OPEN-END MORTGAGE DEED
TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
KNOW YE, that APEX MACHINE TOOL COMPANY, INC., a Connecticut corporation
("Borrower"), with its principal office at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxx 00000 for the consideration of One Dollar ($1.00) and other valuable
consideration received to the Borrower's full satisfaction of BANKNORTH, N.A., a
national bank having a mailing address at 000 Xxxx Xxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxxx 00000-0000 ("Lender"), does hereby give, grant, bargain, sell and
confirm, with MORTGAGE COVENANTS, unto the Lender, its successors and assigns
forever:
THE PROPERTY
(A) LAND: Those certain piece or parcels of real property known as 00
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx, Farmington, Connecticut, more particularly
described in Schedule A attached hereto and made a part hereof, and all rights,
privileges and easements appurtenant thereto (the "Land").
(B) IMPROVEMENTS: All the buildings, structures and improvements now or
hereafter placed on the Land (the "Improvements").
(C) SERVICE EQUIPMENT: All fixtures, appliances, machinery and equipment
now or hereafter installed, and such other goods and chattels and personal
property as are now or hereafter attached to, used, or furnished in connection
with the letting or operation of the Property (hereinafter defined) or in
connection with the activities conducted thereon, and all renewals or
replacements thereof or additions thereto or articles of substitution thereof
(the "Service Equipment").
(D) CONDEMNATION PROCEEDS: All awards or payments, including interest
thereon, which may be made with respect to the Property as a result of the
exercise of the right of eminent domain in accordance with, and subject to, the
terms and conditions of Section 1.4.
(E) LEASES: All right, title and interest of the Borrower in and to any
and all leases, tenancies or rights of use and occupancy, with amendments, if
any, and any extensions, renewals or guarantees of the tenants' obligations
thereunder, now or hereafter on or affecting the Property, whether or not
recorded, with all security therefor and all monies payable thereunder, and all
books and records which reflect payments made under the leases (hereinafter the
"Leases").
(F) PROPERTY INCOME: All rents, income, profits, security deposits and
other benefits to which the Borrower may now or hereafter be entitled from the
Property and/or
the business operations conducted at or from the Property (hereinafter the
"Property Income") in accordance with, and subject to, the terms and conditions
of Section 1.7.
TO HAVE AND TO HOLD the above granted and bargained premises, with the
privileges and appurtenances thereof (collectively referred to herein as the
"Property") unto it, the said Xxxxxx, its successors and assigns forever, to its
and their own proper use and behoof.
THE CONDITION OF THIS DEED IS SUCH THAT:
WHEREAS, the Lender and the Borrower and certain affiliates of Borrower,
have entered into a Credit Agreement (the "Credit Agreement") under which (i) a
certain Term Loan in the amount of $5,000,000 and evidenced by a certain Term
Note attached hereto and made a part hereof as Schedule B-1, (ii) a certain
Revolving Credit Loan in an amount not to exceed $5,000,000, constituting a
commercial revolving loan (and the Credit Agreement constituting a commercial
revolving loan agreement with respect to the Revolving Credit Loan) and
evidenced by a certain Revolving Credit Note attached hereto and made a part
hereof as Schedule B-2, and (iii) a certain Equipment Loan in the amount of up
to $1,500,000, initially in the form of a line of credit, constituting a
commercial revolving loan (and the Credit Agreement constituting a commercial
revolving loan agreement with respect to the Equipment Loan) and then converting
to a term loan and evidenced by a certain Equipment Note attached hereto and
made a part hereof as Schedule B-3 (the Term Note, the Revolving Credit Note and
the Equipment Note all dated the date of this Mortgage and hereinafter
collectively called the "Note"), pursuant to which the maximum aggregate amount
of the loans therein authorized (collectively the "Loan") outstanding at any one
time is $11,500,000. Pursuant to the Credit Agreement, a portion of the Loan
proceeds will be advanced on the Effective Date (as defined in the Credit
Agreement) and all or part of the remaining Loan proceeds are permitted to be
advanced from time to time (the "Loan Advances") and shall be secured by this
Mortgage. The initial Loan Advance made under the Credit Agreement this date is
$1.00. The initial Loan Advance and future Loan Advances, if any, may be either
evidenced by additional notes or recorded in an account on the books of the
Lender as specified in Sections 4.1 and 4.2 hereof. The Credit Agreement
provides for repayment of all or a portion of the outstanding balance of the
Loan proceeds, together with interest thereon, from time to time as provided in
Schedule C attached hereto and made a part hereof. This Mortgage is also subject
to the following additional terms and conditions:
1. COVENANTS AND REPRESENTATIONS OF THE BORROWER
The Borrower covenants, represents and warrants to the Lender as follows:
1.1 PAYMENT AND PERFORMANCE
The Borrower will pay the debt evidenced by the Loan and all other sums
due thereunder in lawful money of the United States and pay and perform all of
its obligations under the Credit Agreement, this Mortgage, and every other
instrument now or hereafter securing, evidencing or relating to the Loan
(collectively referred to herein as the "Loan Documents") at the times and in
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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 the Borrower
consists of one or more parties, all of the obligations, covenants and
warranties of the Borrower contained in this Mortgage shall be the joint and
several obligations of the parties constituting the "Borrower".
1.2 INSURANCE
A. The Borrower shall keep the Property insured against loss by
fire, flood and other hazards, casualties, liability, contingencies and all
other risks, including loss of income, in such amounts, with such companies, and
with such deductibles as the Lender may reasonably require. All insurance
carried on the Property must be assigned to the Lender and be payable to the
Lender under the standard non-contributing mortgagee endorsement and such other
endorsements as the Lender may require.
B. In the event of any loss or damage to the Property, the Borrower
shall give prompt notice thereof to the Lender. In case of loss and payment by
any insurance company, the amount of insurance proceeds received shall be
applied either in whole or in part upon the payment of the Mortgage Debt or to
rebuilding or restoring the Property, in accordance with the procedures
specified in the Credit Agreement.
1.3 TAXES
The Borrower shall pay within any applicable grace period and before
the same become delinquent, all taxes, assessments and governmental or other
charges and impositions of any kind whatsoever which may now or hereafter be
assessed or levied upon any part of the Property (all such charges and payments
collectively referred to herein as the "Taxes"). The Borrower shall promptly
notify the Lender of the delinquency in the payment of any Taxes.
1.4 CONDEMNATION
The Borrower will give the Lender prompt notice of any eminent
domain proceedings affecting any part of the Property. The Borrower hereby
appoints the Lender as its attorney-in-fact, coupled with an interest, and
authorizes the Lender to collect, receive, and retain, subject to the terms
hereof, 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. The Lender shall have the right to intervene and
participate in any eminent domain proceedings and the Borrower shall consult
with the 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 the Lender. The
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 the Borrower.
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1.5 COMPLIANCE WITH LAW, ETC.
A. The Borrower warrants that it presently does and covenants that
it will continue to observe and comply with (1) all laws, regulations,
ordinances, rules, and orders affecting the Property or the business operations
thereon; and (2) the terms of each insurance policy applicable to the Property.
If the Borrower receives notice that it is not in compliance with any such law
or condition, the Borrower will promptly provide the Lender with a copy of such
notice.
B. The Borrower shall indemnify the Lender and hold the Lender
harmless from and against all loss, liability, damage and expense, including
attorneys' fees, suffered or incurred by the Lender, whether as holder of this
Mortgage, as mortgagee in possession or as a successor in interest to the
Borrower as owner of the Property by virtue of foreclosure or acceptance of a
deed in lieu of foreclosure (i) under or on account of 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; (ii) with respect to any 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, would 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 (iii) with respect to any other
matter affecting the Property and governed by the provisions of the Act or
related regulations or any similar applicable federal laws or regulations.
C. In the event of any Spill affecting the Property, whether or not
the same originates or emanates from the Property or any contiguous real estate,
the Borrower shall contain, remove or mitigate same immediately and in
accordance with any directives of the State of Connecticut. If the 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,
the 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 the Lender shall deem necessary or advisable in order
to remedy the Spill or cure such failure of compliance, and any amounts paid as
a result thereof shall be reimbursed by the Borrower upon demand by the Lender,
shall bear interest at the "default rate" provided for in the Credit Agreement,
and shall be secured by the lien of this Mortgage.
