OPEN-END CONSTRUCTION MORTGAGE DEED AND SECURITY AGREEMENT
Mortgagor: TECHNOLOGY DRIVE LLC
Mortgagor's
Notice Address: 00 Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxxx 00000
Mortgagee: XXXXXXX BANK
Mortgagee's
Notice Address: City Place II, 000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dated: December , 2001
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After recording, please
return to:
Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
OPEN-END CONSTRUCTION MORTGAGE DEED AND SECURITY AGREEMENT
TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
KNOW YE, TECHNOLOGY DRIVE LLC, a Connecticut limited liability company,
with a notification address of 00 Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxxx 00000
(hereinafter called "Mortgagor"), for the consideration of Ten Dollars ($10.00)
and other good and valuable consideration received to Mortgagor's full
satisfaction of XXXXXXX BANK, a federal savings bank chartered under the laws of
the United States of America, having an office located at City Place II, 000
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter called "Mortgagee");
does hereby freely give, grant, bargain, sell, alienate, convey and confirm unto
the Mortgagee, its successors and assigns, forever, the following property,
interests and rights now or hereafter acquired (collectively, the "Mortgaged
Property or the Premises"):
(a) All that certain plot, lot, piece or parcel of land, with the
buildings and improvements now or hereafter placed thereon, situate, lying and
being in the Town of Wallingford, County of New Haven and State of Connecticut
known as 0 Xxxxxxxxxx Xxxxx, XxxXxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, