to the Premises, the Mortgagor
shall give prompt written notice thereof to the Mortgagee and shall, to the
extent permitted by law, promptly commence and diligently continue to repair,
restore and rebuild the Premises so damaged or destroyed (the "work") to
restore the Premises in full compliance with all legal requirements and so that
the Premises shall be at least equal in value and general utility as they were
prior to the damage or destruction.
(c) The Mortgagor shall perform the work diligently and in good faith.
(d) All insurance proceeds recovered by the Mortgagee on account of
damage or destruction to the Premises which the Mortgagee elects to be used for
the restoration of the Premises, less the cost, if any, of such recovery and of
paying out such proceeds (including attorneys' fees), shall, upon the written
request of the Mortgagor, be applied by the Mortgagee to the payment of the
cost of the work referred to in subparagraph (b) above and shall be paid out
from time to time to the Mortgagor or, upon the happening of an Event of
Default, at the Mortgagee's option, directly to the contractor, subcontractors,
materialmen, laborers, engineers, architects and other persons rendering
services or materials for the work, as said work progresses except as otherwise
hereinafter provided, but subject
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to the following conditions, any of which the Mortgagee may waive:
(1) If the work to be done is structural, an architect chosen
by Mortgagor and reasonably satisfactory to Mortgagee (the
"Architect") shall be in charge of the work;
(2) Each request for payment shall be made on seven days
prior notice to the Mortgagee and shall be accompanied by a
certificate of the Architect if one is required under subparagraph
(d)(1) above, otherwise by the President or Chief Financial
Officer of the Mortgagor, stating that (i) all of the work
completed has been done in compliance with the plans
and specifications approved by the Architect, if applicable, and
in accordance with all provisions of law; (ii) the sum requested
is justly required to reimburse the Mortgagor for payments by the
Mortgagor to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers, architects or
other persons rendering services or materials for the work
(giving a brief description of such services and materials), and
that when added to all sums, if any, previously paid out by the
Mortgagee does not exceed the value of the work done to the date
of such certificate; and (iii) the amount of such proceeds
remaining in the hands of the Mortgagee will be sufficient on
completion of the work to pay for the same in full (giving in
such reasonable detail as the Mortgagee may require an estimate
of the cost of such completion);
(3) Each request shall be accompanied by waivers of liens
satisfactory to the Mortgagee covering that part of the work
previously paid for, if any, and by a title report prepared by a
title company or attorney at law or by other evidence, all to be
reasonably satisfactory to the Mortgagee, that there has not been
filed with respect to the Premises any mechanic's lien or other
lien or instrument for the retention of title in respect of any
part of the work not discharged of record and that there exist no
encumbrances on or affecting the Premises other than encumbrances,
if any, which are set forth in the title policy issued to the
Mortgagee insuring the lien of this Mortgage;
(4) There shall be no Event of Default under this Mortgage;
and
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(5) The request for any payment after the work has been completed
shall be accompanied by a copy of any certificate or certificates
required by law, if any, to render occupancy of the Premises legal.
Upon completion of the work and payment in full therefor, or upon failure
on the part of the Mortgagor promptly to commence or diligently to continue the
work, or at any time upon request by the Mortgagor, the Mortgagee may apply the
amount of any such proceeds then or thereafter in the hands of the Mortgagee to
the payment of the Indebtedness.
(e) In the event the work to be done is not structural, then the net
insurance proceeds held by the Mortgagee for application thereto shall be paid
to the Mortgagor by the Mortgagee upon completion of the work, subject to the
provisions of the foregoing subparagraphs (b), (c) and (d), except those which
are applicable only if the work to be done is structural.
(f) If within 60 days after the occurrence of any damage or
destruction to the Premises requiring structural work, the Mortgagor shall
fail to commence promptly such repair, restoration and rebuilding, or if
thereafter the Mortgagor fails diligently to continue such repair, restoration
and rebuilding or is delinquent in the payment to contractors, mechanics,
materialmen or others of the costs incurred in connection with such work, or,
in the case of any damage or destruction not requiring structural work, as
determined by the Mortgagee, in order to restore the Premises, if the Mortgagor
shall fail to repair, restore and rebuild promptly the Premises so damaged or
destroyed then, in addition to all other rights herein set forth, and after
giving the Mortgagor 10 days' written notice of the nonfulfillment of one or
more of the foregoing conditions, the Mortgagee, or any lawfully appointed
receiver of the Premises may, at their respective options, unless the Mortgagor
has cured the default, perform or cause to be performed such repair,
restoration and rebuilding, and may take such other steps as they deem
advisable to perform such repair, restoration and rebuilding, and upon 24 hours
prior notice to the extent reasonably necessary for any of the foregoing
purposes, and the Mortgagor hereby waives, for the Mortgagor and all others
holding under the Mortgagor, any claim against the Mortgagee and such receiver
arising out of anything done by the Mortgagee or such receiver pursuant hereto,
other than willful misconduct or gross negligence and the Mortgagee may apply
insurance proceeds (without the need to fulfill any other requirements of this
Section 1.4) to reimburse the Mortgagee, or such receiver, for all amounts
expended or incurred by them, respectively, in connection with the performance
of such work, and any excess
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costs shall be paid by the Mortgagor to the Mortgagee upon demand.
(g) The Mortgagor shall (1) provide public liability insurance with
respect to the Premises providing for limits of
liability reasonably acceptable to the Mortgagee for both injury to or death of
a person and for property damage.
(h) All insurance policies required pursuant to this Section 1.4 other
than those policies required by subparagraph (g) above shall be endorsed to
name the Mortgagee as an insured thereunder, as its interest may appear, with
loss payable to the Mortgagee, without contribution, under a long-form, non-
contributory mortgagee clause. All insurance policies required pursuant to
subparagraph (g) above shall name Mortgagor as an additional insured. All such
insurance policies and endorsements shall be fully paid for and contain such
provisions and expiration dates and be in such form and issued by such
insurance companies licensed to do business in the State of Connecticut, with a
rating of "A-VI" or better as established by Best's Rating Guide or an
equivalent rating with such other publication of a similar nature as shall be
in current use, as shall be approved by the Mortgagee. Without limiting the
foregoing, each policy shall provide that such policy may not be cancelled or
materially changed except upon 30 days prior written notice of intention of
non-renewal, cancellation or material change to the Mortgagee and that no act
or thing done by the Mortgagor shall invalidate the policy as against the
Mortgagee. In the event the Mortgagor fails to maintain insurance in
compliance with this Section 1.4, the Mortgagee may, but shall not be obligated
to, obtain such insurance and pay the premium therefor and the Mortgagor shall,
on demand, reimburse the Mortgagee for all sums, advances and expenses incurred
in connection therewith. Not less than 30 days prior to the expiration date of
each policy furnished pursuant to this Section 1.4, the Mortgagor shall deliver
to the Mortgagee copies of all original renewal policies, marked "premium paid"
or accompanied by other evidence of payment satisfactory to the Mortgagee
certified by the insurance company or authorized agent as being true copies,
together with the endorsements thereto required hereunder.
(i) In the event of foreclosure of this Mortgage or other transfer of
title or assignment of the Mortgaged Property in extinguishment, in whole or in
part, of the Indebtedness, all right, title and interest of the Mortgagor in
and to all policies of insurance required by this Article or otherwise obtained
by the Mortgagor shall inure to the benefit of and pass to the Mortgagee or any
purchaser or transferee of the Mortgaged Property, as the case may be. The
Mortgagor in such event hereby irrevocably appoints the Mortgagee its attorney
in fact, coupled
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with an interest, to endorse any checks, drafts or other instruments
representing any proceeds of such insurance, whether payable by reason of loss
thereunder or otherwise.
Section 1.5. Maintenance of Existence. The Mortgagor shall do or cause
to be done all things necessary to (a) preserve and keep in full force and
effect its existence, franchises, rights and privileges under the laws of the
state of its formation and qualification; and (b) preserve and maintain in full
force and effect its franchises, rights, privileges and good standing under the
laws of each state in which the Mortgagor is transacting business or in which
property owned by the Mortgagor is located, except for any such failure which
would not have a material adverse effect on Mortgagor, and maintain any
required duly authorized agent for service of process in each such state.
Section 1.6. Taxes and Other Charges. Except as provided in Section 4.16
hereof, the Mortgagor shall pay and discharge, not later than the last day on
which the same may be paid without penalty or interest, all taxes of every kind
and nature, sewer rents, charges for water or for setting or repairing meters,
and all other utilities serving the Premises, and assessments, levies, permits,
inspection and license fees and all other charges imposed upon or assessed
against 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 (collectively "Impositions") and the
Mortgagor shall exhibit to the Mortgagee within 10 days after the final date
that items specified in this Section 1.6 can be paid without interest or
penalty, validated receipts showing the payment of such taxes, sewer rents,
water, meter and other utility charges, assessments, levies, fees and other
charges which may be or become a lien on the Mortgaged Property. Should the
Mortgagor default in the payment of any of the foregoing, the Mortgagee may,
with written notice to Mortgagor, but shall not be obligated to, pay the same
or any part thereof and the Mortgagor shall, on demand, reimburse the Mortgagee
for all amounts so paid. The Mortgagor shall not enter into any written or
oral agreement which has the effect of deferring the payment of Impositions
which can be assessed, levied, confirmed, imposed or become a lien on the
Mortgaged Property without the consent of the Mortgagee; provided, however,
that if the Impositions can be paid in installments, Mortgagor shall be
entitled to pay the same in such installments.
Mortgagor hereby assigns to Mortgagee all rights of Mortgagor now or
hereafter arising in and to any refunds of Impositions, or other charges
relating to the Premises or the debt secured hereby. If upon receipt of any
such refund by Mortgagee, no Event of Default shall have occurred hereunder and
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then be continuing, then Mortgagee shall promptly pay over the same to
Mortgagor, if an Event of Default shall have occurred and then be continuing,
Mortgagee may apply said refund in reduction of any amount secured hereby.
Section 1.7. Condemnation Awards. In the event all or any part of the
Premises are taken in eminent domain or condemnation proceedings, or by
alteration in grade of any street or any reacquisitions by any redevelopment or
other governmental agency or for public use or in any other manner, all of the
expense, including appraisers' and attorneys' fees, reasonably incurred therein
by Mortgagee shall be paid by Mortgagor to Mortgagee upon demand, with interest
at the Default Rate as defined in the Note, from the date of such demand until
paid, and shall be secured by this Mortgage. The Mortgagor, immediately upon
obtaining knowledge of the institution of any proceedings for the condemnation
of the Premises or any portion thereof, will notify the Mortgagee of the
pendency of such proceedings. The Mortgagee may participate in such
proceedings, and the Mortgagor from time to time will deliver to the Mortgagee
all instruments reasonably requested by it to permit such participation. All
awards and compensation or other taking, or purchase in lieu thereof (but only
to the extent to pay the Indebtedness), of the Premises or any part thereof
which are awarded for the taking of the portion of the Mortgaged Property which
constitutes real property, are hereby assigned to and shall be paid to the
Mortgagee. The Mortgagor hereby authorizes the Mortgagee to collect and
receive such awards and compensation, to give proper receipts and acquittances
therefor and, in the Mortgagee's sole discretion, to apply the same toward the
payment of the Indebtedness, notwithstanding the fact that the Indebtedness may
not then be due and payable, or to the restoration of the Premises (or to the
applicable portion thereof). The Mortgagor, upon request by the Mortgagee,
shall make, execute and deliver any and all instruments requested for the
purposes of confirming the assignment of the aforesaid awards and compensation
to the Mortgagee, free and clear of any liens, charges or encumbrances of any
kind or nature whatsoever. In the event Mortgagee shall be prohibited from
intervening and participating in any such condemnation proceedings by the court
having jurisdiction over such proceedings, Mortgagor shall consult with
Mortgagee in connection with such proceedings, and Mortgagor shall not enter
into any agreement with regard to the Mortgaged Property or any award or
payment on account thereof unless Mortgagee shall have consented thereto in
writing, which consent shall not be unreasonably withheld.
Notwithstanding any taking by condemnation, there shall be no abatement or
reduction in the amounts of payments owed by Mortgagor hereunder or under the
Note in the event of any
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condemnation affecting the Mortgaged Property, and Mortgagor shall continue to
make all payments or principal and interest provided for herein and therein.
Any awards therefor actually received and retained by Mortgagee shall be applied
by Mortgagee against the principal due at maturity under the Note. Any reduction
in the principal resulting from the application by Mortgagee of such awards
shall be net of all collection costs, disbursements, expenses, and reasonable
counsel fees and shall be deemed to take effect only on the date of actual
receipt of such award by Mortgagee. In the event of any loss or damage to the
Mortgaged Property occasioned by condemnation, Mortgagor shall promptly commence
and diligently pursue to completion the repair, restoration, and rebuilding of
the Mortgaged Property to as nearly as possible its value, condition, and
character immediately prior to such loss or damage.
Section 1.8. Mortgage Authorized. The Mortgagor hereby warrants and
represents that the execution and delivery of this Mortgage, the Note and the
other Loan Documents has been duly authorized and that there is no provision in
the Mortgagor's charter documents or any other agreement to which Mortgagor is
a party or by which any of its property is bound, requiring further consent for
such action by any other entity or person; the Mortgagor is duly organized,
validly existing and in good standing under the laws of the State of Wisconsin
and duly qualified in each jurisdiction in which it is required to be so
qualified except in those jurisdictions where the failure to be so qualified
would not have a material adverse effect on Mortgagor and has (a) all necessary
and material licenses, authorizations, registrations and approvals and (b) full
power and authority to own its properties and carry on its business as
presently conducted; the Mortgagor has the power, authority and legal right to
carry on the business now conducted by them and to engage in the transactions
contemplated by this Mortgage, the Note and the other Loan Documents; and the
execution and delivery by and performance of the Mortgagor's obligations under
this Mortgage, the Note and the other Loan Documents has been duly authorized
by all necessary corporate action by the Mortgagor and will not result in the
Mortgagor being in default under any provision of its charter documents or any
other agreement to which Mortgagor is a party or by which any of its property
is bound.
Section 1.9. Costs of Defending and Upholding the Lien. If any action or
proceeding is commenced in which the Mortgagee is made a party, or in which, in
the reasonable opinion of the Mortgagee, it becomes necessary to defend or
uphold the lien of this Mortgage, the Mortgagor shall, on demand, reimburse the
Mortgagee for all expenses (including, without limitation,
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reasonable attorneys' fees and appellate attorneys' fees) incurred by the
Mortgagee in any such action or proceeding.
Section 1.10. Additional Advances and Disbursements. Except as provided
in Section 4.16 hereof, the Mortgagor shall pay when due all payments and
charges on all liens, encumbrances, ground and other leases, and security
interests which may be or become superior, equal or inferior to the lien of
this Mortgage, and upon an Event of Default with respect to this obligation,
the Mortgagee shall have the right, but shall not be obligated, to pay, with
notice to the Mortgagor, such payments and charges, and the Mortgagor shall, on
demand, reimburse the Mortgagee for amounts so paid. In addition, upon an
Event of Default with respect to this obligation, the Mortgagee shall have the
right, but shall not be obligated, to cure such default in the name and on
behalf of the Mortgagor. All sums advanced and reasonable expenses incurred at
any time by the Mortgagee pursuant to this Section 1.10 or as otherwise
provided under the terms and provisions of this Mortgage or under applicable
law shall bear interest from the date that such sum is advanced or expense
incurred, to and including the date of reimbursement, computed at the Default
Rate, as defined in the Note.
Section 1.11. Cost of Enforcement. The Mortgagor agrees to bear and pay
all expenses (including reasonable attorneys' fees and appellate attorneys'
fees) of or incidental to the enforcement of any provision hereof, or the
enforcement, compromise or settlement of this Mortgage or the Indebtedness, and
for the curing thereof, or for defending or asserting the rights and claims of
the Mortgagee in respect thereof, by litigation or otherwise. All rights and
remedies of the Mortgagee shall be cumulative and may be exercised
independently, singly or concurrently. Notwithstanding anything herein
contained to the contrary, to the extent permitted by law, the Mortgagor: (a)
hereby waives trial by jury; (b) will not (1) 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, (2) 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, nor (3) 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; (c)
hereby expressly waives all benefit or advantage of
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any such law or laws; (d) covenants not to hinder, delay or impede the
execution of any power herein granted or delegated to the Mortgagee, but to
suffer and permit the execution of every power as though no such law or laws
had been made or enacted; and (e) waives all right to have the Mortgaged
Property marshalled upon any foreclosure hereof.
Section 1.12. Mortgage Taxes. The Mortgagor shall pay any and all taxes,
charges, filing, registration and recording fees, excises and levies imposed
upon the Mortgagee by reason of its ownership of the Note or this Mortgage or
any mortgage supplemental hereto, any security instrument with respect to any
fixtures or personal property owned by the Mortgagor at the Premises and any
instrument of further assurance, other than income, franchise and doing
business taxes, and shall pay all stamp taxes and other taxes required to be
paid on the Note or necessary for filing or recording any Loan Documents. In
the event the Mortgagor fails to make such payment within five days after
written notice thereof from the Mortgagee, then the Mortgagee shall have the
right, but shall not be obligated, to pay the amount due, and the Mortgagor
shall, on demand, reimburse the Mortgagee for said amount.
Section 1.13. Intentionally Omitted.
Section 1.14. Intentionally Omitted
Section 1.15. Transfers, Encumbrances and Liens. Mortgagor recognizes
that any secondary or junior financing placed upon the Mortgaged Property could
(a) divert funds which would otherwise be used to pay the Indebtedness
evidenced by the Note and secured by the Loan Documents; (b) result in
acceleration and foreclosure by any such junior encumbrancer, which could force
Mortgagee to take measures and incur expenses to protect its security; and (c)
impair Mortgagee's right to accept a deed in lieu of foreclosure from
Mortgagor, as a foreclosure by Mortgagee would be necessary to clear the title
to the Mortgaged Property. Mortgagor covenants and agrees that so long as the
Indebtedness secured by this Mortgage is outstanding, there will be no
secondary financing, mortgage, or encumbrance with respect to the Mortgaged
Property; and Mortgagor will not suffer to exist any encumbrance, including
liens of mechanics or materialmen, other than those listed in the policy of
title insurance dated the date hereof insuring the lien of this Mortgage,
whether such mortgage or encumbrance is prior or subordinate to this Mortgage
and the lien hereof. All agreements and obligations to pay commissions or fees
in connection with the leasing of any portion of the Mortgaged Property shall
be subject and subordinate to this Mortgage and shall not be enforceable
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against Mortgagee or any purchaser at a foreclosure sale hereunder, or their
respective successors.
Any encumbrance, pledge, transfer or other alienation upon or of the
Mortgaged Property or any change in the present ownership of all or any part of
the Mortgaged Property shall, at the option of the Mortgagee, constitute an
Event of Default hereunder.
Mortgagor agrees that in the event the ownership of the Mortgaged Property
or any part thereof becomes vested in a person other than the Mortgagor,
Mortgagee may, without notice to Mortgagor, deal in any way with such successor
or successors in interest (whether immediate or remote) with reference to this
Mortgage and the Note and other sums hereby secured without in any way
vitiating or discharging Mortgagor's liability hereunder or upon the Note and
other sums hereby secured. No sale of the Mortgaged Property and no
forbearance to any person with respect to this Mortgage and no extension to any
person of the time for payment of the Note and other sums hereby secured given
by Mortgagee shall operate to release, discharge, modify, change, or affect (i)
the original liability of Mortgagor either in whole or in part; or (ii) the
covenants of Mortgagor under this Section 1.15.
Section 1.16. Intentionally Omitted
Section 1.17. Assignment of Leases. As further security for the payment
of the sums secured hereby, Mortgagor hereby transfers, assigns and sets over
to Mortgagee all leases heretofore and hereafter entered into by Mortgagor
relating to portions or all of the Mortgaged Property, together with all
modifications, supplements, extensions and renewals thereof now existing or
hereafter made, and also together with the rights to xxx for, collect and
receive all rents, additional rents, and other sums or payments due in all of
said leases provided to be paid to Mortgagor thereunder, and also together with
the rights of Mortgagor to receive, hold and apply all bonds, deposits, and
security in all of said leases provided to be furnished to the Mortgagor
thereunder, and also together with the rights of Mortgagor to enforce any and
all of the agreements, terms, covenants and conditions provided in all of said
leases and to give notices thereunder; provided, however, that as long as
Mortgagor shall not have defaulted in the performance of any obligation,
covenant or agreement under any collateral instrument further securing payment
of the Indebtedness and, in addition, no event shall have occurred which would
give Mortgagee the right to declare the Indebtedness due and payable, then
Mortgagor shall have the license to collect, but not more than one month in
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advance, all rents, additional and percentage rents and other sums payable
under said leases.
Mortgagor shall not otherwise assign or pledge any lease of the Mortgaged
Property, or any part thereof, or the rights to xxx for, collect and receive
any rents or other sums payable thereunder and shall enforce all of the
agreements, terms, covenants or conditions to be performed by lessees
thereunder, and shall perform every obligation of Mortgagor thereunder.
Nothing contained in this Mortgage, and/or no exercise by the Mortgagee of
its rights hereunder, shall be construed to obligate Mortgagee to perform any
of the covenants of Mortgagor under any of the leases hereinabove assigned or
shall be deemed to constitute Mortgagee a mortgagee in possession in the
absence of any actual entry into and taking possession of the Mortgaged
Property by Mortgagee.
Mortgagor shall perform, observe, and comply with all of the terms,
covenants, and conditions of the Assignment of Leases and Rentals of even date
herewith to be recorded in the Farmington Land Records and of any other of the
Loan Documents as if such terms, covenants, and conditions were set forth
herein.
Mortgagor shall furnish Mortgagee at any time, upon reasonable written
demand, with a lease ratification and estoppel agreement as to any lease
affecting the Premises, in form and substance satisfactory to Mortgagee, which
shall be executed by Mortgagor and by the lessee (provided, however, that
Mortgagor shall only be obligated to use its reasonable efforts to obtain
execution by each such lessee and shall not be in default hereunder if the
lessee under any such lease fails to sign such an agreement or does not return
the same in a timely manner so long as all future leases contain a requirement
that the lessee provide such an agreement) stating the terms of the lease, the
tenancy, and the status of rent payments, and, if such be the case, that there
exist no defaults thereunder and that all work required to be performed by the
lessor under the lease has been completed; agreeing that no future
modifications or amendments shall be effected without the written consent of
Mortgagee, and providing that the lessee shall attorn to Mortgagee in the event
Mortgagee shall become the owner of the Premises.
The foregoing rights given the Mortgagee are intended to be complementary
to any rights given the Mortgagee under any separate assignment of leases from
the Mortgagor to the Mortgagee and shall be construed accordingly.
Section 1.18. Indemnity. Mortgagor will indemnify and hold the Mortgagee
harmless against any loss, liability, damage,
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cost or expense, including, without limitation, any judgment, attorney's
fee, costs of appeal bonds and printing costs, arising out of or relating to or
incurred in connection with any suit, action or proceeding that might in any
way, in the reasonable opinion of the Mortgagee, affect the priority or
effectiveness of the lien of this Mortgage.
Section 1.19. Environmental Protection.
(a) Definitions. The term "Polluting Substance" shall mean any
hazardous, toxic, or polluting waste or substance including (without limiting
the generality of the foregoing) any of the following: "hazardous waste" (as
defined in the regulations adopted under RCRA, defined below); oil or
petroleum products; "chemical liquids or solid, liquid, or gaseous products"
(as those terms are used in the Superlien Statute, defined below); asbestos;
polychlorinated biphenyls; formaldehyde compounds, explosives, and radioactive
materials. The term "Environmental Law" shall mean any statutory, regulatory,
or decisional law pertaining to protection of the environment or to any
Polluting Substance, including (without limiting the generality of the
foregoing) the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 ("CERCLA"); the Resource Conservation and Recovery Act of
1976 ("RCRA"); and Title 22a "Environmental Protection" of the Connecticut
General Statutes; including particularly Sections 22a-448 through 22a-457 of
the Connecticut General Statutes (the "Superlien Statute"); as any of them may
be amended from time to time, with the regulations promulgated thereunder. The
term "release" as used herein shall include both the meaning specified in
CERCLA and a "spill" as defined in Section 22a-452c of the Connecticut General
Statutes. In the event any Environmental Law is amended to broaden the meaning
of any term defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment.
(b) Covenants and Agreements. Mortgagor covenants and agrees that,
except where a breach of the following individually or in the aggregate (I)
would not be reasonably likely to have a material adverse effect on Mortgagor's
ability to perform its obligations pursuant to this Mortgage or (II) would not
be reasonably likely to materially impair the value of the Mortgaged Property:
(i) Mortgagor will not release any Polluting Substance on the Mortgaged
Property or on any properties adjacent to the Mortgaged Property in material
contravention of any applicable Environmental Law; (ii) Mortgagor will not
become involved in operations at the Mortgaged Property involving unlawful use
of Polluting Substances or any other activity that would violate any applicable
Environmental Law or that would be reasonably likely to lead to the imposition
on
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Mortgagor of liability under any Environmental Law; (iii) Mortgagor, at its
sole cost and expense, will comply in all material respects with the
requirements of all applicable Environmental Laws; (iv) Mortgagor will notify
Mortgagee promptly in the event of the material presence (to the extent not
known by Mortgagee at the time of the execution of the Purchase Agreements) or
release of any Polluting Substance at or affecting the Mortgaged Property in
material contravention of any applicable Environmental Law and give to
Mortgagee a copy of any notice of violations of any Environmental Law received
by Mortgagor; (v) in the event any Polluting Substance is found at the
Mortgaged Property in material contravention of any applicable Environmental
Law, Mortgagor will ensure compliance with all applicable Environmental Laws
with respect to the removal or remediation of such Polluting Substance; (vi)
Mortgagor will keep the Mortgaged Property free and clear of any lien imposed
pursuant to any applicable Environmental Law; and (vii) Mortgagor will include
in all future leases of any portion of the Mortgaged Property provisions
requiring compliance with all Environmental Laws and reporting of information
regarding such compliance to Mortgagor and Mortgagee.