D. The Borrower represents and warrants that except as otherwise
indicated in the Environmental Reports (as defined in the Credit Agreement),
there does not now exist (i) 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, and (ii) 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) a Spill,
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or (a) a material violation of the Act or any related regulations or any similar
federal laws or regulations.
1.6 MAINTENANCE AND REPAIR; INSPECTION
The Borrower will keep and maintain the Property in good condition,
working order and repair. The Lender and any person authorized by the Lender
shall have the right to enter and inspect the Property at all reasonable times.
1.7 SALE, ENCUMBRANCE AND USE
The Borrower shall not, without the Lender's prior written consent
which may be withheld in the Lender's sole discretion for any reason whatsoever,
(1) initiate or allow any transfer, lease, mortgage or other disposition of, or
contract to dispose of, legal or equitable title to all or any part of the
Property; (2) if applicable, change any of the ownership of, commence an action
to dissolve or otherwise effect the dissolution of a corporate or partnership
Borrower or guarantor; (3) if applicable, cause the termination of or change the
ownership, the articles of organization, the operating agreement, or the manager
of a limited liability company Borrower or guarantor; (4) create or allow any
liens or encumbrances against such title; (5) 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 (6) record any
Declaration of Common Interest Community.
1.8 PROPERTY INCOME
The Borrower may collect and use the Property Income, as same
becomes due and payable, so long as no Event of Default, as defined hereinafter,
has occurred, but may not collect the Property Income more than thirty (30) days
in advance of the date the same becomes due. This Section 1.8 shall constitute
an absolute and present assignment of the Property Income. The existence or
exercise of the Borrower's conditional permission to collect the Property Income
shall not operate to subordinate this assignment to any subsequent assignment.
1.9 PROTECTION OF LIEN AND OTHER EXPENSES
The Borrower shall pay, indemnify and hold the Lender harmless from
all costs, disbursements, expenses and reasonable counsel fees incurred by the
Lender in connection with protecting or sustaining the lien of this Mortgage or
collection of the Mortgage Debt, either before or after obtaining judgment of
foreclosure of the Mortgage or judgment on or with respect to the Mortgage Debt.
1.10 FINANCING STATEMENT
This Mortgage is intended to be effective as a financing statement
pursuant to the Connecticut Uniform Commercial Code with respect to the Service
Equipment. The Lender is the secured party and the Borrower is the debtor with
respect to this financing statement and the
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mailing addresses of the secured party and the debtor for the purpose of this
financing statement are set forth hereinabove.
1.11 OTHER DOCUMENTS
The Borrower upon request shall deliver to the Lender all reports,
licenses, permits, approvals, orders, agreements, options, and applications
relating to or affecting the Property.
1.12 PREJUDGMENT REMEDY WAIVER
The Borrower represents, warrants and acknowledges that the
transaction of which this Mortgage is a part is a "commercial transaction" as
defined by the Statutes of the State of Connecticut. Monies now or in the future
to be advanced to or on behalf of Borrower are not and will not be used for
personal, family or household purposes. THE BORROWER HEREBY WAIVES ALL RIGHTS TO
NOTICE AND PRIOR COURT HEARING OR COURT ORDER UNDER CONNECTICUT GENERAL STATUTES
SECTIONS 52-278a ET. SEQ. AS AMENDED OR UNDER ANY OTHER STATE OR FEDERAL LAW
WITH RESPECT TO ANY AND ALL PREJUDGMENT REMEDIES THE LENDER MAY EMPLOY TO
ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER. THE BORROWER FURTHER CONSENTS TO THE
ISSUANCE OF ANY PREJUDGMENT REMEDIES WITHOUT A BOND AND AGREES NOT TO REQUEST OR
FILE MOTIONS SEEKING TO REQUIRE THE POSTING OF A BOND UNDER PUBLIC ACT 93-431 IN
CONNECTION WITH THE LENDER'S EXERCISE OF ANY PREJUDGMENT REMEDY.
