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OPEN-END MORTGAGE DEED,
SECURITY AGREEMENT, COLLATERAL
ASSIGNMENT OF RENTS AND FINANCING STATEMENT
THIS OPEN-END MORTGAGE DEED, SECURITY AGREEMENT, COLLATERAL ASSIGNMENT OF
RENTS AND FINANCING STATEMENT (the "MORTGAGE") is made this 30th day of June,
1998 by EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation, with a
principal place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("BORROWER"), to FLEET NATIONAL BANK, a national banking association,
with a principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("LENDER").
IN CONSIDERATION OF THE MORTGAGE DEBT (hereinafter defined) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower does hereby give, grant, bargain, sell and confirm, with
MORTGAGE COVENANTS, unto Lender, Lender's successors and assigns forever, the
following property:
LAND: Those certain pieces or parcels of real property known as 1790, 1794
and ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, more particularly
described in Schedule A attached hereto and made a part hereof, and all
permits, approvals, rights, privileges and easements appurtenant thereto (the
"LAND").
IMPROVEMENTS: All the buildings, structures and improvements now or
hereafter placed on the Land (the "IMPROVEMENTS").
SERVICE EQUIPMENT: All fixtures, appliances, machinery and equipment now
or hereafter installed upon the Land or the Improvements, including, without
limitation, gas and electric fixtures, radiators, heaters, engines and
machinery, boilers, stoves, ranges, elevators, escalators, incinerators,
motors, dynamos, sinks, disposals, dishwashers, water closets, basins, medicine
chests, pipes, faucets and other plumbing and heating fixtures, ventilating
apparatus, dryers, washing machines, heating, ventilating and air-conditioning
equipment and units, paneling, refrigerating plants, refrigerators, whether
mechanical or otherwise, alarm, fire prevention and extinguishing apparatus,
shades, awnings, screens, blinds, rugs, carpeting, wall cabinets, furniture and
furnishings, trees, shrubbery and other plantings, and such other goods,
chattels and personal property as are now or hereafter attached to, or used or
furnished in connection with the letting or operation of, the Land and/or the
Improvements, or in connection with the activities conducted thereon, and all
proceeds, renewals or replacements thereof or additions thereto or articles of
substitution thereof (the "SERVICE EQUIPMENT").
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CONDEMNATION PROCEEDS: All awards or payments, including interest
thereon, which may be made with respect to the Land, the Improvements or the
Service Equipment as a result of the exercise of the right of eminent domain.
LEASES: All right, title and interest of Borrower in and to any and
all leases, tenancies or rights of use and occupancy, with amendments, if any,
and any extensions, renewals or guaranties of the tenants' obligations
thereunder, now or hereafter on or affecting the Land and/or the Improvements,
whether or not recorded, with all security therefor and all monies payable
thereunder, and all books and records which reflect payments made under such
leases (collectively, the "LEASES").
PROPERTY INCOME: All rents, income, profits, security deposits and
other benefits to which Borrower may now or hereafter be entitled from the Land
and/or Improvements, and/or the business operations conducted thereat or
therefrom (the "PROPERTY INCOME").
TAX REFUNDS: All rights of Borrower now or hereafter arising in and to
any refunds of Taxes (as defined herein), or other charges relating to the Land
and/or the Improvements, or the debt secured hereby.
TO HAVE AND TO HOLD the above granted and bargained premises, with the
privileges and appurtenances thereof (collectively referred to herein as the
"PROPERTY"), but subject to those encumbrances, if any, listed upon Schedule B
attached hereto (the "PERMITTED ENCUMBRANCES"), unto Lender, Lender's
successors and assigns forever, to Lender's and their own proper use and
behoof.
THE CONDITION OF THIS DEED IS SUCH THAT:
WHEREAS, Borrower is justly indebted to Lender pursuant to a certain term
note of even date herewith in the principal amount of $14,000,000.00 (the
"LOAN"), a copy of which note is attached hereto and made a part hereof as
SCHEDULE C (the "NOTE").
WHEREAS, This Mortgage is also subject to the following additional terms
and conditions:
ARTICLE
COVENANTS AND REPRESENTATIONS OF BORROWER
Borrower covenants and represents to Lender as follows:
PAYMENT AND PERFORMANCE. Borrower shall pay the Loan and all other
indebtedness secured hereby, in lawful money of the United States and pay and
perform all of its obligations under this Mortgage, the Note, the commitment
letter
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signed and accepted by Borrower in connection with the Loan (the "COMMITMENT
LETTER") and every other instrument now or hereafter securing, evidencing or
relating to the Loan (this Mortgage, the Note, the Commitment Letter and such
other instruments being collectively referred to herein as the "LOAN
DOCUMENTS") at the times and in the manner set forth in such Loan Documents.
All amounts due the Lender under any of the aforesaid instruments shall be
secured by the lien of this Mortgage and shall hereinafter be referred to as
the "MORTGAGE DEBT". If Borrower consists of more than one party, all of the
obligations, covenants and warranties of Borrower contained in this Mortgage
shall be the joint and several obligations of all the parties constituting
Borrower.
INSURANCE.
Borrower shall keep the Property insured against loss by fire, flood
and other hazards, casualties, contingencies and all other "extended coverage"
risks, including builder's risk, rent, business interruption, liability,
indemnity, earthquake, war risk and war damage insurance, if available, in such
amounts and with such deductibles and companies as Lender may reasonably
require. Borrower shall promptly pay when due the premiums on such insurance
policies. Each insurance policy shall contain, in a form reasonably acceptable
to Lender, a provision to the effect that the policy will not be canceled
without at least ten (10) days prior written notice to Lender, the standard
non-contributing mortgagee endorsement (entitling Lender to collect all
proceeds payable under such insurance), the standard waiver of subrogation
endorsement, and any other endorsement reasonably required by Lender. All
liability insurance carried on the Property must show Lender as an additional
insured. Borrower shall deliver copies of all existing policies (or such other
evidence of insurance reasonably acceptable to Lender) to Lender at Lender's
request and shall deliver copies of all additional and renewal policies (or
such other evidence of renewal reasonably acceptable to Lender), with current
premium bills therefor marked "Paid", to Lender at least thirty (30) days
before the expiration of the old policies.
After the happening of any casualty to the Property, Borrower shall
give prompt written notice thereof to Lender, all proceeds of insurance
maintained with respect to the Property (the "INSURANCE PROCEEDS") shall be
payable to Lender, and Lender is hereby authorized and empowered by Borrower to
make proof of loss on, and to collect, settle, adjust or compromise, any claims
for loss, damage or destruction under any policy or policies of insurance.