(c) Site Assessments. Mortgagor agrees to permit Mortgagee, at its
reasonable election after written notice to Mortgagor, at any time and from
time to time, after the occurrence and during the continuance of an Event of
Default or if Mortgagee has good reason to suspect the presence of a Polluting
Substance on the Mortgaged Property in material contravention of any applicable
Environmental Law, to cause one or more environmental site assessments of the
Mortgaged Property to be undertaken. An environmental site assessment may
include, to the extent reasonably necessary, a detailed visual inspection of
the Mortgaged Property, including, without limitation, all storage areas,
storage tanks, drains, dry xxxxx, and leaching areas, as well as the taking of
samples of soil, surface water, and ground water and such other investigation
or analysis as is reasonably necessary or appropriate to address such Event of
Default or the suspected presence of a Polluting Substance in material
contravention of any applicable Environmental Law.
(d) Mortgagee's Right to Cure. In the event Mortgagor fails to comply
with the requirements of any applicable Environmental Law in material
contravention of any applicable Environmental Law, unless (I) such failure
would not be reasonably likely to have a material adverse effect on Mortgagor's
ability to perform its obligations pursuant to this Mortgage and (II) such
failure would not be reasonably likely to materially impair the value of the
Mortgaged Property, Mortgagee may at its election, but without the obligation
so to do: (i) give such notices, cause such work to be performed at the
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Mortgaged Property (or other land included in the same property description
with the Mortgaged Property within three years prior to such failure of
compliance), and take any and all such other reasonable actions necessary in
order to cure such failure of material compliance; or (ii) by the payment of
any assessment, claim, or charge imposed by any governmental authority, be
thereby subrogated to the rights of such governmental authority, but no such
payment shall be deemed to relieve Mortgagor from any default hereunder or
impair any right or remedy consequent thereon. Any amounts paid by Mortgagee
as a result of Mortgagor's failure to comply herewith, together with interest
thereon at the Default Rate set forth in the Note, shall be immediately due and
payable by Mortgagor to Mortgagee and until paid shall be added to and become a
part of the Entire Indebtedness, having the benefit of the lien hereby created
and of its priority, and the same may be collected as a part of the Entire
Indebtedness in any suit hereon or upon the Note, to the extent permitted by
law, but no such advance shall be deemed to relieve Mortgagor from any default
hereunder or impair any right or remedy consequent thereon. Mortgagor hereby
grants to Mortgagee a license to enter the Mortgaged Property and remove any
Polluting Substance that is in material contravention of any applicable
Environmental Law from the Mortgaged Property.
(e) Indemnity. Mortgagor further covenants and agrees unconditionally
and absolutely to defend, indemnify, and forever hold Mortgagee harmless from
and against all fines, charges, fees, response costs (including cleanup,
removal or mitigation), losses, liabilities, damages, costs and expenses,
causes of actions, suits, claims, demands, and judgments of any nature suffered
or incurred by Mortgagee and arising out of or in connection with any of the
following:
(i) the presence, or any release, of any Polluting Substance at or
affecting the Mortgaged Property;
(ii) the application, or any claim of application, of any Environmental
Law to the Mortgaged Property or the operation thereof, including
any requirement for clean-up of any Polluting Substance or the
assertion of any lien because of any release;
(iii) any failure by Mortgagor to comply with the terms of any order of
the Connecticut Department of Environmental Protection or any
other federal, state, or municipal governmental authority under any
Environmental Law; and
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(iv) any losses as a result of a lien in favor of the Commissioner of
Environmental Protection or any other person having priority over
this Mortgage.
Such expenses shall include (without limiting the generality of the foregoing)
reasonable engineers' and reasonable attorneys' fees and the costs of any
environmental audits or other tests required by Mortgagee in its discretion to
ascertain whether any Polluting Substance in material contravention of any
applicable Environmental Law is present at or affects the Mortgaged Property.
Such losses shall include the assertion of any lien relating to any release at
or affecting the Mortgaged Property or any other land included in the same
property description with the Mortgaged Property at any time within three (3)
years prior to such release.
(f) Survival. For a period of five years beginning on the date of
Closing under the Asset Agreement, as defined in Section 4.7 hereof, this
indemnity shall extend to Mortgagee as holder of the Mortgage, mortgagee in
possession, or as successor in interest to Mortgagor as owner of the Mortgaged
Property by virtue of foreclosure or acceptance of a deed in lieu of
foreclosure and shall survive the repayment of the Indebtedness and the
cancellation, release, or discharge of this Mortgage.
(g) Relation to Purchase Agreements. (i) Notwithstanding any other
provision of this Section 1.19 to the contrary, no provision in this Section
1.19 shall in any way change the respective obligations of Mortgagor and
Mortgagee pursuant to the Purchase Agreements, as defined in Section 4.7
hereof.
(ii) To the degree that any provision of either of the Purchase
Agreements conflicts with any provision of this Section 1.19, the provision of
the Purchase Agreements, as defined in Section 4.7 hereof, will control.
(iii) No provision of this Section 1.19 or any other portion of this
Mortgage shall be construed as requiring Mortgagor to indemnify Mortgagee from
or against any fines, charges, fees, response costs (including cleanup, removal
or mitigation), losses, liabilities, damages, costs and expenses, causes of
action, suits, claims, demands or judgments for which Mortgagor is indemnified
pursuant to either of the Purchase Agreements by Sellers and the Shareholders,
as those terms are used and defined in either of the Purchase Agreements as
defined in Section 4.7 hereof.
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Section 1.20. Validity of Loan Documents. This Mortgage, the Note and
the other Loan Documents are in all respects legal, valid and binding in
accordance with their respective terms and grant to the Mortgagee a direct,
valid and enforceable lien on and security title in and to the Mortgaged
Property. The Mortgage, the Note and the other Loan Documents have been
validly executed by the Mortgagor and are now binding on the Mortgagor and in
full force and effect and the Mortgagor and the other parties to the foregoing
instruments have faithfully performed all their obligations thereunder as of
the date hereof, and none of said other parties has asserted any claim of
default on the part of the Mortgagor.
Section 1.21. Intentionally Omitted
Section 1.22. Intentionally Omitted.
Section 1.23. Compliance with Requirements. Except with respect to
Environmental Laws (Mortgagor's compliance with which shall be governed under
Section 1.19 hereof), the Mortgagor shall comply promptly with all material
regulations, rules, ordinances, statutes, orders, decrees or other requirements
of all governmental authorities applicable to the Mortgaged Property or any
part thereof and shall furnish the Mortgagee, on demand, independent evidence
of such compliance.
Section 1.24. Compliance With Restrictive Covenants and Easements. The
Mortgagor shall comply with all restrictive covenants affecting the Premises
and shall fully perform each and every obligation of the Mortgagor under any
reciprocal agreement, easement, parking agreement or any other agreement
requiring the performance of the Mortgagor and affecting the Mortgaged
Property, including all agreements affecting the operation, maintenance or
repair of the Mortgaged Property or any easement appurtenant to or right-of-way
adjacent to any portion thereof.
Section 1.25. Priority of the Mortgage. The Mortgagor covenants and
agrees at all times to keep the Premises and all materials, equipment
and fixtures incorporated therein or to be used in connection therewith free
from any attachment or lis pendens, from any mechanics' or other liens or
notices arising from the furnishing of materials or labor and from all other
liens and encumbrances of any kind, including those arising from additional or
secondary financing (except real estate taxes not yet due and payable and
encumbrances approved by the Mortgagee), whether any such liens and
encumbrances be prior to or subject and subordinate to the Mortgage, and that
at no time will any notice of any contract or mechanics' liens be recorded.
The Mortgagor shall cause the prompt (but in no event later than 30 days after
imposition), full and unconditional release of all
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liens and encumbrances or pay, from time to time when the same shall
become due, all 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 or profits arising therefrom, and, in general, the Mortgagor shall do,
or cause to be done, at the cost of the Mortgagor and without expense to the
Mortgagee, anything necessary to fully preserve the lien of the Mortgage. In
the event the Mortgagor fails to make payment of such claims and demands and a
lien is attached to the Mortgaged Property, or any part thereof, or on the
revenues, rents, issues, income or profits arising therefrom, the Mortgagee
may, but shall not be obligated to, make payment thereof, and the Mortgagor
shall, on demand, reimburse the Mortgagee for all sums so expended. The
Mortgagor shall pay or cause to be paid prior to the time interest or penalties
would accrue thereon all taxes, charges, betterment or other assessments
relating to the Premises or the materials stored thereon and, upon request of
the Mortgagee, shall provide the Mortgagee with evidence of such payment
satisfactory to the Mortgagee. Prior to the execution thereof by the
Mortgagor, all easements affecting the Premises shall be submitted to the
Mortgagee for its approval, which approval with respect to utility easements
shall not be unreasonably withheld, accompanied by a plan in recordable form
showing the location thereof. The Mortgagee shall approve or disapprove such
easements within 30 days of receipt of such easements and plans and if the
Mortgagee fails to act within such period, then the Mortgagee shall be deemed
to have approved such easements. With respect to utility easements which are
approved by the Mortgagee, the Mortgagee shall agree to subordinate this
Mortgage to such easements on terms and conditions reasonably satisfactory to
the Mortgagee, provided the easements: (a) are to be fixed and located, (b)
will not encroach upon or under or over Improvements and other easements and
(c) do not materially affect the adequacy of the Mortgagee's security for the
payment of the Indebtedness.
Section 1.26. Independence of Premises. Mortgagor shall not by act or
omission permit any building or other improvements on premises not subject to
the lien of this Mortgage to rely on the Premises or any part thereof or any
interest therein to fulfill any municipal or governmental requirement for the
existence of such premises or such building or improvement; and no building or
other improvement on the Premises shall rely on any premises not subject to the
lien of this Mortgage or any interest therein to fulfill any governmental or
municipal requirement. Mortgagor shall not by act or omission impair the
integrity of the Premises as single subdivided zoning lots separate and apart
from all other premises.
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Section 1.27. General Representations, Covenants and Warranties.
Mortgagor represents and covenants that (a) Mortgagor is now able to pay its
debts as they mature, the fair market value of its assets exceed its
liabilities, and no bankruptcy or insolvency case or proceeding is pending or
contemplated by or against Mortgagor and (b) Mortgagor is not in default under
the terms of any material instrument evidencing or securing any indebtedness of
Mortgagor and there has occurred no event which would, if uncured or
uncorrected, constitute a default under any such material instrument with the
giving of notice, passage of time, or both.
ARTICLE II
Security Agreement
Section 2.1. Creation of Security Interest. The Mortgagor hereby grants
to the Mortgagee a security interest in the Collateral, including without
limitation any and all property of similar type or kind hereafter located on or
at the Premises in which the Mortgagor has a possessory or title interest, and
any proceeds thereof for the purpose of securing all obligations of the
Mortgagor set forth in this Mortgage.
Section 2.2. Warranties, Representations and Covenants of the Mortgagor.
The Mortgagor hereby warrants, represents and covenants as follows:
(a) Except for the security interest granted hereby, Mortgagor is, and as
to portions of the Collateral to be acquired after the date hereof will be, the
sole owner of the Collateral, free from any lien, security interest,
encumbrance or adverse claim thereon of any kind whatsoever. The Mortgagor
shall notify the Mortgagee of, and will defend the Collateral against, all
claims and demands of all persons at any time claiming the same or any interest
therein.
(b) Except as otherwise provided herein, the Mortgagor shall not further
encumber or grant a security interest in any of the Collateral or lease or
otherwise treat the same in any manner whereby the ownership or any beneficial
interest in any of the Collateral shall be held by any person or entity other
than Mortgagor without the prior written consent of the Mortgagee.
(c) The Collateral is not used or bought for personal, family or
household purposes.
(d) The Collateral shall be kept on or at the Premises, and the Mortgagor
shall not remove the Collateral from
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the Premises without the prior written consent of the Mortgagee, except such
portions or items of the Collateral as are in the process of being cleaned and
repaired or are consumed or worn out in ordinary usage, all of which shall be
promptly replaced by the Mortgagor.
(e) The Mortgagor maintains a place of business in the State of
Connecticut, and the Mortgagor shall immediately notify Mortgagee in writing of
any change in its place of business as set forth in the beginning of this
Mortgage.
(f) This Mortgage constitutes a Security Agreement as that term is
used in the Uniform Commercial Code of the State of Connecticut.
Section 2.3. Mortgage as Financing Statement. Carbon, photographic, or
other reproduction of this Mortgage or any financing statement relating to this
Mortgage shall be sufficient as a financing statement. This Mortgage is
effective and shall be effective as a financing statement filed as a fixture
filing with respect to all goods which are or are to become fixtures included
within the Premises and is to be filed for record in the real estate records of
the Office of the Town Clerk of the town where the Premises are
situated. The mailing address of Mortgagor and the address of Mortgagee from
which information concerning the security interest may be obtained are set
forth in the section hereof entitled "Notices".
Section 2.4. Uniform Commercial Code: Financing Statements. In addition
to any other rights and remedies availed to Mortgagee hereunder, Mortgagee
shall have all the rights of a secured party under the Connecticut Uniform
Commercial Code. Furthermore, to the extent permitted by law, Mortgagor hereby
authorizes Mortgagee to sign and file financing statements or continuation
statements at any time in respect of any of the Collateral without such
statements being executed by, or on behalf of, Mortgagor, but Mortgagor will,
however, at any time on request of Mortgagee, execute, or cause to be executed,
financing statements in respect of any Collateral. Mortgagor agrees to pay all
filing fees, including fees for filing continuation statements in connection
with such financing statements and to reimburse Mortgagee for all costs and
expenses of any kind incurred in connection therewith.