1.13 WAIVER OF TERMINATION RIGHTS
The Borrower hereby waives, for itself or any of its assigns who
assume this Mortgage, any rights it may have under Section 49-2(c)(7) of the
Connecticut General Statutes, as amended, or otherwise, to terminate the right
of the Lender to make "optional future advances" as defined under said statute,
including without limitation, Loan Advances made by the Lender pursuant to this
Mortgage, the Credit Agreement, and/or any other Loan Documents.
1.14 FINANCING STATEMENT
This Mortgage is intended to be effective as a financing statement
pursuant to the Connecticut Uniform Commercial Code with respect to the Service
Equipment. The Lender is the secured party and the 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
at the beginning of this Mortgage. Upon request the Borrower shall execute and
deliver to the Lender any security agreement, financing or continuation
statement or other document the 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 the Lender in
connection therewith. The Borrower authorizes the 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
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Equipment in the absence of any signature by or on behalf of the Borrower. This
Open-End Mortgage Deed shall be filed in the real property records of the Town
of Farmington, Connecticut, and shall serve as a fixture filing.
1.15 SECOND MORTGAGE
Notwithstanding any other provisions of this Mortgage to the contrary,
Xxxxxx agrees and acknowledges that this Mortgage is a second mortgage,
subsequent in right in lien and payment priority (and in all other respects) to
a prior first mortgage that is recorded on the applicable land records with
respect to the Property. All provisions of this Mortgage relating to the payment
of, or taking reserves for, Taxes, the requirements regarding insurance
coverage, the application of insurance or condemnation proceeds, or the
rebuilding or repair of the Improvements after a casualty or condemnation with
such proceeds, shall be expressly subject to the provisions of such first
mortgage and the rights of such first mortgagee to obtain such funds and/or make
such decisions. Borrower shall be entitled to refinance the debt secured by such
first mortgage; provided Xxxxxxxx first provides Lender with prior written
notice of such refinancing and evidence that the amount of such refinancing will
not exceed the original principal amount to such first mortgage, in which event
Xxxxxx agrees to enter into a customary subordination agreement with any party
providing such permitted refinancing on terms consistent with this Section 1.15.
2. DEFAULT
2.1 EVENTS OF DEFAULT
Any one or more of the following shall constitute an "Event of
Default" hereunder:
A. The failure to pay the Mortgage Debt in full by the "Maturity
Date" as defined in the Note, 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 or within fifteen (15) days from the date when such
installment is otherwise due and payable in accordance with the provisions of
Section 1.1.
B. The occurrence of an Event of Default (as defined therein) under
any Loan Documents, beyond the expiration of any applicable grace or cure
period.
C. The failure to pay the premiums on or keep in force any insurance
required under Section 1.2.
D. The failure to pay any Taxes within the applicable time periods
set forth under Section 1.3.
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E. The transfer, encumbrance or change in use of, or other action or
non-action with respect to, the Property or the composition of the Borrower in
contravention of the provisions of Section 1.7.
F. The failure of the Borrower to contain, remove or mitigate any
Spill or the Borrower's failure to immediately upon request reimburse the State
of Connecticut or the Lender for any amounts expended by them with respect to
any Spill.
G. The assignment of the whole or any part of the Leases or Property
Income.
H. The actual or threatened waste, removal or demolition of, or
material alteration to, any part of the Property without the Lender's prior
written consent.
I. The failure to observe or perform any other covenants of the
Borrower contained in this Mortgage for a period of thirty (30) days after the
occurrence of such failure.
J. 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.
K. The cancellation, revocation, suspension or failure to receive a
grant or renewal of any and all licenses and permits pertaining to or necessary
for the operation of the business of the Borrower on the Property.
L. The material impairment of the value of any part of the Property
by condemnation or casualty.
3. REMEDIES
Whenever an Event of Default shall have occurred, the Lender may take any
one or more of the following remedial steps:
3.1 ACCELERATION
The Lender may declare, without demand or notice to the Borrower,
the outstanding principal amount of the Loan and the interest accrued 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.
3.2 FORECLOSURE
The 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.