Provided, however, that so long as no Event of Default has then occurred, (a)
if such loss is for less than $250,000, Lender shall deliver such proceeds to
Borrower to repair and restore the Property, and (b) Lender will consult with
Borrower in connection with the settlement, adjustment or compromise of any
such claim, but such right of consultation shall not affect or diminish the
rights of Lender to make all determinations and decisions in respect of the
settlement, adjustment or compromise of any such claim. Borrower does hereby
indemnify Lender and hold Lender harmless against and from any and all claims
and liabilities asserted against Lender in connection with the collection,
adjustment or
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compromise of any insured loss. Each insurer is authorized and directed hereby
to make payment under such insurance policies, including return of unearned
premiums, directly to Lender instead of to Borrower and Lender jointly, and
Borrower appoints Lender, irrevocably, as Borrower's attorney-in-fact to
endorse any draft therefor. All such Insurance Proceeds received by Lender
shall be held by Lender and applied and disbursed in its sole discretion,
either to the principal balance of the Loan or to the repair and restoration of
the Property.
TAXES.
Borrower shall pay, before the same become delinquent, all taxes,
assessments, and governmental charges and impositions of any kind whatsoever
for which lien rights exist, which may now or hereafter be assessed or levied
upon any part of the Property, or in lieu of or in addition to a tax on the
Property (all such charges and payments collectively referred to herein as the
"TAXES"). If Borrower fails to pay any such Taxes as aforesaid, Lender may pay
same and the amount of such payments shall constitute Lender Advances pursuant
to SECTION hereof. Borrower shall deliver to Lender, at its request, receipts
for the payment of each item specified above, prior to the date the item will
become delinquent. Borrower shall promptly notify Lender of the delinquency in
the payment of any Taxes due. Notwithstanding the foregoing, Borrower may
contest in good faith, by appropriate proceedings, the payment of Taxes for
which Borrower has either paid such Taxes (or portion thereof) as may be
required as a condition to instituting such a proceeding, or established on its
books or by deposit of cash with Lender, at the option of Lender, a reserve for
the payment thereof in such amount as Lender may require, so long as such
contest: operates to prevent collection, stay any proceedings which may be
instituted to enforce payment of such item, and prevent a sale of the Property
to pay such item; is maintained and prosecuted with due diligence; and shall
not have been terminated or discontinued adversely to Borrower.
Upon the request of Lender, Borrower shall pay to Lender, together
with and in addition to the monthly installments of principal and interest
provided in the Loan Agreement, an amount (as estimated from time to time by
Lender in its sole discretion) equal to one-twelfth (1/12th) of the yearly
Taxes assessed against the Property and sufficient funds to pay the insurance
premiums required under SECTION when due. Borrower agrees that any funds
deposited with or paid to Lender pursuant to this SUBSECTION B. shall create
only an indebtedness, and not a trust or agency relationship, between Borrower
and Lender, which shall be liquidated to the extent of Lender's payments as
aforesaid. Unless otherwise required by law, no interest shall be payable on
such funds. If the tax escrow payments are not sufficient to pay the Taxes on
the date they become due and payable, Borrower shall pay to Lender the amount
necessary to make up the deficiency on or before said date. Upon, and any time
after, the occurrence of an Event of Default, Lender may, at its option, apply
the accumulated escrow balance remaining as a credit against the Mortgage Debt.
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CONDEMNATION. Borrower shall give Lender immediate notice of the
actual or (if known to Borrower) threatened commencement of any eminent domain
proceedings affecting any part of the Property, and shall deliver to Lender
copies of all papers served in connection therewith. Borrower hereby appoints
Lender as its attorney-in-fact, coupled with an interest, and authorizes Lender
to collect, receive, and retain, the proceeds of any such award or payment, to
give proper receipts therefor and, if an Event of Default has occurred, to
adjust, compromise and settle the claim therefor. Lender shall have the right
to intervene and participate in any eminent domain proceedings, and Borrower
shall consult with Lender in all matters pertaining to the adjustment,
compromise or settlement of such proceedings and shall not enter into any
agreement with respect to such matters without the prior written consent of
Lender, which shall not be unreasonably withheld. Borrower agrees to execute
and deliver upon request any other instruments deemed necessary by Lender to
confirm or assign to Lender all awards and other compensation to be made for
any taking of the Property. Lender may, in its sole discretion, retain and
apply any eminent domain award or payment toward payment of the Mortgage Debt
or pay same over wholly or in part to Borrower. If a part of the Property
shall have been taken in any eminent domain proceedings and the remaining part
of the Property shall have been sold in foreclosure of this Mortgage prior to
the receipt by Lender of the award or payment, Lender, to the extent permitted
by applicable law, shall have the right to receive the award or payment to the
extent of any deficiency found to be due upon such sale, with legal interest
thereon, and including reasonable counsel fees, costs and disbursements
incurred by Lender in connection with the collection of such award or payment.
COMPLIANCE WITH LAW, ETC.
Borrower presently does, and shall continue to, observe and comply
with all laws, regulations, zoning and subdivision ordinances, building codes,
rules, and orders affecting the Property or the business operations thereon;
the terms of each insurance policy applicable to the Property; and all
conditions and requirements necessary to preserve and maintain all rights,
licenses, permits, privileges, franchises and concessions which are applicable
to the Property or business activities conducted at or from the Property, or
which have been granted to or contracted for by Borrower or by any tenant under
the Leases. Upon receipt, Borrower shall promptly furnish to Lender copies of
all notices, orders, summonses, correspondence and other similar items
delivered to or served upon Borrower pertaining to any of the foregoing.
Upon receipt, Borrower shall promptly furnish to Lender, or its
designee, copies of all correspondence from the Connecticut Department of
Environmental Protection (the "DEP"), the Federal Environmental Protection
Agency (the "EPA"), the Occupational Safety and Health Administration, or any
similar entity (individually, a "REGULATORY AUTHORITY") to Borrower (other than
routine mass informational mailings) and, upon request, shall direct such
entity to send copies of all such correspondence directly to Lender. Borrower
shall furnish to Lender copies of all
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correspondence, permit applications, and property transfer related forms and
reports from Borrower to any Regulatory Authority, copies of all periodic
reports required by any environmental law or any permit, and copies of all
records, forms and documents which Borrower is required to produce or maintain
pursuant to any environmental law or any permit. If, as a result of a Spill
(as defined below) or a release of hazardous waste, Borrower may be legally
obligated to report to or notify any Regulatory Authority, Borrower shall
promptly notify Lender in writing that such obligation has been triggered.
Failure to comply with this requirement shall constitute an Event of Default
hereunder.
Lender may, at any time and from time to time, cause to be conducted
and completed by engineers, consultants and others selected by Lender, such
investigations, studies, sampling and testing of the condition of the Property
and the compliance by Borrower and all occupants of the Property with
applicable environmental laws as Lender, in its sole discretion, shall deem
reasonably appropriate. All such investigations, studies, sampling and testing
shall be at Borrower's expense, provided, however, that Borrower shall not be
required to bear such expense so long as there is no Event of Default
hereunder, and Lender has no cause to believe, in its reasonable judgment,
that there has been a Spill (as defined below) or threatened Spill at the
Property or that Borrower is in violation of any environmental law. Borrower
agrees to cooperate with Lender and all persons retained by Lender to conduct
such investigations and to provide them with access to the Property and the
books and records of Borrower.