ARTICLE III
Default and Remedies
Section 3.1. Events of Default. The following shall constitute Events of
Default under this Mortgage:
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(a) failure to pay within 5 days of the date when due, any of the
following: (i) any installment of the interest which shall become due and
payable under the Note; or (ii) any other sums to be paid by Mortgagor under
the Note or under any of the Loan Documents; or
(b) there shall be a failure to pay when due any Imposition or insurance
premium when the same becomes due hereunder; or
(c) any insurance coverage required to be maintained by Mortgagor pursuant
to Section 1.4 of this Mortgage is cancelled, lapses, or is terminated and is
not immediately replaced with coverage complying with all the requirements of
this Mortgage so as to prevent any gap in coverage, or there is any other
default related to insurance; or
(d) default in the due observance or performance of any of the terms,
covenants or conditions contained in the Note (except for failure to make any
payment, in which case Section 3.1(a) shall apply), in this Mortgage, in the
Loan Documents or in any other agreement that the Mortgagor has with the
Mortgagee for more than 15 days after receipt from the Mortgagee of written
notice of such default, provided, however, that if (i) the curing of such
default cannot be accomplished with due diligence within said 15 day period,
(ii) Mortgagor commences to cure such default promptly after receipt of notice
thereof from Mortgagee and thereafter diligently and continuously prosecutes
the cure of such default, and (iii) the extension of the period for effecting a
cure herein provided for will not result in any material impairment of the
Mortgaged Property, or any portion thereof, or Mortgagee's lien thereon, then
such 15 day period shall be extended for such additional period of time as
shall be reasonably deemed necessary for Mortgagor so acting to cure such
default but in no event beyond thirty (30) additional days; provided further,
however, that such notice and grace period set forth in this subsection (d)
shall not apply to any other Event of Default expressly set forth in this
Section 3.1 or to any Event of Default defined as such in the Note, in this
Mortgage or in any of the other collateral documents relating to the loan, or
to any other covenant or condition with respect to which a grace period is
expressly provided elsewhere; or
(e) intentionally omitted; or
(f) the further assignment or encumbrance by the Mortgagor of the leases
or rents of the Premises or any part thereof without prior written consent of
the Mortgagee; or
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(g) unless the same are being contested as permitted pursuant to Section
4.16 hereof, the failure of the Mortgagor to pay or cause to be paid, before
any fine, penalty, interest or cost may be added thereto, all franchise taxes
and charges, and other governmental charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any kind and nature
whatsoever, including, but not limited to, assessments for public improvements
or benefits which are assessed, levied, confirmed, imposed or become a lien
upon the Mortgaged Property or become payable during the term of the Note or
this Mortgage; or
(h) except as permitted in Section 1.15 of this Mortgage, the conveyance,
assignment, sale or attempted sale, or other disposition of the Mortgaged
Property or the further mortgage, pledge, financing, refinancing or other
encumbrance by the Mortgagor of the Mortgaged Property or any part thereof; or
(i) if the Mortgagor consents to the appointment of a receiver, liquidator
or trustee of the Mortgagor or all or a material portion of its properties; or
(j) if a receiver, liquidator or trustee of the Mortgagor or all or a
material portion of its properties shall be appointed without the consent of
the Mortgagor and the same is not removed within 60 days; or
(k) if a petition in bankruptcy, an insolvency proceeding or a petition
for reorganization shall have been filed against the Mortgagor and same is not
withdrawn, dismissed, cancelled or terminated within 60 days; or
(l) if the Mortgagor is adjudicated bankrupt or insolvent or a petition
for reorganization is granted (without regard for any grace period provided for
herein); or
(m) if there is an attachment or sequestration of any of the material
property of the Mortgagor and same is not promptly discharged or bonded; or
(n) if the Mortgagor files or consents to the filing of any petition in
bankruptcy or commences or consents to the commencement of any proceeding under
the Federal Bankruptcy Act or any other law, now or hereafter in effect,
relating to the reorganization of the Mortgagor or the arrangement or
readjustment of the debts of the Mortgagor; or
(o) if the Mortgagor shall make an assignment for the benefit of its
creditors or shall admit in writing the inability
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to pay its debts generally as they become due or shall consent to the
appointment of a receiver, trustee or liquidator of all or material part of its
property; or
(p) if the Mortgagor shall cause or institute any proceeding for the
dissolution or termination of the Mortgagor; or
(q) if the Mortgagor ceases to do business or terminates its business
as presently conducted for any reason whatsoever; or
(r) any lien or claim of lien for labor, materials or, unless the
same are being contested as permitted pursuant to Section 4.16 hereof,
taxes (except for ad valorem taxes not yet due and payable) or otherwise shall
be filed against any of the Mortgaged Property and remain unsatisfied or
unbounded for a period of 30 days after the Mortgagor receives notice of filing
thereof.
(s) except as permitted or contemplated by the Purchase Agreements, as
defined in Section 4.16 hereof, Mortgagor is deprived of title, possession, or
control of the Mortgaged Property, or any part thereof, by process of operation
of law or order of any court; or
(t) any non-payment of any material indebtedness of Mortgagor (other
than the Note or other material indebtedness described herein) occurs if the
effect of such non-payment is to accelerate the maturity of such material
indebtedness or any other material indebtedness, the validity of which is not
being contested in good faith by appropriate proceedings.
Failure to exercise any option to accelerate upon the occurrence of an
Event of Default or other circumstance permitting the exercise of such option
shall not constitute a waiver of the default or of the right to exercise such
option at a later time so long as such default or other circumstance continues
to exist, and shall not constitute a waiver of the right to exercise such
option in the event of any other default or circumstance specified herein.
Section 3.2. Remedies. Upon the occurrence of any Event of Default, the
Mortgagee may take such action, without notice or demand, as it deems advisable
to protect and enforce its rights against the Mortgagor and in and to the
Mortgaged Property, 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, in its sole
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discretion, without impairing or otherwise affecting the other rights and
remedies of the Mortgagee:
(a) declare the entire unpaid Indebtedness to be immediately due and
payable; or
(b) enter into or upon the Premises, either personally or by its agents,
nominees or attorneys, and dispossess the Mortgagor and its agents and servants
therefrom, and thereupon the Mortgagee may (1) use, operate, manage, control,
insure, maintain, repair, restore and otherwise deal with all and every part of
the Premises; (2) complete any construction on the Premises in such manner and
form as the Mortgagee deems advisable; (3) make alterations, additions,
renewals, replacements and improvements to or on the Premises; (4) exercise all
rights and powers of the Mortgagor with respect to the Mortgaged Property,
whether in the name of the Mortgagor or otherwise, including, without
limitation, the right to make, cancel, enforce or modify leases, obtain and
evict tenants, and demand, xxx for, collect and receive all rents from the
Premises and every part thereof; and (5) apply the receipts from the Premises
to the payment of Indebtedness, in such order as the Mortgagee may determine
after deducting therefrom all expenses (including reasonable attorneys' fees)
incurred in connection with the aforesaid operations and all amounts necessary
to pay the taxes, assessments, insurance and other charges in connection with
the Mortgaged Property, as well as just and reasonable compensation for the
services of the Mortgagee, its counsel, agents and employees; or
(c) institute proceedings for the complete foreclosure of this Mortgage,
in which case the Mortgaged Property may be sold for cash or upon credit in one
or more parcels; or
(d) with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable law, institute proceedings for the partial
foreclosure of this Mortgage for the portion of the Indebtedness then due and
payable, subject to the continuing lien of this Mortgage for the balance of the
Indebtedness not then due; or
(e) institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein or in the
Note; or
(f) to the fullest extent permitted by law, recover judgment on the Note
either before, during or after any proceedings for the enforcement of this
Mortgage; or
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(g) at the option of Mortgagee and irrespective of whether or not
Mortgagee shall actually elect to declare the Indebtedness due and payable,
Mortgagee shall be entitled, at its option, to the appointment of a receiver of
the Mortgaged Property or the rents and profits of the Mortgaged Property, and
such receiver shall be appointed with or without notice and without regard to
the adequacy of any security held for the payment of the Indebtedness and other
sums secured hereby or the solvency of any person or persons liable for the
payment of such amounts. Such receiver may also be granted such extended
powers, duties, and authority as would be necessary or useful in the management
and operation of the Mortgaged Property, including without limitation the power
to enter into, modify, terminate, and enforce leases; pay Impositions and other
operating expenses; employ property managers; make payments of such portions of
the Indebtedness and in such order as Mortgagee may elect; and expend
reasonable sums in repair and maintenance of the Mortgaged Property.
(h) exercise any or all of the remedies available to a secured party under
the Connecticut Uniform Commercial Code, including, but not limited to: (1)
either personally or by means of a court appointed receiver, to take possession
of all or any of the Collateral and exclude therefrom the Mortgagor and all
others claiming under the Mortgagor, and thereafter to hold, store, use,
operate, manage, maintain and control, make repairs, replacements, alterations,
additions and improvements to and exercise all rights and powers of the
Mortgagor in respect to the Collateral or any part thereof. If the Mortgagee
demands or attempts to take possession of the Collateral in the exercise of any
rights under any of the instruments which secure the Note, the Mortgagor
promises and agrees promptly to turn over and deliver complete possession
thereof to the Mortgagee; (2) without notice to or demand upon the Mortgagor,
to make such payments and do such acts as the Mortgagee may deem necessary to
protect its security interest in the Collateral, including, without limitation,
paying, purchasing, contesting or compromising any encumbrance, charge or lien
which is prior to or superior to the security interest granted hereunder, and
in exercising any such powers or authority to pay all expenses incurred in
connection therewith; (3) to require the Mortgagor to assemble the Collateral
or any portion thereof, at a place designated by the Mortgagee and
reasonably convenient to both parties, and promptly to deliver such Collateral
to the Mortgagee, or an agent or representative designated by it. The
Mortgagee, and its agents and representatives shall have the right to enter
upon any or all of the Mortgagor's premises and property to exercise the
Mortgagee's rights hereunder; (4) to sell, lease or otherwise dispose of the
Collateral at public or private sale or auction sale, with or without having
the Collateral at the place of sale,
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and upon such terms and in such manner as the Mortgagee may determine.
The Mortgagee may be a purchaser at any such sale, and unless the Collateral is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, the Mortgagee shall give the Mortgagor
at least 5 days prior written notice of the time and place of any public sale
of the Collateral or other intended disposition thereof. Such notice may be
mailed to the Mortgagor at the address hereinafter set forth for notices; (5)
to sell the Mortgaged Property including the Collateral at one sale, in
connection with any foreclosure or any other sale all of which shall be deemed
to be commercially reasonable. Notices given in connection with foreclosure
shall constitute reasonable notice hereunder. The taking of possession of the
Collateral shall not prevent concurrent or later proceedings for the
foreclosure and sale of other portions of the Mortgaged Property as provided
elsewhere herein.
(i) pursue such other remedies as the Mortgagee may have under
applicable law.
Mortgagee shall not be compelled to release, or be prevented from
foreclosing or enforcing, this Mortgage upon all or any part of the Mortgaged
Property unless the Indebtedness shall be paid in full as aforesaid, and shall
not be required to accept any part or parts of the said Mortgaged Property, as
distinguished from the whole thereof, as payment of or upon the Indebtedness to
the extent of the value of such part or parts, and shall not be compelled to
accept or allow any apportionment of the said debt to or among any separate
parts of the Mortgaged Property. In the case of a foreclosure sale, the
Mortgaged Property (including all real and personal property), at Mortgagee's
election, may be sold in one parcel.
No recovery of any judgment by the 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 the Mortgagee hereunder, but such liens, rights, powers
and remedies of the Mortgagee shall continue unimpaired as before.
Section 3.3. Intentionally Omitted
Section 3.4. Interest After Default. Except with respect to Permitted
Set-Offs as defined in Section 4.7 hereof, if any payment due hereunder or
under the Note is not paid when due, either at stated or accelerated maturity
or pursuant to any of the terms hereof, then and in such event, the Mortgagor
shall pay
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interest thereon from and after the date on which such payment first
becomes due at the Default Rate as set forth in Section 1.10 hereof and such
interest shall be due and payable, on demand, at such rate until the entire
amount due is paid to the Mortgagee, whether or not any action shall have been
taken or proceeding commenced to recover the same or to foreclose this
Mortgage. Nothing in this Section 3.4 or in any other provision of this
Mortgage shall constitute an extension of the time of payment of the
Indebtedness.
Section 3.5. Mortgagor's Actions After Default. After the happening of
any Event of Default and immediately upon the commencement of any action, suit
or other legal proceedings by the Mortgagee to obtain judgment for the
Indebtedness or any part thereof, or of any other nature in and of the
enforcement of the Note or of this Mortgage, the Mortgagor will (a) waive the
issuance and service of process and enter its voluntary appearance in such
action, suit or proceeding, and (b) if required by the Mortgagee, consent to
the appointment of a receiver or receivers of the Mortgaged Property and of all
the earnings, revenues, rents, issues, profits and income thereof.