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3.3 POSSESSION OF PROPERTY; APPOINTMENT OF RECEIVER
A. The Lender may, at its option (1) 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.; (2) 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.; and (3) without
taking possession and control of the Property, immediately commence action to
collect directly all Property Income in the place and stead of the Borrower with
full rights and powers to notify all parties liable to make payments of Property
Income to make said payments directly to the Lender or its agents, and the
Lender or its agents shall have the further power and authority to sue for or
otherwise collect and receive all Property Income.
B. The Borrower hereby waives to the fullest extent permitted by law
all rights to prior notice or court hearing in connection with any action by the
Lender of the types set forth in subsection 3.3 A., and the Borrower further
waives any requirement that Lender provide any bond, surety, or other security
in connection with any said action.
C. In the event the Lender or a receiver enters upon and takes
possession and control of the Property and/or the Property Income pursuant to
subsection 3.3 A., said person or entity shall, in addition to such other rights
and powers as may subsequently be authorized, have the right and power to (1)
operate, manage and control the Property and exercise all the rights and powers
of the Borrower in its name or otherwise with respect to the same; (2) make all
necessary and proper maintenance, repairs, replacements, and improvements to the
Property; (3) collect and receive all Property Income; and (4) enforce all terms
of existing contracts pertaining to the Property and enter into such new
contracts as the Lender or the receiver may determine necessary in its sole
discretion.
D. All Property Income collected by the Lender, the Lender's agent
or a receiver pursuant to subsection 3.3 A. shall be applied in such order of
priority as the Lender may determine in its sole discretion to (1) interest and
principal due on the Mortgage Debt; (2) taxes, assessments and insurance
premiums due with respect to the Property and/or the business operations
conducted from the Property; (3) all costs and expenses of operating,
maintaining, repairing and improving the Property; and (4) the compensation,
salaries, expenses and disbursements of any agents, employees, attorneys or
other representatives of the Lender, the Lender's agent or the receiver in
connection with the possession, control and/or operation of the Property and the
business operations conducted therefrom.
E. The Lender, its agents, or any receiver acting pursuant to
subsection 3.3 A. shall in no event be liable or accountable for more moneys
than actually are received from the Property during the period which the Lender,
its agent or any receiver actually is in possession
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and control of the Property. Neither the 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.
F. All costs, expenses and liabilities of every character incurred
by the Lender in managing, operating and maintaining the Property, not paid from
Property Income as hereinabove provided, shall constitute Lender advances
pursuant to Section 3.4.
G. In the event of foreclosure, the Lender, its agent or any
receiver acting pursuant to subsection 3.3 A. may remain in possession of the
Property until (1) the foreclosure sale; (2) the redemption of the Property; or
(3) if a deficiency exists, the expiration of any redemption period of the
United States of America extending subsequent to the foreclosure sale. The
Lender, its agents or the receiver shall incur no liability for, nor shall the
Borrower assert any claim or setoff as a result of, any action taken while the
Lender, its agent or a receiver is in possession of the Property.
3.4 LENDER ADVANCES
The Lender may, without notice or demand, pay any amount which the
Borrower has failed to pay, or perform any act which the Borrower has failed to
perform hereunder. In such event such Lender advances, together with interest
thereon from the date made, at the highest interest rate allowed under the
Credit Agreement shall be (1) added to the Mortgage Debt, (2) payable on demand
to the Lender and (3) secured by the lien of this Mortgage.
3.5 NO MARSHALLING
The Lender shall not be (1) 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; (2) 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; (3) compelled to accept or allow any apportionment of the
Mortgage Debt to or among any separate parts of the Property; or (4) prevented
from selling the Property in one or more parcels or as an entirety and in such
manner and order as the Lender in its sole discretion may elect.
3.6 REMEDIES CUMULATIVE; XXXXXX'S DISCRETION
No remedy conferred upon or reserved to the Lender hereunder is or
shall be deemed to be exclusive but shall be cumulative, and may be exercised in
the sole discretion of the Lender at any time, in any manner, and in any order,
and shall be in addition to and separate and distinct from every other remedy
given the Lender under this Mortgage, the Credit Agreement, or any other Loan
Documents, or now or hereafter existing in favor of the Lender at law or in
equity or by statute. The Lender, in exercising any remedy provided herein under
which it may make payments or perform actions which the 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.