Borrower shall indemnify Lender and hold Lender harmless from and
against all loss, liability, damage and expense, including attorneys' fees and
diminution in property value, suffered or incurred by Lender, whether as holder
of this Mortgage, as mortgagee in possession or as a successor in interest to
Borrower as owner of the Property by virtue of foreclosure or acceptance of a
deed in lieu of foreclosure under or on account of any remedial or other
environmental or health and safety related obligation imposed by laws such as
Chapter 446K of the Connecticut General Statutes Revision of 1958, as amended
(the "ACT") or related regulations, or any similar applicable federal laws or
regulations, including the assertion of any lien thereunder; with respect to
any release, discharge, spillage, uncontrolled loss, seepage or filtration of
oil or petroleum or chemical liquids or solid, liquid or gaseous products or
hazardous waste which, if contained or removed or mitigated by the State of
Connecticut, could give rise to a lien under Connecticut General Laws Section
22a-452a, as amended (a "SPILL") affecting the Property (whether or not the
same originates or emanates from the Property or any contiguous real estate)
including any loss of value of the Property as a result of such Spill; and with
respect to any other matter affecting the Property and governed by the
provisions of the Act, other environmental or health and safety laws, their
related regulations, or any similar applicable federal laws or regulations.
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In the event of any Spill or release affecting the Property, whether
or not the same originates or emanates from the Property or any contiguous real
estate, Borrower shall contain, remove or mitigate same in accordance with
applicable laws and regulations and any directives of the State of Connecticut.
If Borrower shall fail to remedy such Spill or otherwise comply with any of the
requirements of the Act or related regulations or any other environmental law
or regulation, Lender may at its election, but without the obligation to do so,
give such notices and/or cause such work to be performed at the Property and/or
take any and all other actions as Lender shall deem necessary or advisable in
order to remedy the Spill or cure such failure of compliance in order to
protect its security in interest in the Property, and any amounts paid as a
result thereof shall be reimbursed by Borrower upon demand by Lender, shall
bear interest at the "Default Rate" provided for in the Note, and shall be
secured by the lien of this Mortgage. Borrower shall provide Lender, its
agents and contractors access to the Property for such remedial work to occur.
Borrower hereby indemnifies and holds Lender harmless from all loss, expense
and liability arising out of such remedial activity.
MAINTENANCE AND REPAIR; INSPECTION
Borrower shall keep and maintain the Property in good condition,
working order and repair; not permit, commit or suffer any waste of the
Property; (i) not permit the Property or any part thereof to become vacant,
deserted or unguarded; (ii) repair, replace, rebuild or restore any part of the
Property which may be damaged or destroyed by any casualty or affected by
eminent domain, whether or not the proceeds of any insurance or eminent domain
proceedings are available therefor, provided, however, if Lender receives
Borrower's proceeds of insurance from any such loss or casualty, Borrower's
duty to repair and restore the Property will be contingent upon Lender's
turning over such proceeds to Borrower; (iii) complete and pay for when due any
construction undertaken on the Property; and (iv) make all other repairs and
replacements to the Property which Lender may reasonably require. All such
work shall be done promptly in good and workmanlike manner.
Lender and any person authorized by Lender shall have the right to
enter and inspect the Property at all reasonable times.
SALE, ENCUMBRANCE AND USE.
Borrower shall not, without Lender's prior written consent, which may
be withheld in Lender's sole discretion for any reason whatsoever, initiate or
allow any Transfer (as defined in subsection C. below) of title to all or any
part of the Property; voluntarily create or grant any liens, mortgages or
encumbrances against such title; initiate or allow any change in the nature of
the use and occupancy of the Property, including any such change which
materially increases the possibility of a Spill; or record any Declaration of
Common Interest Community.
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Borrower shall keep and maintain the Property free from the claim of
all persons supplying labor or materials in connection with the construction or
repair of any Improvements constituting a part of the Property. Borrower shall
furnish, at Lender's request, all waivers and releases of liens or claims upon
or with respect to the Property or any Service Equipment.
The term "Transfer" as used in this SECTION shall mean:
any sale, conveyance, transfer, gift or other disposition of
the Property or any interest therein, whether voluntary, involuntary, or by
operation of law, or Borrower's entry into any contract or option agreement to
accomplish same;
if Borrower is a corporation any change in the articles of
incorporation of the corporation.
any dissolution or liquidation of, or the filing of a suit to
dissolve or liquidate, a corporate or partnership Borrower;
a lease or leases of the Land, Improvements or Service
Equipment, wherein the proposed tenant or tenants do not intend to occupy the
Property but intend to sell, sublease or assign their interest to effectuate a
long-term lease or sale and leaseback for financing purposes;
any other act by which the economic benefit, entrepreneurial
risk or management responsibility with respect to the Property is shifted to
someone other than Borrower.
Borrower shall promptly notify Lender if any lien, attachment or
encumbrance is recorded against the Property without Borrower's consent and
will cause the lien to be canceled and discharged of record within thirty (30)
days after its recording.
Any attempted action contrary to the provisions of this SECTION
shall be void, but shall constitute an Event of Default hereunder. Borrower
agrees that if the ownership of the Property or any part thereof becomes vested
in a person or entity other than Borrower, Lender may, upon notice to Borrower,
deal in any way with such successor or successors in interest without in any
way impairing or discharging Borrower's liability hereunder, under the Note or
the Mortgage Debt.
LEASES. Borrower shall not take any action, the effect of which would
be to cause any Lease to cease to be in full force and effect, and will not,
except with the prior written consent of Lender, cancel or terminate any
Lease, or consent to any cancellation, termination or surrender thereof, or any
assignment thereof; amend, modify or subordinate any Lease; enter into any
new Lease; waive any default under or breach of any Lease; or consent to any
prepayment or discount of rent or advance
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rent under any Lease. Lender shall have the right to review and reasonably
refuse written consent to any of the above proposed actions of Borrower based
upon the substance of the proposed transaction, the creditworthiness of
Borrower or the tenant, and the financial condition of the Property.
PROPERTY INCOME. Borrower hereby assigns, transfers and grants a
security interest to Lender in and to the Property Income to secure the
Mortgage Debt. Borrower shall not otherwise assign, transfer or encumber the
Property Income in any manner. Borrower may, so long as no Event of Default
has occurred hereunder, collect and use the Property Income, as the same
becomes due and payable, but may not collect same more than thirty (30) days in
advance of the date the same becomes due. Upon the occurrence of an Event of
Default, the permission hereby given to Borrower to collect the Property Income
shall terminate. The foregoing provisions hereof shall constitute an absolute
and present assignment of the Property Income, subject, however, to the
conditional permission given to Borrower to collect and use such Property
Income as hereinabove provided. The existence or exercise of such right of
Borrower shall not operate to subordinate this assignment to any subsequent
assignment, in whole or in part, and any such subsequent assignment by Borrower
shall be subject to the rights of Lender hereunder.