Section 3.6. Control by Mortgagee After Default. Notwithstanding the
appointment of any receiver, liquidator or trustee of the Mortgagor, or of any
of its property, or of the Mortgaged Property or any part thereof, the
Mortgagee shall be entitled to retain possession and control of all property
now and hereafter covered by this Mortgage.
ARTICLE IV
Miscellaneous
Section 4.1. Mortgage Extension. The lien hereof shall remain in full
force and effect and no consent or any subsequent encumbrancer shall be
required in the event of any postponement or extension of the time of payment
of the Indebtedness, or of any part thereof, or any amendment or modification
of the terms of this Mortgage, the Note, or any collateral security instrument,
or any additional notes taken by Mortgagee.
Section 4.2. Notices. All notices to any party hereto shall be given by
personal delivery or delivered by registered or certified mail, return receipt
requested, or by nationally recognized overnight carrier, with postage or
carrier charges prepaid and addressed to each party at the address herein set
forth or such other address of which any party may give the other notice in
writing in the manner provided in this Section 4.2 and such delivery shall be
deemed given upon receipt or refusal to accept, or upon return to sender due to
impossibility of
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delivery. Notwithstanding the address for the Mortgagor herein, notice or
demand delivered to the address of one or more of the persons, corporations or
other entities which shall at the time hold the record title to the premises
secured by this Mortgage, shall constitute notice or demand delivered to the
Mortgagor as may be required by any provision of this Mortgage. For purposes
of this Mortgage, the addresses of the Mortgagor and the Mortgagee are as
follows:
Mortgagor: _____________________________
_____________________________
_____________________________
Attention: _________________
Mortgagee: _____________________________
_____________________________
_____________________________
Attention: _________________
Section 4.3. Binding Obligations. The provisions and covenants of this
Mortgage shall run with the land, shall be binding upon the Mortgagor and shall
inure to the benefit of the Mortgagee, subsequent holders of this Mortgage and
their respective successors and assigns. For the purpose of this Mortgage, the
term "Mortgagor" shall mean the Mortgagor named herein, any subsequent owner of
the Mortgaged Property, and their respective heirs, executors, legal
representatives, successors and assigns.
Section 4.4. Captions. The captions of the Sections of this Mortgage are
for the purpose of convenience only and are not intended to be a part of this
Mortgage and shall not be deemed to modify, explain, enlarge or restrict any of
the provisions hereof.
Section 4.5. Further Assurances. The Mortgagor shall do, execute,
acknowledge and deliver to the Mortgagee, at the sole cost and expense of the
Mortgagor, all and every such further acts, deeds, conveyances, mortgages,
assignments, estoppel certificates, notices of assignment, surveys,
supplementary mortgages, financing statements, other chattel instruments,
transfers and assurances as the Mortgagee may reasonably require from time to
time in order to better assure, convey, secure, assign, transfer and confirm
unto the Mortgagee, the rights now or hereafter intended to be granted to the
Mortgagee under this Mortgage, any other instrument executed in connection with
this Mortgage or any other instrument under which the Mortgagor may be or may
hereafter become bound to convey, mortgage or assign to the Mortgagee for
carrying out the intention or facilitating the performance of the terms of this
Mortgage. The Mortgagor hereby
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irrevocably appoints the Mortgagee its attorney-in-fact, coupled with an
interest, to execute, acknowledge and deliver for and in the name of the
Mortgagor any and all of the instruments mentioned in this Section 4.5.
Section 4.6. Severability. Any provision of this Mortgage which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
Section 4.7. The Mortgagor's Obligations Survive. Except with respect to
setoffs to which Mortgagor shall be entitled with respect to amounts owed to
Mortgagor pursuant to indemnification provisions contained in (I) that certain
Purchase and Sale Agreement dated May ___, 1998 between Mortgagor and Mortgagee
relating to the Mortgaged Property and (II) that certain Asset Purchase
Agreement (the "Asset Agreement") dated May ___, 1998 between Mortgagor, Apex
Acquisition Corporation, Apex Machine Tool Company, Inc., Mortgagee and
Xxxxxxx Xxxxxx (collectively the "Permitted Set-Offs") (the Agreements set
forth in (I) and (II) above, collectively the "Purchase Agreements"), all sums
payable by the Mortgagor hereunder shall be paid without notice, demand,
counterclaim, setoff, deduction or defense (except as expressly provided
herein) and without abatement, suspension, deferment, diminution or reduction,
and the obligations and liabilities of the Mortgagor hereunder shall in no way
be released, discharged, or otherwise affected (except as expressly provided
herein) by reason of: (a) any damage to or destruction of or any condemnation
or similar taking of the Mortgaged Property or any part thereof; (b) any
restriction or prevention of or interference with any use of the Mortgaged
Property or any part thereof; (c) any title defect or encumbrance or any
eviction from the Premises or the improvements thereon or any part thereof by
title paramount or otherwise; (d) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to the Mortgagee, or any action taken with respect to this Mortgage by
any trustee or receiver of the Mortgagee, or by any court, in any such
proceeding; (e) any claim which the Mortgagor has or might have against the
Mortgagee; (f) any default or failure on the part of the Mortgagee to perform
or comply with any of the terms hereof or of any other agreement with the
Mortgagor; or (g) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing, whether or not the Mortgagor shall have notice or
knowledge of any of the foregoing. Except as expressly provided herein, the
Mortgagor waives all rights now or hereafter conferred by statute or otherwise
to any abatement, suspension,
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deferment, diminution or reduction of any sum secured hereby and payable by
the Mortgagor.
Section 4.8. Additional Security. If the Mortgagee at any time holds
additional security for any of the obligations secured hereby, it may enforce
the sale thereof or otherwise realize upon the same, at its option, either
before or concurrently with or after a foreclosure or sale hereunder without
being deemed to have made an election thereby or of having accepted the
security provided hereby or the proceeds hereof or such additional security or
the proceeds thereof in full settlement of the Note.
Section 4.9. General Conditions.
(a) All covenants hereof shall be construed as affording to the
Mortgagee rights additional to and not exclusive of the rights conferred under
law.
(b) This Mortgage cannot be altered, amended, modified or discharged
orally and no executory agreement shall be effective to modify or discharge it
in whole or in part, unless it is in writing and signed by the party against
whom enforcement of the modification, alteration, amendment or discharge is
sought. Any amendment hereafter made by Mortgagor and Mortgagee relating to
this Mortgage shall be superior to the rights of the holder of any intervening
lien or encumbrance.
(c) With respect to Mortgagor's obligations hereunder, time and
punctuality shall be of the essence with respect to this instrument. No delay
or failure of Mortgagee to enforce any of the provisions herein contained shall
waive or affect any of Mortgagee's rights hereunder.
(d) No remedy herein conferred upon or reserved to the Mortgagee is
intended to be exclusive of any other remedy or remedies, and each and every
such remedy shall be cumulative, and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute.
Any failure by Mortgagee to insist upon the strict performance by Mortgagor of
any of the terms and provisions hereof shall not be deemed to be a waiver of
any of the terms and provisions hereof, and Mortgagee, notwithstanding any such
failure, shall have the right thereafter to insist upon the strict performance
by Mortgagor of any and all of the terms and provisions hereof to be performed
by Mortgagor. Neither Mortgagor nor any other person now or hereafter
obligated for the payment of the whole or any part of the Indebtedness shall be
relieved of such obligation by reason of the failure of Mortgagee to comply
with any request of Mortgagor or of any other person so obligated to take
action to
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foreclose this Mortgage or otherwise enforce any of the provisions of
this Mortgage or of any obligation secured by this Mortgage, or by reason of
the release, regardless of consideration of the whole or any part of the
security held for the Indebtedness. Acceptance of any payment after the
occurrence of an Event of Default shall not be deemed to waive or cure such
Event of Default; and every power and remedy given by this Mortgage to the
Mortgagee may be exercised from time to time as often as may be deemed
expedient by the Mortgagee. Nothing in this Mortgage or in the Note shall
affect the obligation of the Mortgagor to pay the Indebtedness in the manner
and at the time and place therein respectively expressed.
(e) No waiver by the Mortgagee will be effective unless it is in writing
and then only to the extent specifically stated. Without limiting the
generality of the foregoing, any payment made by the Mortgagee for insurance
premiums, taxes, assessments, water rates, sewer rentals or any other charges
affecting the Mortgaged Property, shall not constitute a waiver of the
Mortgagor's default in making such payments and shall not obligate the
Mortgagee to make any further payments.
(f) The Mortgagee shall have the right to appear in and defend any action
or proceeding, in the name and on behalf of the Mortgagor which the Mortgagee,
in its reasonable discretion, feels may adversely affect the lien created
hereby on the Mortgaged Property.
(g) In the event of the passage after the date of this Mortgage of any law
of any governmental authority having jurisdiction, deducting from the value of
land for the purpose of taxation, affecting any lien thereon or changing in any
way the laws of taxation of mortgages or debts secured by mortgages for
federal, state or local purposes, or the manner of the collection of any such
taxes, so as to adversely affect this Mortgage, the Mortgagor shall promptly
pay to the Mortgagee, on demand, all taxes, costs and charges for which the
Mortgagee is or may be liable as a result thereof, provided said payment shall
not be prohibited by law or render the Note usurious, in which event the
Mortgagee may declare the Indebtedness to be immediately due and payable, and
provided further that the Mortgagor shall have no obligation to pay any
franchise, income or other tax upon the interest on the Note, or upon the
Mortgagee, unless such tax is, in whole or in part, in lieu of or in
substitution for property taxes upon the Mortgaged Property.
(h) The Mortgagor acknowledges that it has received a true copy of this
Mortgage.
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(i) Whenever used herein, the singular number shall include the plural;
the plural, the singular, and the use of any gender shall include all genders,
as the context may require.
Section 4.10. Legal Construction. The Note, this Mortgage and the other
Loan Documents shall be governed, construed and enforced in accordance with the
laws of the State of Connecticut. Nothing in this Mortgage, the Note or in any
other agreement between the Mortgagor and the Mortgagee shall require the
Mortgagor to pay, or the Mortgagee to accept, interest in an amount which would
subject the Mortgagee to any penalty under applicable law. In the event that
the payment of any interest due hereunder or under the Note or any such other
agreement would subject the Mortgagee to any penalty under applicable law, then
ipso facto the obligations of the Mortgagor to make such payment shall be
reduced to the highest rate authorized under applicable law.
Section 4.11. Merger. So long as any indebtedness secured by this
Mortgage shall remain unpaid, fee title to and any other estate in the
Mortgaged Property shall not merge, but shall be kept separate and distinct,
notwithstanding the union of such estates in any person or entity.
Section 4.12. Rights of Third Parties. All conditions of the obligations
of the Mortgagee hereunder are imposed solely and exclusively for the benefit
of the Mortgagee, its successors and assigns, and no other person shall have
standing to require satisfaction of such conditions in accordance with their
terms, and no other person shall, under any circumstances, be deemed to be a
beneficiary of such conditions, any and all of which may be freely waived in
whole or in part by the Mortgagee at any time if, in its sole discretion, it
deems it desirable to do so.
Section 4.13. No Agency. The Mortgagee is not the agent or
representative of the Mortgagor, and the Mortgagor is not the agent or
representative of the Mortgagee, and nothing in this Agreement shall be
construed to make the Mortgagee liable to anyone for goods delivered or
services performed upon the Premises or for debts or claims accruing against
the Mortgagor. Nothing herein shall be construed to create a relationship ex
contractu or ex delicto between the Mortgagee and any person supplying labor or
materials to the Premises.
Section 4.14. No Partnership or Joint Venture. Nothing herein nor the
acts of the parties hereto shall be construed to create a partnership or joint
venture between the Mortgagor and the Mortgagee. The relationship of the
Mortgagor and the Mortgagee is "debtor" and "creditor".
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Section 4.15. Intentionally Omitted.
Section 4.16. Permitted Contests. So long as a default or an Event of
Default is not existing under this Mortgage, the Note or the other Loan
Documents (any circumstance which would be a default hereunder except for the
contest thereof by Mortgager as permitted pursuant to this Section 4.16 shall
not be a default hereunder so long as such contest is maintained by Mortgagor
as permitted hereby), the Mortgagor may contest by appropriate legal
proceedings, diligently conducted in good faith, the validity or applicability
of any law, the requirements of any governmental authority or the amount of
Impositions due, provided (a) the Mortgagor gives the Mortgagee 30 days prior
written notice of its intent to contest hereunder, (b) such contest will not
expose the Mortgagee to any civil or criminal liability for failure to comply
with law or the requirements of governmental authorities, (c) such contest will
not result, regardless of the outcome of such contest, in a forfeiture of title
to all or any portion of the Mortgaged Property, or divestiture of the lien or
interest in favor of the Mortgagee in all or any portion of the Mortgaged
Property, and (d) the Mortgagor furnishes the Mortgagee security satisfactory
to the Mortgagee against loss, injury or costs resulting from such contest,
including losses, injuries and costs resulting from delays in compliance with
law or requirements of Governmental Authorities or in paying Impositions.
Section 4.17. Successors and Assigns. Whenever in this Mortgage one of
the parties hereto is named or referred to, unless otherwise specified, the
legal representatives, successors, successors-in-title and assigns, to the
extent permitted hereunder, of such parties shall be included, and all
covenants and agreements contained in this Mortgage by or on behalf of the
Mortgagor or by or on behalf of the Mortgagee shall bind and inure to the
benefit of their respective legal representatives, successors,
successors-in-title and assigns, whether so expressed or not.