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3.7 NO WAIVER
Time and punctuality shall be of the essence in this Mortgage, but
any delay or failure by the Lender to exercise any right or remedy available to
it upon the occurrence of an Event of Default hereunder shall not constitute a
waiver of such Event of Default or relinquishment of the right in the future to
enforce strict compliance by the Borrower with all of the covenants, conditions
and agreements herein, or of the right to exercise any such rights or remedies
if such Event of Default by the Borrower be continued or repeated. No
modification, amendment, change, or discharge of any term or provision of this
Mortgage shall be valid or binding unless the same is in writing and signed by
the Lender and the Borrower. The Lender may however, without notice to or the
consent of the Borrower, any other person primarily or contingently liable for
the payment of the Mortgage Debt or the holders of any subordinate lien on the
Property, (1) release any part of the security described herein, (2) release the
obligation of any person primarily or contingently liable for the Mortgage Debt
secured hereby, (3) extend the time for payment or otherwise modify the terms of
the Mortgage Debt or this Mortgage, and (4) take any additional security for the
Mortgage Debt. No such release, extension, modification or additional security
shall impair or affect the lien of this Mortgage or its priority over any
subordinate lien and no such party shall be relieved of any liability by reason
thereof.
3.8 NO MERGER
In the event the Lender shall acquire title to the Property by
conveyance from the Borrower or as a result of the foreclosure of any other
mortgage which the 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 the Lender in writing.
4. MISCELLANEOUS PROVISIONS
4.1 FUTURE ADVANCES REGARDING THE TERM LOAN AND THE EQUIPMENT LOAN
This is an "Open-End Mortgage" and the holder hereof shall have all
of the rights, powers and protection to which the holder of any Open-End
Mortgage is entitled under Connecticut law. Upon request the Lender may, in its
discretion, make future advances to the Borrower in connection with the Term
Loan and the Equipment Loan (after its conversion to a term loan no later than
July 31, 2005 pursuant to the terms of the Credit Agreement). Any future
advance, and the interest payable thereon, shall be secured by this Mortgage
when evidenced by a promissory note stating that the note is secured hereby. At
no time shall the principal amount of the debt secured by this Mortgage exceed
the original principal amount of the applicable Note, nor shall the maturity of
any future advance secured hereby extend beyond the date the final principal
payment is due on the applicable Note.
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4.2 FUTURE ADVANCES REGARDING THE REVOLVING CREDIT LOAN AND THE EQUIPMENT
LOAN
This is an "Open-End Mortgage" securing (with respect to the
Revolving Credit Loan and the Term Loan (prior to its conversion to a term loan
no later than July 31, 2005)) a commercial revolving loan and the holder hereof
shall have all of the rights, powers and protection to which the holder of any
Open-End Mortgage securing a commercial revolving loan is entitled under
Connecticut law. Upon request the Lender may, in the Lender's discretion, make
future advances to the Borrower pursuant to the Credit Agreement. Any future
Loan Advance, and the interest payable thereon, shall be secured by this
Mortgage whether or not a promissory note evidences such Loan Advance; provided
that the Lender records such Loan Advance in the Lender's books and records. At
no time shall the principal amount of the Mortgage Debt exceed the full amount
of the Loan authorized in the Credit Agreement nor shall the maturity of any
future advance secured hereby extend beyond the date the final principal payment
is due on the Loan.
4.3 GOVERNING LAW; BINDING EFFECT
This Mortgage shall be governed by and construed, interpreted,
regulated and enforced in accordance with the applicable laws of the State of
Connecticut. All covenants, conditions and agreements herein shall run with the
land, and shall be binding upon and inure to the benefit of the respective
heirs, successors and assigns of the Lender and the Borrower.
4.4 NOTICE
A. Any notice, report, demand or other written instrument 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 by certified mail, return
receipt requested, to all parties hereto simultaneously at their respective
mailing address indicated at the beginning of this Mortgage.