REMOVALS, ALTERATIONS AND DEMOLITION. Improvement or Service
Equipment shall be removed, altered, demolished or erected without the prior
written consent of Lender. All such changes, additions and alterations shall
become part of the Property immediately upon installation. Any replacement
equipment shall constitute Service Equipment and be subject to the lien of this
Mortgage.
PROTECTION OF LIEN AND OTHER EXPENSES. Borrower shall pay,
indemnify, defend and hold Lender harmless from: all costs, disbursements,
expenses and reasonable counsel fees incurred by Lender in connection with
protecting or sustaining the lien of this Mortgage; any proceeding, action,
suit, hearing, motion or application in which Lender is a party by reason
hereof or in which, in Lender's opinion, it becomes necessary to defend and
uphold the terms or priority of this Mortgage; the preparation for enforcement
of the Loan Documents after the occurrence of an Event of Default and
negotiations with Borrower in connection with the existence or cure of such an
Event of Default; any proposed refinancing by Lender of the Mortgage Debt; the
transfer of the Property in lieu of foreclosure; the approval by Lender of
actions taken or proposed to be taken by Borrower or others, which approval is
required by the terms of this Mortgage or other Loan Documents; and all
damages, reasonable costs and expenses (including, without limitation,
attorney's fees) paid by or imposed upon Lender in connection with any bodily
injury, death or property damage occurring in or upon, or in the vicinity of,
the Property through any cause whatsoever or asserted against Lender on account
of any act performed or omitted to be performed hereunder (other than such acts
or omissions constituting the gross negligence of Lender) or on account of any
transaction arising out of or in any way connected with the Property, this
Mortgage or the Mortgage Debt.
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ESTOPPEL CERTIFICATES; INSTRUMENTS OF FURTHER ASSURANCE. Borrower
shall deliver to Lender within ten (10) days after any request a duly
acknowledged certificate setting forth the amount of principal and interest due
and payable on the Loan and whether any offsets or defenses exist with respect
to this Mortgage or the Mortgage Debt. Upon Lender's request, Borrower shall
use its best efforts and due diligence to obtain delivery of the duly
acknowledged certificate of any person having or acquiring an interest in or
encumbrance on all or any part of the Property setting forth the nature and
extent of the interest and stating that the interest is subordinate to this
Mortgage and whether any offsets or defenses exist with respect to this
Mortgage or the Mortgage Debt.
BOOKS, RECORDS AND ACCOUNTS. Borrower shall keep and maintain proper
and accurate books, records and accounts reflecting all items of income and
expense received or paid by Borrower or any other person in connection with the
Property and all business operations conducted at or from the Property. Lender
shall have the right at any time during normal business hours to examine and
copy any such books, records and accounts wherever located.
FINANCING STATEMENT AND SECURITY AGREEMENT.
This Mortgage constitutes a security agreement and is intended
to be effective as a financing statement pursuant to the Connecticut Uniform
Commercial Code. Borrower hereby grants to Lender a security interest in the
Service Equipment, Leases, Property Income and other personal property included
in the Property, and all replacements thereof, substitutions therefor,
additions thereto and proceeds thereof, as well as the personal property
described on SCHEDULE D attached hereto and made a part hereof (collectively,
the "PERSONAL PROPERTY") as security for the Mortgage Debt. Lender is the
secured party and Borrower is the debtor with respect to this financing
statement and the mailing addresses of the secured party and the debtor for the
purpose of this financing statement are set forth in SECTION hereof. Upon
request, Borrower shall execute and deliver to Lender any security agreement,
financing or continuation statement or other document Lender deems necessary to
protect or perfect its lien on the Service Equipment, and pay all filing fees
and other costs, disbursements, expenses and reasonable counsel fees incurred
by Lender in connection therewith. Borrower authorizes Lender, to the extent
permitted by applicable law, to sign and file any financing or continuation
statement at any time with respect to the Service Equipment in the absence of
any signature by or on behalf of Borrower.
Borrower hereby warrants, represents and covenants as follows:
except for the security interest granted hereby, and as permitted under a
certain Fifth Amended and Restated Loan Agreement dated February 20, 1995 by
and between Lender and Borrower, as amended and in effect from time to time,
Borrower is, and as to the portions of the Personal Property to be acquired
after the date hereof will be, the sole owner of the Personal Property free
from any lien, security interest, encumbrance
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or claim thereon of any kind whatsoever. Borrower will notify Lender of, and
will defend the Personal Property against, all claims and demands of all
persons at any time claiming the Personal Property or any interest therein;
Borrower will not assign, pledge, encumber, lease, sell, convey or in any
manner transfer the Personal Property or portions thereof without the prior
written consent of Lender, except as otherwise permitted under the Loan
Documents, and all of the Personal Property attached to, incorporated into or
to be incorporated into the Property will be kept free and clear of all chattel
mortgages, liens, conditional vendor's liens, encumbrances and security
interests, except as expressly waived in writing by Lender; the Personal
Property is not and will not be used or acquired for personal, family or
household purposes; the Personal Property will be kept on or at the Property,
and Borrower will not remove any portion or item of Personal Property affixed
or attached to the Property without the prior written consent of Lender, except
such portions or items of Personal Property which are consumed or worn out in
ordinary usage, and are promptly replaced by Borrower with new items of equal
or greater quality; and notwithstanding any release of any or all of the
Property which is deemed "real property", any proceedings to foreclose this
Mortgage or the release of this Mortgage of record, the terms hereof shall
survive as a security agreement with respect to the security interest created
hereby until the repayment or satisfaction in full of the Mortgage Debt.
REQUIRED NOTICES. Borrower shall notify Lender promptly of the
occurrence of any of the following: (i) an event requiring notice with
respect to the following matters under the following subsections of this
Mortgage:
1.2.C. (Loss or Damage to Property)
1.3.B. (Taxes)
1.4.A. (Condemnation)
1.5.B. (Compliance with Law)
1.7.D. (Recordation of Liens)
1.10. (Removal of Improvements and Service Equipment)
1.20B.&D. (Compliance of Construction with Law);
(ii) receipt of notice from any governmental authority relating to the
Property; (iii) receipt of any notice from the holder of any other lien or
security interest in the Property; or (iv) commencement of any judicial or
administrative proceedings by or against or otherwise affecting Borrower, the
Property or any entity controlled by or under common control of Borrower, or
any other action by any creditor thereof as a result of any default under the
terms of any loan.
OTHER DOCUMENTS. Borrower upon request shall deliver to Lender
copies or originals of all reports, licenses, permits, approvals, orders,
contracts, agreements, rights, options, franchises and applications relating to
or affecting the Property and all business operations conducted at or from the
Property.
12
GENERAL REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants that as of the date of this Mortgage:
Borrower is generally paying its debts as such debts become
due, the fair market value of its assets exceeds its liabilities and no
bankruptcy or insolvency proceedings are pending or contemplated by or against
Borrower.
All reports, statements and other data furnished by Borrower
to Lender in connection with the Loan are true, correct and complete in all
material respects and do not omit any fact or circumstance which would make the
statements contained therein misleading; present fairly the financial position
of Borrower as of the date stated therein, and the results of Borrower's
operation and changes in financial position for the years then ended and the
statements are prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and that no material adverse change
has occurred in the financial condition of Borrower or the Property since the
date of said financial statement.