Section 4.18. WAIVER OF NOTICE, HEARING AND BOND BEFORE PREJUDGMENT
REMEDY. MORTGAGOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS MORTGAGE IS
A PART IS A COMMERCIAL TRANSACTION AND NOT A CONSUMER TRANSACTION AND WAIVES
ANY RIGHT TO (1) NOTICE AND PRIOR HEARING ON THE RIGHT OF MORTGAGEE, OR ITS
SUCCESSORS OR ASSIGNS, TO OBTAIN A PREJUDGMENT REMEDY UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, REV. 1958, AS AMENDED, OR AS THE SAME MAY BE
AMENDED; (2) NOTICE AND PRIOR HEARING OR OTHER PROCESS ALLOWED UNDER ANY STATE
OR FEDERAL CONSTITUTION, STATUTE OR OTHER LAW, NOW OR HEREAFTER AFFECTING
PREJUDGMENT REMEDIES AND (3) ANY REQUIREMENT THAT MORTGAGEE POST A BOND IN
ORDER TO OBTAIN ANY PREJUDGMENT REMEDY.
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Section 4.19. OTHER WAIVERS. MORTGAGOR FURTHER WAIVES DILIGENCE, DEMAND,
PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF PROTEST,
AND NOTICE OF ANY RENEWALS OR EXTENSIONS OF THE NOTE OR ANY OTHER LOAN
DOCUMENT; ALL RIGHTS TO THE BENEFITS OF ANY MORATORIUM, APPRAISEMENT, EXEMPTION
AND HOMESTEAD NOW PROVIDED OR WHICH MAY HEREAFTER BE PROVIDED BY ANY FEDERAL OR
STATE STATUTE, INCLUDING BUT NOT LIMITED TO EXEMPTIONS PROVIDED BY OR ALLOWED
UNDER THE BANKRUPTCY REFORM ACT OF 1978, AS THE SAME MAY BE AMENDED, BOTH AS TO
ITSELF PERSONALLY AND AS TO ALL OF ITS PROPERTY, WHETHER REAL OR PERSONAL,
AGAINST THE ENFORCEMENT AND COLLECTION OF THE OBLIGATIONS EVIDENCED BY THE
NOTE, THIS MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS AND ANY AND ALL
EXTENSIONS, RENEWALS AND MODIFICATIONS THEREOF; AND THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THE NOTE,
THIS MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS.
Section 4.20. WAIVERS BARGAINED FOR AND KNOWINGLY AND VOLUNTARILY GIVEN.
MORTGAGOR ACKNOWLEDGES AND AGREES THAT THE WAIVERS CONTAINED IN THIS ASSIGNMENT
AND IN ALL OF THE OTHER LOAN DOCUMENTS HAVE BEEN SPECIFICALLY REQUESTED BY
MORTGAGEE AND HAVE BEEN GRANTED BY MORTGAGOR TO INDUCE MORTGAGEE TO PROVIDE
CREDIT TO MORTGAGOR UNDER THE TERMS OF THE NOTE AND THAT SUCH WAIVERS HAVE BEEN
KNOWINGLY AND VOLUNTARILY GIVEN ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS
OF SUCH WAIVERS WITH ITS ATTORNEY.
Section 4.21. CONSENT TO JURISDICTION. MORTGAGOR AND MORTGAGEE HEREBY
AGREE THAT ANY CLAIMS OR DISPUTES WITH RESPECT TO PERMITTED SET-OFFS SHALL BE
RESOLVED PURSUANT TO THE ARBITRATION PROVISIONS OF THE ASSET AGREEMENT, AS
DEFINED IN SECTION 4.7 HEREOF. WITH RESPECT TO ANY CLAIMS OR DISPUTES BETWEEN
MORTGAGOR AND MORTGAGEE PERTAINING DIRECTLY OR INDIRECTLY TO THIS MORTGAGE, THE
NOTE OR TO ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM WHICH ARE NOT OF A NATURE REQUIRED TO BE SUBMITTED TO ARBITRATION
UNDER THE ASSET AGREEMENT, MORTGAGOR AND MORTGAGEE HEREBY AGREE THAT ANY STATE
COURT OR LOCAL COURT OF THE STATE OF CONNECTICUT AND THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF CONNECTICUT SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY SUCH CLAIMS OR DISPUTES. IN SUCH EVENT, MORTGAGOR EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY SUCH ACTION OR
PROCEEDING COMMENCED IN SUCH COURTS, HEREBY WAIVING ANY OBJECTIONS IT MAY HAVE
AS TO VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDINGS BROUGHT IN SUCH COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM AND HEREBY WAIVING PERSONAL SERVICE OF
THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND
AGREEING THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
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ADDRESSED TO MORTGAGOR AT 0000 XXX XXXXXXX XXXXXX, XXXXXXXXXX, XXXXXXXXXXX
00000. IN ADDITION TO THE FOREGOING, MORTGAGOR IRREVOCABLY DESIGNATES AND
APPOINTS [INSERT NAME OF A CONNECTICUT RESIDENT OR ENTITY] AS ITS AGENT TO
RECEIVE ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY
SUCH COURT IN THE STATE OF CONNECTICUT AND DIRECTS SUCH AGENT TO ACCEPT SUCH
SERVICE ON ITS BEHALF. NOTHING HEREIN CONTAINED SHALL AFFECT THE RIGHT TO
SECURE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. THE EXCLUSIVE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT
OF ANY JUDGMENT OBTAINED IN SUCH FORUM, OR THE TAKING OF ANY ACTION UNDER THE
NOTE, THIS MORTGAGE OR UNDER ANY OF THE OTHER LOAN DOCUMENTS TO ENFORCE SAME,
IN ANY APPROPRIATE JURISDICTION.
THE CONDITION OF THIS DEED IS SUCH THAT, WHEREAS, Mortgagor is justly
indebted to Mortgagee in the aggregate principal amount of _______________
DOLLARS ($___________) and has executed and delivered to Mortgagee the Note for
such amount, payable to the order of Mortgagee, for value received, with
interest and in the manner as provided in the Note, a copy of which is attached
hereto as Schedule B and made a part hereof;
NOW THEREFORE, if the Note and any extensions, renewals or modifications
thereof shall be well and fully paid according to their tenor, and if all
covenants, conditions, agreements and provisions contained in the Note, any
extensions, renewals or modifications thereof, and this Mortgage are fully kept
and performed, then this Mortgage shall become null and void; otherwise to
remain in full force and effect.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage Deed,
Assignment of Leases and Security Agreement to be duly executed this ______ day
of ____________, 1998.
Signed, Sealed and Delivered
In the Presence of: EDAC TECHNOLOGIES CORPORATION
By:
---------------------------- --------------------------------
Name: Name:
Title:
Hereunto Duly Authorized
----------------------------
Name:
STATE OF CONNECTICUT :
: SS. ____________, 1998
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COUNTY OF HARTFORD ::
Personally appeared ____________________, ______________ of EDAC
TECHNOLOGIES CORPORATION, a Wisconsin corporation, signer and sealer of the
foregoing instrument and acknowledged the same to be his/her free act and deed
as such Officer and the free act and deed of that corporation, before me.
---------------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires
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SCHEDULE A
Description of Premises
69
SCHEDULE B
Note
70
EXHIBIT D
ASSIGNMENT OF LEASES AND RENTALS
This ASSIGNMENT OF LEASES AND RENTALS (hereinafter referred to as the
"Assignment") is made this ________ day of _________________, 1998, by EDAC
TECHNOLOGIES CORPORATION, a Wisconsin corporation with a place of business at
0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to
as "Borrower") to XXXXXX X. XXXXXX, an individual residing at
_______________________________, and XXXXX X. XXXXXX, an individual residing at
______________________________________ (collectively, the "Lender").
WHEREAS, Borrower is the owner of certain real property and improvements
thereon located in the Town of Farmington, County of Hartford, and State of
Connecticut, more particularly described in Exhibit A attached hereto (which
real property and improvements are hereinafter referred to as the "Premises");
and
WHEREAS Lender is the holder of a certain Mortgage Deed, Assignment of
Leases and Security Agreement (hereinafter referred to as the "Mortgage") of
even date herewith, executed and delivered by Borrower and intended to be
recorded in the land records of the Town of Farmington, Connecticut, which
Mortgage secures the debt evidenced by a certain Promissory Note of even date
herewith made by Borrower to Lender in the principal sum of $__________________
(hereinafter referred to as the "Note"); and
WHEREAS Lender has required that Borrower execute and deliver this
Assignment, as further security for the Note and the obligations secured by the
Mortgage.
NOW, THEREFORE, in consideration of the foregoing and the sum of One
Dollar ($1.00) and other valuable considerations paid to Borrower by Lender,
receipt and sufficiency of which are hereby acknowledged, Borrower agrees as
follows:
1. Assignment. Borrower hereby transfers, assigns, and sets over unto
Lender all present leases of space in the Premises as identified in Exhibit B
attached hereto and, whether or not so identified, any and all leases,
subleases, rentals or occupancy agreements, oral or written, and all of the
right, title and interest of Borrower in and to any and all guaranties
made in connection with such leases, subleases, rentals or occupancy
agreements, and whether made in contravention of this assignment or not, for
the use and occupancy of any part or all of the Premises, whether such leases
are now in existence or may exist
71
at any time or times in the future during the term of this Assignment, and
any renewals or extensions thereof, whether or not recorded (all of which
present and future leases, subleases, rentals, occupancy agreements, and
guaranties, whether or not identified in Exhibit B, are made subject to this
Assignment and are hereinafter referred to by and included within the terms
"Lease" or "Leases", together with all of the right, title, and interest of
Borrower in and to all rents, income, issues, proceeds, and profits from the
Leases and from the Premises intending hereby to assign to Lender all of the
interest of Borrower in the leases, and all rents, income, issues, proceeds,
and profits arising therefrom and from the Premises, including any security
deposits held pursuant to the terms of the Leases, cancellation fees or
charges, all sums of money payable by a tenant under any Lease on account of a
termination or default by the tenant, sums payable on account of leases in any
bankruptcy or insolvency proceedings involving the tenants thereunder, and all
sums whatsoever to be paid by any tenant to Borrower (all items of payment by a
tenant referred to in this paragraph of whatever nature, collectively, "Tenant
Payments")
2. Obligations Secured. This Assignment is given as security for (a)
payment of the principal indebtedness evidenced by the Note, with interest
thereon; (b) payment of all other sums, with interest thereon, payable under
the provisions of the Note, the Mortgage or this Assignment (collectively, the
"Loan Documents"); and (c) the performance and observance by Borrower of all of
the covenants, representations, and agreements contained in the Note, the Loan
Documents, and any and all Leases.
3. Representations by Borrower. Borrower represents that, as to each of
the existing Leases (a) Borrower has good right and authority to assign such
Lease to Lender and the execution of this assignment by the Borrower has been
duly authorized by all requisite partnership action; and (b) Borrower has
neither done, nor omitted to do, any act which might prevent or limit Lender
from exercising its rights under this assignment.
4. Borrower's Covenants.
(a) Borrower shall not, without Lender's prior written consent in each
instance, which consent shall not be unreasonably withheld (i) accept any
payment of rent in advance for more than each current month, or (ii) enter
into, materially modify, terminate or accept the surrender of any Lease, or
(iii) waive or release the tenant under any Lease from the performance or
observance of any material obligation or condition of such Lease, or (iv)
exercise any option arising on any casualty or
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condemnation available to Landlord under any Lease, unless required under
such Lease; or (v) give any consent sought by any tenant under any Lease.
Lender agrees that its consent to any proposed leases shall not be unreasonably
withheld.
(b) Borrower shall not, unless in each instance Lender's written consent
be first obtained, which consent shall not be unreasonably withheld (i) assign
or pledge, or contract (expressly or by implication) to assign or pledge, any
Lease, or the right to xxx for, collect and receive any rents, additional rents
or other sums in any of said Leases provided to be paid to Borrower thereunder,
or the right to receive, hold and apply any bonds and security in any of said
Leases provided to be furnished to the landlord thereunder, or the right to
enforce any of the agreements, terms, covenants or conditions of said Leases or
to give notice thereunder; (ii) subordinate any of said Leases to any mortgage
(other than the Mortgage), deed of trust, or other encumbrance or permit,
consent or agree to such subordination, or (iii) convey or transfer or suffer
or permit a conveyance or transfer of the premises demised thereby or of any
interest therein so as to effect a merger of the estates and rights of, or a
termination or diminution of the obligations of, any tenants under any of the
Leases.
(c) Borrower shall, at its own cost and expense, unless and until Lender
takes possession and control of the Premises; (i) promptly and fully perform
each and every material covenant, condition, promise, and obligation on the
part of the landlord to be performed under and pursuant to the terms of each
Lease, and shall not suffer or permit there to exist any default in such
performance on the part of such landlord or permit any event to occur which
would give the tenant under any such Lease the right to terminate the same or
claim any deduction or offset against rent, (ii) appear in and defend any
action growing out of, or in any manner connected with, any such Leases or
the obligations or liabilities of Borrower as landlord or of the tenant or
guarantor thereunder; (iii) enforce, short of termination unless Lender
otherwise consents, the performance and observance of each and every material
covenant and condition of the Leases to be performed or observed by the tenants
thereunder; and (iv) at the reasonable request of Lender exercise any option
available to the Borrower as landlord under said Leases arising on any casualty
or condemnation.