B. The date of receipt of any notice shall be deemed to be, and
shall be effective from, the earlier of (1) the date of the actual receipt of
such notice, or (2) three days after same is deposited in the United States mail
as provided above, whether or not the same is actually received by such party.
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.
4.5 NO AGENCY OR JOINT VENTURE
Nothing contained in this Mortgage shall be construed to cause the
Borrower to become the agent for, or joint venturer with, the Lender for any
purpose whatsoever, nor shall the Lender be 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 the
Lender.
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4.6 INVALID PROVISIONS
If any term or provision herein is judicially determined invalid or
unenforceable then the same shall either be severed from this Mortgage or if
possible reduced in scope to the extent necessary to be valid or enforceable.
4.7 INTERPRETATION
In this Mortgage, unless the context otherwise requires:
A. 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.
B. Words of the masculine gender shall mean and include correlative
words of the feminine and neuter genders and words importing the singular number
shall mean and include the plural number and vice versa.
C. Any headings or captions preceding the texts of the several
sections of this Mortgage shall be solely for convenience of reference and shall
not constitute a part of this Mortgage, nor shall they affect its meaning,
construction or effect.
NOW, THEREFORE, if all agreements and provisions contained herein are
fully kept and performed by the 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, the Borrower has caused this instrument to be executed
and delivered this 21st day of December, 2004.
Signed, sealed and delivered
in the presence of APEX MACHINE TOOL COMPANY, INC.
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Purple
------------------------------- -------------------------------
Xxxxx Xxxxxx
/s /Xxxxx X. Xxxxxxxxx Its Secretary
-------------------------------
13
STATE OF CONNECTICUT )
) ss.: Hartford
COUNTY OF HARTFORD )
On this 21st day of December, 2004, before me, the undersigned officer,
personally appeared Xxxxx Xxxxxx, Secretary of APEX MACHINE TOOL COMPANY, INC.,
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.
/s/ Xxxxxxxx Xxxxx
---------------------------------
Commissioner of Superior Court
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SCHEDULE A
DESCRIPTION OF LAND
SCHEDULE B-1
COPY OF TERM NOTE
SCHEDULE B-2
COPY OF REVOLVING CREDIT NOTE
SCHEDULE B-3
COPY OF EQUIPMENT NOTE
SCHEDULE C
REPAYMENT TERMS
The Borrower shall repay the Loans to the Lender or its order in
accordance with and subject to the terms and conditions contained in the Credit
Agreement which shall be available for inspection and review by interested
parties (during normal business hours and upon reasonable prior notice) at the
offices of both the Lender and the Borrower located at their respective mailing
addresses appearing in the introductory paragraph of this Mortgage. The maximum
amount that may be outstanding under all the Loans is $11,500,000. The maturity
date of (a) the Term Loan is January 1, 2010, (b) the Revolving Credit Loan is
July 31, 2005 (subject to annual renewals), and (c) the Equipment Loan is July
31, 2010. The Term Loan and the Equipment Loan (after conversion to term loan
status no later than July 30, 2005) are both to be amortized in full by their
respective maturity dates through the receipt of the principal portion of level
monthly installments of principal and interest. The interest rate for the Term
Loan is at a fixed rate specified in the Credit Agreement. The interest rate for
the Revolving Credit Loan is at a variable rate specified in the Credit
Agreement, calculated on a daily basis. The interest rate for the Equipment Loan
is initially at a variable rate specified in the Credit Agreement, calculated on
a daily basis, and then after conversion to term loan status no later than July
30, 2005, is at a fixed rate specified in the Credit Agreement. The Loans are
subject to default interest rates, late payment fees, and prepayment fees, all
as more particularly provided in the Credit Agreement.
Unless otherwise specifically provided herein, all capitalized terms
utilized in this Schedule C shall have the same meaning given thereto in the
Mortgage to which this Schedule C is attached.
OPEN-END
MORTGAGE DEED
FROM: APEX MACHINE TOOL COMPANY, INC.
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 06032
TO: BANKNORTH, N.A.
000 Xxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxxx 00000-0000
Dated: December __, 2004
RECORD AND RETURN TO:
Xxxx Xxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