The Property and all Improvements thereon have not suffered any
damage from fire or other casualty, no part of the Property has been condemned
or taken by eminent domain and no condemnation or other taking of the Property
or any part thereof is threatened or pending, or has been threatened with, any
other title proceedings.
To Borrower's best knowledge, there does not now exist on,
under or within the Property (or any contiguous land included in the legal
description of the Property within three years prior to the date hereof) any
Spill. To Borrower's best knowledge, there does not now exist any condition,
nor will the current or proposed operations cause there to exist any condition
upon the Property or said contiguous land which would materially increase the
possibility of the occurrence of a Spill, or a material violation of the Act
or any related regulations or any similar federal laws or regulations.
Borrower if a corporation, is a valid corporation in good
standing under the laws of the jurisdiction of incorporation and is authorized
to do business in the State of Connecticut, if a limited liability company, is
a valid limited liability company, legally existing under the laws of the
jurisdiction of its formation, and is authorized to do business in the State of
Connecticut, or if a limited partnership, is a valid limited partnership
legally existing under the laws of the jurisdiction of its formation and is
authorized to do business in the State of Connecticut.
Borrower has the legal capacity and is authorized to execute
and deliver all Loan Documents; the Loan Documents are valid and binding
obligations enforceable in accordance with their respective terms, and the
execution and delivery thereof do not contravene any contract or agreement to
which Borrower is a party or by
13
which Borrower or any of its respective properties may be bound, and do not
contravene any law, order, decree, rule or regulation to which Borrower is
subject.
Except as previously disclosed in writing to Lender, there is no
action, suit or proceeding pending, or, to the knowledge of Borrower, threatened
against or materially affecting Borrower or the Property or the business
operations conducted at or from the Property or which involve the possibility of
any judgment or liability not fully covered by insurance or which, in Borrower's
opinion, might result in any adverse change in the business, assets or
operations of Borrower which would, in any way, materially and adversely affect
the Property or the validity or enforceability of the Loan Documents. Borrower
is not a party to or bound by any contract, agreement or other instrument, or
subject to any charter or other restriction or any judgment, order, writ,
injunction, decree, rule or regulation which now or in the future may materially
and adversely affect the business, operations, properties, assets or condition,
financial or otherwise, of Borrower.
Borrower has filed all required federal, state and local tax
returns, and no claims have been asserted and/or unpaid with respect to such
taxes.
The Property has frontage on, and direct access for ingress and
egress to, the public street(s) appurtenant thereto.
Electric, gas, sewer, septic, water facilities and any other
necessary utilities are or will be, available in sufficient capacity to service
the Property satisfactorily, and any easements necessary to the furnishing of
such utility service by Borrower have been or will be obtained and duly
recorded.
Borrower is not in default under the terms of any instrument
evidencing or securing any indebtedness of Borrower and there has occurred no
event which would, if uncured or uncorrected, constitute a default under any
such instrument with the giving of notice, passage of time, or both.
Borrower (and the undersigned representative of Borrower, if
any) has full power and authority to subject the Property to this Mortgage and
to execute and deliver the Note, this Mortgage, the Loan Documents and all other
documents and instruments required of it by Lender. No consent of any person or
entity and no consent, approval, or authorization is required by Borrower in
connection with the foregoing.
PREJUDGMENT REMEDY WAIVER. Borrower hereby represents and
agrees that the transaction of which this Mortgage is a part is a commercial
transaction as defined by the statutes of the State of Connecticut. BORROWER
HEREBY WAIVES ALL RIGHTS TO NOTICE, JUDICIAL HEARING OR PRIOR COURT ORDER UNDER
CONNECTICUT GENERAL STATUTES
14
SECTION 52-278A ET SEQ., AS AMENDED, OR UNDER ANY OTHER STATE OR FEDERAL LAW
WITH RESPECT TO ANY AND ALL PREJUDGMENT REMEDIES LENDER MAY EMPLOY TO ENFORCE
ITS RIGHTS AND REMEDIES HEREUNDER. MORE SPECIFICALLY, BORROWER ACKNOWLEDGES
THAT LENDER'S ATTORNEY MAY, PURSUANT TO CONNECTICUT GENERAL STATUTES SECTION
52-278F, ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT SECURING A COURT ORDER.
BORROWER ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE AND A HEARING SUBSEQUENT
TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY BY LENDER'S ATTORNEY, AND
LENDER ACKNOWLEDGES BORROWER'S RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE
OF SAID WRIT. BORROWER FURTHER HEREBY WAIVES ANY REQUIREMENT OR OBLIGATION OF
LENDER TO POST A BOND OR OTHER SECURITY IN CONNECTION WITH ANY PREJUDGMENT
REMEDY OBTAINED BY LENDER BASED ON ANY OFFSETS, CLAIMS, DEFENSES OR
COUNTERCLAIMS OF BORROWER OR ANY OTHER OBLIGATED PARTY TO ANY ACTION BROUGHT BY
LENDER. BORROWER ALSO WAIVES ANY AND ALL OBJECTION WHICH IT MIGHT OTHERWISE
ASSERT, NOW OR IN THE FUTURE, TO THE EXERCISE OR USE BY LENDER OF ANY RIGHT OF
SETOFF, REPOSSESSION OR SELF HELP AS MAY PRESENTLY EXIST UNDER STATUTE OR COMMON
LAW, AND TO THE EXTENT PERMITTED BY LAW, THE BENEFITS OF ALL PRESENT AND FUTURE
VALUATION, APPRAISEMENT, HOMESTEAD, EXEMPTION, STAY, REDEMPTION AND MORATORIUM
LAWS. BORROWER ACKNOWLEDGES AND AGREES THAT ALL OF THE WAIVERS CONTAINED IN THIS
SECTION HAVE BEEN MADE KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY,
AND WITH THE ADVICE OF ITS COUNSEL.
WAIVER OF TERMINATION RIGHTS. Borrower hereby waives, for itself and
any of its assigns who assume this Mortgage, any right it or they may have under
Section 49-2(c)(7) of the Connecticut General Statutes, as amended, or
otherwise, to terminate the right of Lender to make "optional future advances"
as defined under said statute, including without limitation, Loan Advances made
by Lender pursuant to this Mortgage, the Loan Agreement and/or any other Loan
Documents.
ARTICLE ARTICLE
DEFAULT
EVENTS OF DEFAULT
Any one or more of the following shall constitute an "EVENT OF
DEFAULT" hereunder:
15
The failure to pay any portion of the Mortgage Debt in full by
the "Maturity Date" as defined in Schedule C hereto or the failure to pay any
other installment of principal and/or interest or any other sums due with
respect to the Mortgage Debt upon maturity when such installment is otherwise
due and payable.
The occurrence of an Event of Default (as defined therein) under,
or demand for the payment of, any Loan Documents beyond any grace periods set
forth in said agreements, if any.