(d) Borrower shall furnish to Lender, within five (5) days after the
receipt thereof, or the mailing or service thereof by Borrower, as the case may
be, a copy of each notice of default which Borrower shall give to or receive
from any tenant of the Premises or of any part or parts thereof based upon the
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occurrence, or alleged occurrence, of any default or defaults in the
performance of any covenant, condition, promise or obligation provided for in
any Lease.
(e) Borrower shall, upon reasonable request from Lender, furnish Lender
within five (5) business days of such request with true and complete copies of
all Leases then in effect.
5. Future Leases.
(a) Borrower shall furnish to Lender a true and complete copy of each
Lease, or renewal or extension of Lease, hereafter made by Borrower with
respect to space in the Premises, within five (5) business days after delivery
of each such Lease, or renewal or extension of Lease, by the parties thereto.
(b) Borrower will from time to time, upon reasonable demand of Lender,
confirm in writing the assignment to Lender of any or all Leases hereafter made
affecting the Premises or any part or parts thereof, and such written
confirmation shall be in such form as Lender shall reasonably require and as
necessary to make the same recordable, and shall contain the representations
required pursuant to Section 3 of this Assignment.
(c) All agreements and obligations to pay commissions or fees in
connection with the leasing of any portion of the Premises shall be subject and
subordinate to the Mortgage and this Assignment and shall not be enforceable
against Lender or any purchaser at a foreclosure sale under the Mortgage, or
their respective successors.
6. Collection of Rents. Notwithstanding the present assignment effected
hereby and only so long as there is no default (other than those which may have
arisen due to a Permitted Set-Off, as defined in the Mortgage) by Borrower
which is continuing beyond applicable grace and cure periods in any payment or
obligation secured hereby, Borrower may receive, collect, and enjoy the rents
(but not in advance except for each current month), income, issues proceeds,
and profits payable to Borrower in the ordinary course from the Premises or
from the Leases, or both, or either, but as a trust fund for payment of all
amounts due under the Note and the Loan Documents, including, but not limited
to principal and interest, taxes, assessments, insurance premiums, maintenance,
operating and utility charges relating to the Premises before using the same
for any other purpose. Following any default hereunder which continues beyond
any applicable grace and cure periods, Borrower shall (i) deliver all security
deposits received by tenants under the Leases to
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Lender, which security deposits Lender shall hold under the terms of the
Leases, (ii) not interfere with Lender's collection of the rents due under the
Leases, and (iii) apply all rents received by Borrower to the debt secured
hereby.
7. Events of Default. As used herein, the term "Event of Default" shall
include the following:
(a) any default in the performance of any obligation required to be
performed or observed by Borrower hereunder or any breach or violation of any
covenant under this Assignment, which default, breach, or violation continues
for more than fifteen (15) days after written notice thereof from Lender to
Borrower; or
(b) any Event of Default as defined in the Mortgage.
8. Remedies. (a) If an Event of Default occurs, Lender may, at its option,
with written notice thereof to Borrower, and without regard to the adequacy of
security for the indebtedness secured hereby, with or without bringing any
action or proceeding, either in person or by an agent or by a receiver to be
appointed by a court, enter upon, take possession of, manage, repair and
operate the Premises or any part thereof, and otherwise exercise ail rights
of the landlord under the Leases; make, cancel, enforce or modify Leases,
obtain and evict tenants, fix or modify rents, and do any acts which Lender
deems proper to protect the security hereof, and either with or without taking
possession of said property, in its own name xxx for or otherwise collect and
receive all rents, income, issues, proceeds, and profits, including those past
due and unpaid, and apply the same, less costs and expenses of operation and
collection (including without limitation attorneys' fees), upon any
indebtedness secured hereby or by the mortgage, in such order or priority as
Lender may elect. Lender may exercise its rights under this Section 8 as often
as any Event of Default may occur. Immediately upon Lender's request after the
occurrence of an Event of Default, Borrower shall turn over to Lender all
security deposits required under any of the Leases, which shall be held and
applied by Lender in accordance with the provisions of the Leases governing
such security deposits.
(b) Any default by Borrower under this Assignment or any breach or
violation of any representation or covenant under this Assignment which shall
continue for more than fifteen (15) days after notice thereof from Lender to
Borrower shall at the option of Lender constitute an Event of Default under the
Mortgage, as if the provisions of this assignment were fully set forth in the
Mortgage, entitling Lender to all rights and
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remedies contained in the Mortgage; provided, however, that if (i) the
curing of such default cannot be accomplished with due diligence within said
fifteen (15) day period, and (ii) Borrower commences to cure such default
promptly after receipt of notice thereof from Lender and thereafter diligently
and continuously prosecutes the cure of such default, and (iii) the extension
of the period for effecting a cure will not result in any material impairment
of the Premises or any portion thereof, the value thereof or Lender's lien
thereon, then such period of fifteen (15) days shall be extended for such
period of time as is reasonably necessary for Borrower so acting to cure such
default but in no event for more than an additional thirty (30) days; provided
further, however, such extended cure period shall not be applicable to any
default which may be cured by the payment of money.
9. Payment of Rent to Lender. A written demand on any tenant by Lender
(with written copy to Borrower detailing the Event of Default) for payment of
rent to Lender shall be sufficient warrant to said tenant to pay rent, income,
issues, proceeds, and profit to Lender without necessity for consent by
Borrower or any obligation of said tenant to inquire as to the evidence of a
default by Borrower, notwithstanding any claim by the Borrower to the contrary,
and Borrower hereby irrevocably authorizes, directs and requires all tenants of
the Premises to honor this Assignment and comply with any such demand by
Lender, until further written notice by Lender authorizing the tenant to resume
rent payments to Borrower. Borrower shall have no claim against any tenant for
any amounts paid to Lender hereunder. Borrower shall not interfere in any way
with Lender's collection of the rents pursuant to this Assignment. This
Section 9 shall not however, relieve Lender of any liability it may have in
connection with any improper notice delivered by Lender to any tenant of
Borrower.
10. Lender not Liable. Nothing contained herein or in the Mortgage shall
be construed, expressly or by implication, to obligate Lender, prior to the
time when Lender acquires title to the Premises, to perform any of the
covenants of Borrower as landlord under any of the Leases hereinabove assigned
or to pay any sum of money or damages therein provided to be paid by Borrower,
each and all of which covenants and payments Borrower agrees to perform and
pay.
Lender shall not be liable for any loss sustained by Borrower resulting
from Lender's failure to let the Premises after an Event of Default or from any
other act or omission of Lender in managing the Premises after an Event of
Default unless such loss is caused by the gross negligence, willful misconduct
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or bad faith of Lender. Borrower hereby agrees to indemnify and save Lender
harmless against and from any liability or expense incurred by Lender hereunder
or under any of the Leases, provided such liability or expense is not the
result of Lender's gross negligence, willful misconduct, bad faith, breach of
this Agreement or Lender's own action prior to the date hereof acting as
landlord under the lease with Goldstar, Inc., and Borrower agrees to reimburse
Lender for any such expenses including attorney's fees, on demand, with
interest at the Default Rate, as defined in the Note.
11. Right to Protect Security. If Borrower fails to make any payment or
to do any act as herein provided beyond any applicable grace or cure period,
then the Lender, but without obligation so to do and without notice to or
demand on Borrower, and without releasing Borrower from any obligation hereof,
may make or do the same in such manner and to such extent as the Lender may
deem necessary to protect the security hereof, including specifically, without
limiting its general powers, the right to appear in and defend any action or
proceeding purporting to affect the security hereof or the rights or powers of
the Lender, and also the right to perform and discharge each and every
obligations, covenant and agreement of the Landlord in the Leases contained;
and in exercising any such powers to pay necessary costs and expenses, employ
counsel and incur and pay reasonable attorney's fees. Borrower shall pay
immediately upon demand all sums expended by the Lender under the authority
hereof, together with interest thereon at the Default Rate, as defined in the
Note, and the same shall be added to the said indebtedness and shall be secured
hereby and by the Mortgage.
12. No Waiver. No waiver by Lender of any breach by Borrower of any
covenant or condition contained herein, nor any failure by Lender to exercise
any right or remedy in respect of any breach hereunder, shall constitute a
waiver or relinquishment for the future of any such covenant or condition or of
any subsequent breach of any such covenant or condition, or bar any right or
remedy of Lender in respect of any such subsequent breach. If Lender shall
from time to time suffer or permit Borrower to xxx for, collect or receive any
rent, additional rent or other sums in said Leases provided to be paid to the
Borrower thereunder, or to receive, hold or apply any bonds or security
thereunder, or to enforce any of the agreements, terms, covenants or conditions
thereunder or to give notices thereunder, neither such sufferance nor
permission shall constitute a waiver or relinquishment by Lender of its rights
hereunder, which rights are hereby assigned to Lender, with respect to any
subsequent rent, additional rent or any other sums payable to Borrower under
said Leases or with respect to any subsequent receipt, holding or
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application of bonds or security or any subsequent enforcement of such
agreements, terms, covenants or conditions or any subsequent notice.
Any action of Lender hereunder shall not constitute a waiver of or be
deemed to cure any default by Borrower hereunder or under the Note or Mortgage,
and shall not affect or prejudice any other rights or remedies of Lender, which
other rights or remedies may be exercised by Lender prior to, concurrently with
or subsequent to action hereunder; and any action by Lender under the Note or
the Mortgage or any other instrument, or the release of any party liable
thereunder, or any extension or indulgence with respect thereto, shall not
affect or prejudice Lender's rights hereunder.
13. Assignment by Lender; Foreclosure. Lender may assign Lender's
interest in the Leases hereby assigned to any subsequent holder of the Mortgage
or to any party who acquires title to the Premises in foreclosure. After a
foreclosure of the Mortgage, neither Lender nor any assignee of the landlord's
interest in said Leases shall be liable to account to Borrower for any rents or
income thereafter collected.
14. Termination. This Assignment shall continue in full force and effect
until full payment of all amounts secured hereby, as evidenced by the recording
of a full release of the Mortgage.
15. Notification of Assignment. Lender shall be entitled to notify any
tenant of the existence of this Assignment at any time, even in the absence of
any default by Borrower.
16. Notices. All notices to any party hereto shall be given by personal
delivery or delivered by registered or certified mail, return receipt
requested, or by nationally recognized overnight carrier, with postage or
carrier charges prepaid and addressed to each party at the address herein set
forth or such other address of which any party may give the other notice in
writing in the manner provided in this section and such delivery shall be
deemed given upon receipt or refusal to accept, or upon return to sender due to
impossibility of delivery. Notwithstanding the address for the Borrower herein,
notice or demand delivered to the address of one or more of the persons,
corporations or other entitles which shall at the time hold the record title to
the premises secured by the Mortgage, shall constitute notice or demand
delivered to the Borrower as may be required by any provision of this
Assignment. For purposes of this Assignment, the addresses of the Borrower and
the Lender are as follows:
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Borrower: _________________________________
_________________________________
_________________________________
_________________________________
Lender: _________________________________
_________________________________
_________________________________
_________________________________
17. Miscellaneous. The provisions hereof shall be construed in accordance
with the laws of the State of Connecticut. This Assignment shall bind
Borrower, its successors and assigns, and inure to the benefit of Lender, its
heirs, executors, administrators, successors and assigns. The covenants of
Borrower herein shall run with the land. The word "Borrower" as used herein
shall mean not only the original Borrower named in the first paragraph of this
instrument, but also all future owners of the Premises, and the word "Lender"
as used herein shall mean not only the original Lender named in the first
paragraph of this instrument, but also all future holders of this Assignment.
The words "Borrower" and "Lender", together with any pronoun or pronouns in
connection therewith (and the possessive form of any such pronoun or pronouns),
shall include the singular, plural, masculine, feminine and neuter, as the
context may require whenever used, the singular number shall include the
plural, the plural the singular, and the use of any gender shall include all
genders. This Assignment may not be changed orally, but only by an agreement
in writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
18. BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS ASSIGNMENT IS
A PART IS A COMMERCIAL TRANSACTION AND NOT A CONSUMER TRANSACTION AND WAIVES
ANY RIGHT TO (1) NOTICE AND PRIOR HEARING ON THE RIGHT OF LENDER, OR ITS
SUCCESSORS OR ASSIGNS, TO OBTAIN A PREJUDGMENT REMEDY UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, REV. 1958, AS AMENDED, OR AS THE SAME MAY BE
AMENDED; (2) NOTICE AND PRIOR HEARING OR OTHER PROCESS ALLOWED UNDER ANY STATE
OR FEDERAL CONSTITUTION, STATUTE OR OTHER LAW, NOW OR HEREAFTER AFFECTING
PREJUDGMENT REMEDIES AND (3) ANY REQUIREMENT THAT LENDER POST A BOND IN ORDER
TO OBTAIN ANY PREJUDGMENT REMEDY.