The breach of any covenant or obligation of Borrower contained in
SECTIONS , , , , , or hereof.
The actual or threatened waste, removal or demolition of, or
material alteration to, any part of the Property without Lender's prior written
consent.
The failure to observe or perform any other agreements, covenants
or representations of Borrower contained in this Mortgage for a period of thirty
(30) days after the occurrence of such failure.
The occurrence of a default under, or demand for the payment of,
any other note or obligation secured by a mortgage on or security interest in
the Property.
The cancellation, revocation, suspension or failure to receive a
grant or renewal of any and all franchises, concessions, licenses and permits
pertaining to or necessary for the construction and operation of the
Improvements on the Property.
The taking of all or any part of the Property through
condemnation, or if the value of the Property shall be impaired by condemnation
or casualty, either temporarily for a period in excess of thirty (30) days, or
permanently.
If Borrower shall be deprived of title, possession or control of
the Property by process or operation of law or order of any court, or if any
foreclosure proceeding shall be instituted with regard to any lien or mortgage
of any kind affecting the Property.
ARTICLE
REMEDIES
Whenever an Event of Default shall have occurred, Lender may take any
one or more of the following remedial steps:
ACCELERATION. Lender may declare, without demand or notice to
Borrower, the outstanding principal amount of the Loan and the interest accrued
16
thereon, and the Mortgage Debt, to be due and payable immediately, and upon
such declaration such principal and interest and other sums shall immediately
become, and be, due and payable.
FORECLOSURE. Lender may foreclose this Mortgage and exercise its
rights as a secured party for all or any portion of the Mortgage Debt which is
then due and payable, subject to the continuing lien of this Mortgage for the
balance not then due and payable. If this Mortgage is foreclosed there shall be
included in the Mortgage Debt, to the extent permitted by law, the costs,
disbursements, and fees paid or incurred by Lender in connection with such
foreclosure.
POSSESSION OF PROPERTY; APPOINTMENT OF RECEIVER.
Without notice to Borrower, and without regard to the adequacy of
the security for the Mortgage Debt, proof of depreciation of the value of the
Property or the financial condition of Borrower, Lender may, at its option: by
itself or by agent, with or without bringing any action, suit or proceeding,
immediately enter upon and take possession and control of the Property and the
Property Income with those rights and powers more particularly set forth in
SUBSECTION 3.3 C. hereof; make application to a court of competent jurisdiction
for and obtain the immediate ex parte appointment of a receiver authorized to
immediately enter upon and take possession and control of the Property and the
Property Income with those rights and powers more particularly set forth in
SUBSECTION 3.3 C. hereof; without taking possession and control of the
Property, collect directly all Property Income due to Borrower with full rights
and powers to notify all parties liable to make payments of Property Income to
make said payments directly to Lender or its agents, and Lender or its agents
shall have the further power and authority to ▇▇▇ for or otherwise collect and
receive all Property Income; or (iv) exercise any or all of the remedies
available to a secured party under the Uniform Commercial Code, including,
without limitation:
Either personally or by means of a court appointed receiver,
taking possession of all or any of the Service Equipment or any other part of
the Property which is personal property (the "PERSONAL PROPERTY") and thereafter
holding, storing, using, operating, maintaining and controlling the Personal
Property, and exercising all rights and powers of Borrower in respect thereof.
If Lender demands or attempts to take possession of the Personal Property,
Borrower shall promptly to turn over and deliver complete possession thereof to
Lender;
Without notice to or demand upon Borrower, making such payments
and doing such acts as Lender may deem necessary to protect its security
interest in the Personal Property;
Requiring Borrower to assemble the Personal Property, or any
portion thereof, and make it available to Lender at a place designated by Lender
and reasonably convenient to both parties. Lender and its agents and
representatives
17
shall have the right to enter upon any or all of Borrower's property to
exercise Lender's rights hereunder; and
Selling, leasing or otherwise disposing of the Personal Property
at public sale, with or without having the Personal Property at the place of
sale, and upon such terms and in such manner as Lender may determine. Lender may
be a purchaser at any such sale. Borrower agrees that sales for cash or on
credit to a wholesaler, retailer, or user of property of the type of the
Personal Property, or at public or private auction, are all commercially
reasonable. Notwithstanding any other notice provision in this Mortgage or the
Loan Documents, unless the Personal Property is perishable or threatens to
decline speedily in value, or is of a type customarily sold on a recognized
market, Lender shall give Borrower reasonable notice of the time and place of
any public sale thereof, or of the time after which any private sale or any
other intended disposition thereof is to be made. The requirements of
reasonable notice shall be met if such notice is mailed to Borrower as provided
in SECTION 4.4 hereof, at least five (5) days before the time of the sale or
other disposition.
Borrower hereby waives to the fullest extent permitted by law all
rights to prior notice or court hearing in connection with any action by Lender
of the types set forth in SUBSECTIONS 3.3 A.(1), (2), and (3) above, and
Borrower further waives any requirement that Lender provide any bond, surety, or
other security in connection with any said action.
If Lender, Lender's agent and/or a receiver enters upon and takes
possession and control of the Property and/or the Property Income pursuant to
SUBSECTIONS 3.3 A.(1), (2) and/or (3), such person or entity shall have all of
Borrower's rights and powers with respect to the Property and/or the Property
Income in addition to such other rights and powers as may subsequently be
authorized including without limitation the right and power to: hold, store,
use, operate, manage and control the Property and conduct the business which is
or may be conducted therefrom; make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements to the
Property and purchase or otherwise acquire additional fixtures, personalty and
other property; obtain such insurance with respect to the Property and the
business operations conducted therefrom as may be determined necessary; manage
and operate the Property and the business conducted therefrom and exercise all
the rights and powers of Borrower in its name or otherwise with respect to the
same; enter into agreements with others to exercise the powers herein granted,
all as Lender, its agents or a receiver from time to time may determine; collect
and receive all Property Income; enforce all terms of existing Leases at the
Property and all other contracts or agreements pertaining to the Property or the
business operations conducted therefrom; and enter into such new or additional
leases and such other contracts or agreements pertaining to the Property or the
business operations conducted at or from the Property from time to time as
Lender, its agents or the receiver may determine necessary in its sole
discretion.
18
All Property Income collected by Lender, Lender's agent or a
receiver pursuant to SUBSECTIONS 3.3 A.(1), (2) or (3) above, shall be applied
to the following in such order of priority as Lender may determine in its sole
discretion: (i) interest and principal due on the Mortgage Debt; (ii) taxes,
assessments and insurance premiums due with respect to the Property and/or the
business operations conducted from the Property; (iii) all costs and expenses of
constructing the Improvements, operating, maintaining, repairing and improving
the Property and conducting the business operations which are or may be
conducted at the Property; and (iv) the compensation, salaries, expenses and
disbursements of any agents, employees, attorneys or other representatives of
Lender, Lender's agent or the receiver in connection with the possession,
control, construction of the Improvements and/or operation of the Property and
the business operations conducted therefrom, expressly including the payment of
any management agent's fees, and in the event Lender manages the Property itself
with its own employees, Lender shall be entitled to charge and collect a
management fee equal to the customary management agent's fee charged for
performing similar management functions in the area where the Property is
located.