19. BORROWER FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT,
NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF PROTEST, AND NOTICE OF ANY RENEWALS
OR EXTENSIONS OF THE NOTE OR ANY OTHER LOAN DOCUMENT; ALL RIGHTS TO THE
BENEFITS OF ANY MORATORIUM, APPRAISEMENT, EXEMPTION AND HOMESTEAD NOW PROVIDED
OR WHICH MAY
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HEREAFTER BE PROVIDED BY ANY FEDERAL OR STATE STATUTE, INCLUDING BUT NOT
LIMITED TO EXEMPTIONS PROVIDED BY OR ALLOWED UNDER THE BANKRUPTCY REFORM ACT OF
1978, AS THE SAME MAY BE AMENDED, BOTH AS TO ITSELF PERSONALLY AND AS TO ALL OF
ITS PROPERTY, WHETHER REAL OR PERSONAL, AGAINST THE ENFORCEMENT AND COLLECTION
OF THE OBLIGATIONS EVIDENCED BY THE NOTE, THIS ASSIGNMENT OR ANY OF THE OTHER
LOAN DOCUMENTS AND ANY AND ALL EXTENSIONS, RENEWALS AND MODIFICATIONS THEREOF;
AND THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR IN TORT, AT LAW OR IN EQUITY, ARISING OUT
OF OR IN ANY WAY RELATED TO THE NOTE, THIS ASSIGNMENT OR ANY OF THE OTHER LOAN
DOCUMENTS.
20. BORROWER ACKNOWLEDGES AND AGREES THAT THE WAIVERS CONTAINED IN THIS
ASSIGNMENT AND IN ALL OF THE OTHER LOAN DOCUMENTS HAVE BEEN SPECIFICALLY
REQUESTED BY LENDER AND HAVE BEEN GRANTED BY BORROWER TO INDUCE LENDER TO
PROVIDE CREDIT TO BORROWER UNDER THE TERMS OF THIS ASSIGNMENT AND THAT SUCH
WAIVERS HAVE BEEN KNOWINGLY AND VOLUNTARILY GIVEN ONLY AFTER CONSIDERATION OF
THE RAMIFICATIONS OF SUCH WAIVERS WITH ITS ATTORNEY.
IN WITNESS WHEREOF, Borrower has caused this Assignment to be executed as
of the day and year first written above.
Signed, Sealed and Delivered
In the Presence of: EDAC TECHNOLOGIES CORPORATION
By:
-------------------------------- ---------------------------------
Name: Name:
Title:
Hereunto Duly Authorized
--------------------------------
Name:
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STATE OF CONNECTICUT :
ss ______________, 1998
COUNTY OF HARTFORD :
Personally appeared ___________________, ________________ of EDAC
TECHNOLOGIES CORPORATION, a Wisconsin corporation, signer and sealer of the
foregoing instrument and acknowledged the same to be his/her free act and deed
as such Officer and the free act and deed of that corporation, before me.
-----------------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires
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EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF LEASE
KNOW ALL MEN BY THESE PRESENTS:
THAT XXXXXX X. XXXXXX and XXXXX X. XXXXXX (collectively, the "Assignors")
hereby transfer, assign and set over unto EDAC TECHNOLOGIES CORPORATION, a
Wisconsin corporation ("Assignee") all of Assignor's right, title, interest and
obligation in, to and under that certain Lease and Option to Purchase dated May
22, 1991 between Assignors, as Lessor, and Lithographics, Inc.
("Lithographics"), as Tenant, amended by (a) First Amendment to Lease and
Option to Purchase dated Xxxxxx 00, 0000, (x) Second Amendment to Lease dated
March 17, 1995 and (c) Second Amendment to Lease and Option to Purchase dated
March ___, 1996 (such Lease and Option to Purchaser, as so amended, the
"Lease"). The Lease and all amendments and modifications thereto are attached
hereto and incorporated herein by reference as Exhibit A.
TO HAVE AND TO HOLD the Lease, together with any and all security
deposits, prepaid rents, rights and appurtenances thereto in anywise belonging
to Assignors unto Assignee, its successors and assigns FOREVER, and Assignors
do hereby bind themselves and successors and assigns to WARRANT AND FOREVER
DEFEND all and singular the Lease unto Assignee, its successors, and assigns,
against every person whomsoever lawfully claiming or to claim the same or any
part thereof by, through or under Assignors, but not otherwise.
Assignors certify that Lithographics has not paid rent more than one month
in advance and that Assignors are not in default under the Lease. Assignors
indemnify and hold Assignee harmless from and against any loss, cost, damage or
expense arising from claims made by Lithographics under the Lease hereby
assigned based upon events occurring prior to the Effective Date (hereinafter
defined) or for any inaccuracies contained herein.
Assignee, by its acceptance hereof, hereby (i) accepts said assignment;
(ii) assumes and agrees to keep, perform, fulfill, or cause to be performed and
fulfilled, all the terms, covenants, conditions, duties and obligations of
landlord contained in the Lease arising on and after the Effective Date
(hereinafter defined) and (iii) agrees to indemnify and hold Assignors
harmless from and against any loss, cost, damage or expenses arising from
claims made by Lithographics or any successor or assign under the Lease hereby
assigned based upon events occurring on or after the Effective Date
(hereinafter defined)
83
(including specifically, without limitation, the obligations of the landlord
under the Lease with respect to security deposits delivered to Assignee on the
date hereof, but not otherwise).
Notwithstanding the date of execution of this Assignment and Assumption of
Lease, it is the intention of Assignors and Assignee that this Assignment and
Assumption of Lease be effective as of __________ A.M., Farmington, Connecticut
time on _____________, 1998 (the "Effective Date").
This Assignment and Assumption of Lease may be executed in one or more
counterparts, each of which together shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, Assignors and Assignee have caused this Assignment and
Assumption of Lease to be duly executed as of this ______ day of
_______________, 1998.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF: ASSIGNORS:
---------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------
Name:
---------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Name:
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ASSIGNEE:
EDAC TECHNOLOGIES CORPORATION
By:
------------------------- ---------------------------------
Name: Name:
Title:
Hereunto Duly Authorized
-------------------------
Name:
STATE OF CONNECTICUT )
) SS. ____________ ___________, 1998
COUNTY OF HARTFORD )
Personally appeared, XXXXXX X. XXXXXX, signer and sealer of the foregoing
instrument and acknowledged the same to be his free act and deed, before me.
--------------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
----------------
STATE OF CONNECTICUT )
) SS. ____________ ___________, 1998
COUNTY OF HARTFORD )
Personally appeared, XXXXX X. XXXXXX, signer and sealer of the foregoing
instrument and acknowledged the same to be his free act and deed, before me.
--------------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
----------------
STATE OF CONNECTICUT )
) SS. ____________ ___________, 1998
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85
COUNTY OF HARTFORD )
Personally appeared, EDAC TECHNOLOGIES CORPORATION , a Wisconsin
corporation, signer and sealer of the foregoing instrument and acknowledged the
same to be his free act and deed, as such officer, and the free act and deed of
that corporation, before me.
-----------------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
-------------------
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EXHIBIT F
TENANT NOTIFICATION LETTER
____________, _____
Lithographics, Inc.
00 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Re: Sale of 00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx
Dear Tenant:
Please be advised that:
1. EDAC TECHNOLOGIES CORPORATION ("Purchaser") has purchased the captioned
property (the "Property") from XXXXXX X. XXXXXX and XXXXX X. XXXXXX
("Sellers").
[2. In connection with such purchase, Sellers have transferred your
security deposit in the amount of $___________ (the "Security Deposit") to
Purchaser. Purchaser specifically acknowledges the receipt of and sole
responsibillity for the return of the security deposit.] IF APPLICABLE.
[3. All rental and other payments that become due subsequent to the date
hereof should be payable to Purchaser and should be delivered to the following
address unless you are otherwise notified by Purchaser in writing:
_________________________________
_________________________________
_________________________________
SELLERS:
---------------------------------
Xxxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
87
PURCHASER:
EDAC TECHNOLOGIES CORPORATION
By:
------------------------------
Name:
Title:
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EXHIBIT G
PERMITTED ENCUMBRANCES
00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx
1. Any and all provisions of any ordinance, municipal regulation or public
or private law.
2. Real estate taxes to the Town of Farmington (subject, however, to
proration as provided in Section 3.6.1 of the Agreement.
3. Such state of facts as an accurate survey may reveal.
4. Forty foot building line and ten foot drainage right-of-way as shown on
map or plan entitled "MAP OF LAND TO BE CONVEYED TO THE NEW ENGLAND
AIRCRAFT PRODUCTS COMPANY SPRING LANE - FARMINGTON, CONN. Scale 1" = 50'
- June 1980 Certified Substantially Correct Xxxxxx X. Xxxxxx, X. X.
Xxxxxxxxx, Surveyors Xxxxx Surveying Associates, P.C."
5. Easements and rights-of-way as shown on map or plan entitled "Map of
FARMINGTON INDUSTRIAL PARK & LAND of WEST HARTFORD VILLAGE, INC., Et. Al.
Farmington & Plainville Connecticut Scale 1"=200' - September, 1962
Certified Substantially Correct Xxxxxx X. Xxxxxx X.X. Xxxxxxxxx Xx.
Surveyors Office of Xxxxxx Xxxxx & Assoc. - Eng'rs & Surveyors Revised
May, 1965 Revised June, 1966 Revised July, 1966" recorded in Farmington
Land Records.
6. Easement from West Hartford Village, Inc. to Hartford Electric Light
Company dated November 12, 1962, recorded November 14, 1962 in Farmington
Land Records in Volume 161 at Page 246.
7. Easement from F.I.P. Corporation, et al to Hartford Electric Light
Company dated November 20, 1963, recorded November 22, 1963 in Farmington
Land Records in Volume 166 at Page 280.
8. The following drainage and utility easements relating to Farmington
Industrial Park insofar as the same may specifically affect the
above-described premises:
(a) Grant of an Easement from Xxxxx X. Xxxxxx to The American
Telephone & Telegraph Co. dated August 31, 1904 and recorded in the
Farmington Land Records in Volume 86 at Page 37, and Right-of-Way
from Xxxxx X.
89
Xxxxxx to American Telephone and Telegraph Company dated September
5, 1904 and recorded in the Farmington Land Records in Volume 73 at
Page 568.
(b) Right-of-Way set forth in Warranty Deed from Xxxxxx X. Xxxxxx
to G. Xxxxx Xxxxx dated June 28, 1948 and recorded in the
Farmington Land Records in Volume 102 at Page 208.
(c) Grant of easement from Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx to
The Connecticut Power Company dated March 27, 1950 and recorded in
the Farmington Land Records in Volume 104 at Page 415.
(d) Grant of an easement from The Connecticut Spring Corporation to
the Town of Farmington dated January 26, 1960 and recorded in the
Farmington Land Records in Volume 147 at Page 144, of the right to
discharge storm water from Xxxxx Drive.
(e) Grant of an easement from The Connecticut Spring Corporation to
The Hartford Electric Light Company dated December 30, 1960 and
recorded in the Farmington Land Records in Volume 152 at Page 151.
(f) Grant of an easement from Xxxxxx Xxxxxx and Xxxxxxx X. Xxxxxx
to the Hartford Electric Light Company dated November 12, 1962 and
recorded in the Farmington Land Records in Volume 161 at Page 245.
(g) Grant of an easement from Xxxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxx
to The Hartford Electric Light Company dated November 12, 1962 and
recorded in the Farmington Land Records in Volume 161 at Page 247.
(h) Drainage easement set forth in Warranty Deed from Xxxxxxx X.
Xxxxxx and Xxxxxxx Xxxxxxx to the Town of Farmington dated October
30, 1962 and recorded in the Farmington Land Records in Volume 161
at Page 323.
(i) Drainage easement set forth in Warranty Deed from Xxxxxxx X.
Xxxxxx and Xxxxxx Xxxxxx to the Town of Farmington dated October
30, 1962 and recorded in the Farmington Land Records in Volume 161
at Page 325.
(j) Grant of an easement from West Hartford Village, Inc. to The
Connecticut Light & Power Company dated October 14, 1963, recorded
October 23, 1963 in Farmington Land Records in Volume 166 at Page
34.
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(k) Grant of an easement from F.I.P. Corporation and Xxxxxx Xxxxx,
Trustee to The Hartford Electric Light Company dated May 19, 1967
and recorded in the Farmington Land Records in Volume 183 at Page
562.
9. Notice of Lease by and between Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx as
Landlords, and Lithographics, Inc., as Tenant, dated March 17, 1995 and
recorded in Volume 496 at Page 952 of the Farmington Land Records.
10. Assignment of Lease from Lithographics, Inc. as Borrower and Xxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxx as Lessors to Bristol Savings Bank dated March
10, 1995 and recorded in Volume 496 at Page 957 of the Farmington Land
Records.
11. Lessor's Agreement by and between Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx as
Lessors, and Bristol Savings Bank (Bank), Small Business Association (SBA)
and Lithographics, Inc. (Borrower) dated March 17, 1995 and recorded in
Volume 504 at Page 124 of the Farmington Land Records.
12. Any Lease entered into by Sellers as provided in Section 9.12 of the
Agreement.
13. Any other caveats, easements, covenants and/or nonmonetary encumbrances
of record prior to the date of this Agreement provided the same do not
render title to the Property unmarketable. No matter shall be construed
as an encumbrance or defect in title so long as such matter is not
construed as such under the Standards of Title of the Connecticut Bar
Association whenever the standards shall be applicable.
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