Lender, its agents, or any receiver acting pursuant to
SUBSECTIONS 3.3 A.(1), (2) or (3) hereof shall in no event be liable or
accountable for more monies than actually are received from the Property during
the period during which Lender, its agent or any receiver actually is in
possession and control of the Property. Neither Lender, its agents nor any
receiver shall be liable or accountable in any manner for the failure to collect
Property Income for any reason whatsoever.
All costs, expenses and liabilities of every character incurred
by Lender in managing, operating and maintaining the Property, not paid from
Property Income as hereinabove provided, shall constitute and be treated as
Lender Advances pursuant to SECTION hereof.
Borrower shall pay monthly, in advance, to Lender, its agent or
any receiver in possession and control of the Property pursuant to SUBSECTIONS
3.3 A.(1), (2) or (3) above, the fair and reasonable rental value for all or any
part of the Property which is in the use, occupancy and possession of Borrower.
In the event of foreclosure, Lender, its agent or any receiver
acting pursuant to SUBSECTIONS 3.3 A.(1), (2) or (3) above, may remain in
possession of the Property until (i) the foreclosure sale; (ii) the redemption
of the Property; or (iii) the expiration of any redemption period of the United
States of America extending subsequent to the foreclosure sale, if a deficiency
exists. Lender, its agents or the receiver shall incur no liability for, nor
shall Borrower assert any claim or setoff as a result of, any action taken while
Lender, its agent or a receiver is in possession of the Property.
LENDER ADVANCES
19
Lender may, without notice or demand, pay any amount which
Borrower has failed to pay, or perform any act which Borrower has failed to
perform hereunder, including, without limitation, (i) the payment of insurance
premiums and/or the furnishing of insurance required under SECTION 1.2 hereof;
(ii) the payment of Taxes required under SECTION hereof; (iii) the performance
of and the payment for repairs and replacements required under SECTION . hereof;
(iv) the cost of discharging any liens or encumbrances under SUBSECTION 1.7.D.
hereof; (v) all expenses incurred or other amounts paid by Lender pursuant to
SECTION and and ARTICLE 3 hereof; (vi) the payment of costs attendant to
Lender's possession as set forth in SUBSECTION 3.3.F. hereof; and (vii) the
payment of sums for all purposes for which Loan Advances are otherwise allowed
under the Loan Agreement. The costs, disbursements, expenses and reasonable
counsel fees incurred by Lender in connection with the foregoing, together with
interest thereon from the date the expense is paid or incurred at the highest
interest rate allowed under the Note ("LENDER ADVANCES"), shall be (x) added to
the Mortgage Debt, (y) payable on demand to Lender, and (z) secured by the lien
of this Mortgage, prior to any right, title, interest, lien or claim attaching
or accruing to the Property subsequent to the lien hereof.
Lender, in making any Lender Advances which relate to Taxes
asserted against the Property, may do so according to any ▇▇▇▇, statement or
estimate procured from the appropriate public office without inquiry into the
accuracy or validity thereof; insurance premiums, may do so according to any
notice, ▇▇▇▇, statement or estimate procured from the appropriate insurer
without inquiry into the accuracy or validity thereof; any apparent or
threatened adverse title, lien or encumbrance, shall be the sole judge of the
legality or validity of same; the expense of repairs or replacement of any
Property, shall be the sole judge of the state of repairs and the necessity for
incurring the expense of any such repairs or replacement; any other purpose
referred to in SUBSECTION 3.4.A. above, may do so whenever, in its sole judgment
and discretion, such payment shall seem necessary or desirable to protect the
full security intended to be created by this Mortgage.
NO MARSHALLING. Lender shall not be compelled to release, or be
prevented from foreclosing or enforcing this Mortgage upon all or any part of
the Property, unless the entire Mortgage Debt shall be paid; required to accept
any part or parts of the Property, as distinguished from the entire whole
thereof, as payment of or upon the Mortgage Debt to the extent of the value of
such part or parts; compelled to accept or allow any apportionment of the
Mortgage Debt to or among any separate parts of the Property; or prevented from
selling the Property in one or more parcels or as an entirety, and in such
manner and order, as Lender in its sole discretion may elect.
LENDER'S DISCRETION. Lender, in exercising any remedy provided
herein under which it may make payments or perform actions which Borrower has
failed to do or make, may do so in its sole discretion whenever in its opinion
such payment or performance is necessary or desirable to protect the full
security intended by this Mortgage.
20
REMEDIES CUMULATIVE. No remedy herein conferred upon or reserved
to Lender is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Mortgage or now or hereafter existing at law
or in equity.
DELAY OR OMISSION NO WAIVER. No delay or omission on the part of
Lender to exercise any of its rights hereunder or under any of the Loan
Documents shall impair or operate as a waiver of Lender's right to exercise such
right or any other right of Lender hereunder or under the Loan Documents. In
order to entitle Lender to exercise any remedy reserved to it in this Mortgage,
it shall not be necessary to give any notice, other than such notice as may be
herein expressly required. Any waiver, express or implied, of any breach or
default hereunder shall not constitute a waiver of any subsequent or different
breach or default.
POWER OF ATTORNEY. Borrower hereby irrevocably appoints, grants
and constitutes Lender its attorney-in-fact, coupled with an interest, to so
execute, deliver and submit all applications, requests, forms or reports of any
kind for all applicable, desirable or necessary licenses, permits, approvals,
authorization, tax credits or abatements or benefits, of any kind relating,
applicable to or affecting the use and enjoyment of, or construction on, or the
business operations conducted at or from the Property; provided, the foregoing
power of attorney shall be exercisable by Lender only after the occurrence of
one or more Events of Default. Any party dealing with Lender shall not be
required to investigate the right of Lender to exercise its authority or to take
any action under or pursuant to this power of attorney nor inquire as to whether
or not any Event of Default exists or has occurred.
NO MERGER. If Lender shall acquire title to the Property by
conveyance from Borrower or as a result of the foreclosure of any other mortgage
which Lender at any time holds with respect to the Property, this Mortgage shall
not merge in the fee of the Property but shall remain and continue as an
existing and enforceable lien for the Mortgage Debt secured hereby until the
same shall be released of record by Lender in writing.
ARTICLE
MISCELLANEOUS PROVISIONS
FUTURE ADVANCES. This is an "Open-End Mortgage" securing a
commercial revolving loan and the holder hereof shall have all of the rights,
powers and protections to which the holder of any Open-End Mortgage is entitled
under Connecticut law. At no time shall the principal amount of the Mortgage
Debt exceed the full amount of the Loan authorized in the Loan Agreement, nor
shall the maturity of any future advance secured hereby extend beyond the date
the final principal payment is due on the Loan.
21
GOVERNING LAW; BINDING EFFECT. The rights and duties of Borrower
and Lender under this Mortgage shall be governed by the internal laws of the
State of Connecticut. All covenants, conditions and agreements herein shall run
with the land, and shall bind the heirs, executors, administrators, successors
and assigns of Borrower, and shall inure to the benefit of Lender and its
successors and assigns.
MODIFICATIONS, ETC. No provision of this Mortgage may be waived,
modified or discharged, including, without limitation, by conduct, custom or
course of dealing, other than by an express writing signed by the party against
whom enforcement of such waiver, modification or discharge is sought.
NOTICE. Any notice, report, demand or other written instrument
required under SECTION hereof, or otherwise permitted or required to be given,
made, or sent under this Mortgage, shall be in writing, signed by the party
giving or making the same, and shall be sent hand-delivered, effective upon
receipt, sent by United States Express Mail or by overnight courier, effective
upon receipt, or sent by certified mail, postage prepaid, return receipt
requested, deemed effective on the earlier of the day of actual delivery as
shown by the addressee's return receipt or the expiration of three (3) business
days after the date of mailing, addressed to the party intended to receive the
same at the address set forth below:
If to Lender: with a copy to:
Fleet National Bank Pepe & Hazard LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Borrower: with a copy to:
EDAC Technologies Corporation Reinhart, Boerner, Van Deuren,
▇▇▇▇▇▇ & Rieselbach, S.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Any party hereto shall have the right to change the place to which any such
notice shall be sent by a similar notice sent in like manner to all parties
hereto.
NO AGENCY OR JOINT VENTURE. Nothing contained in this mortgage
shall be construed to cause borrower to become the agent for, or a joint
venturer with, lender for any purpose whatsoever, nor shall lender be
22
responsible for any shortage, discrepancy, damage, loss or destruction of any
part of the property for whatever cause unless same is the direct result of the
gross negligence of lender. Whether or not lender elects to employ any or all
remedies available to it upon demand or after the occurrence of an event of
default under the loan documents, lender shall not be liable for the payment of
any expense incurred in connection with the exercise of any remedy available to
lender or for the performance or nonperformance of any other obligation of
borrower.
SEVERANCE. The invalidity or unenforceability of any one or more
phrases, sentences, clauses or sections contained in this mortgage shall not
affect the validity or enforceability of the remaining portions of this
mortgage, or any part thereof.
INTERPRETATION. In this mortgage, unless the context otherwise
requires, (i) the term "borrower" shall mean and include any guarantor of all
or any part of the mortgage debt or any other person directly or indirectly
responsible for the payment of all or any part of the mortgage debt; and (ii)
the use of any gender shall include the other genders and either the singular
or the plural shall include the other. This mortgage shall be interpreted
without regard to any presumption or other rule requiring construction against
the party which drafted this mortgage.
CAPITALIZED TERMS. Any capitalized words used in this mortgage and
not herein defined shall have the meanings ascribed to such terms in the loan
documents.
NOW, THEREFORE, if all agreements and provisions contained herein are
fully kept and performed by borrower, and all the mortgage debt shall be fully
paid in all respects, then this deed shall be void; otherwise to remain in full
force and effect.
IN WITNESS WHEREOF, borrower has caused this instrument to be executed and
delivered as of the date first above written.
Signed, sealed and delivered BORROWER:
in the presence of: EDAC TECHNOLOGIES CORPORATION
________________________________ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
________________________________
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ )
) ss.: ________
COUNTY OF HARTFORD )
On this 30th day of June, 1998, before me, the undersigned officer,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President of EDAC TECHNOLOGIES
CORPORATION, signer and sealer of the foregoing instrument and acknowledged the
same to be his free act and deed and the free act and deed of said corporation.
Commissioner of the Superior Court
Notary Public
My Commission Expires: __________
SCHEDULE C
Promissory Note
SCHEDULE D
Personal Property
A. All inventory, of every type and nature relating to the Property or the
operation thereof or used in connection therewith, wherever located, now owned
or hereafter acquired (and whether by way of substitution, return,
replacement or otherwise) by Borrower, all contract rights with respect
thereto, all documents representing said inventory, all proceeds thereof
(including insurance proceeds with respect thereto and inventory returned or
repossessed from sale, disposition or otherwise), all accessions to said
inventory and all products thereof. The term "inventory" includes all goods
held for sale or lease by Borrower or to be furnished under contract of
service, and all raw materials, goods in process, and all materials used or
consumed in Borrower's business; and all proceeds of the foregoing.
B. All receivables relating to the Property or the operation thereof which
now exist or which hereafter arise, or in which Borrower now has or may
hereafter acquire
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any rights, which term shall include all accounts, contract rights,
instruments, documents, chattel paper, general intangibles and all other forms
of obligations owing to Borrower, including, but not limited to, retainages,
security deposits and insurance proceeds, and all proceeds of all such
Receivables and all rights to any goods which are represented thereby.
C. All instruments, drafts, acceptances, documents, chattel paper,
contract rights, general intangibles, securities, deposit accounts,
certificates of deposit and notes, relating to the Property or the operation
thereof under which Borrower now has or in the future acquires any rights and
all proceeds of all of the foregoing.
D. All intangible property and rights relating to the Property or the
operation thereof, or used in connection therewith, including but not limited
to all names under or by which the Property or any present or future
Improvements on the Property may at any time be operated or known, and all
rights to carry on business under any such names, or any variant thereof, and
all trade names and trademarks, licenses and franchises relating in any way to
the Property, and good will in any way relating to the Property.
E. All causes of action, claims, compensation and recoveries for any
damage, condemnation or taking of the Property, or for any conveyance in lieu
thereof, whether direct or consequential, or for any damage or injury to the
Property, or for any loss or diminution in value of the Property.
F. All of the right, title and interest of Borrower in and to all refunds
and rebates of taxes and assessments of every kind and nature imposed upon the
Property.
G. All awards or payments, including interest thereon, which may be made
with respect to all or any portion of the above-described personal property,
fixtures or Property as a result of the exercise of the right of eminent
domain.
H. All reserves, deferred payments, deposits, refunds, cost savings and
payments of any kind relating to the construction of any Improvement on the
Property.
I. All plans and specifications prepared for, or governmental permits
issued with respect to, the construction of the Improvements on the Property
and all studies, data and drawings related thereto; and also all contracts and
agreements of Borrower relating to the aforesaid plans and specifications or to
the aforesaid studies, data and drawings or to the construction of the
Improvements on the Property.
J. All goods used or to be used in connection with the construction of the
Improvements at the Property, including, without limitation, structural steel,
building materials and supplies, equipment, tools and machinery, in which
Borrower now or hereafter acquires any rights, during all periods of time when
Borrower has acquired rights therein whether or not said goods are
incorporated into the buildings and the
25
Improvements on the Property and expressly including such periods of time
prior to the time when any said goods may be incorporated into any such
Improvements.
The foregoing collateral includes all additions, replacements and
substitutions thereof and thereto and all proceeds of all of the foregoing, as
these terms are used and defined in the Uniform Commercial Code.
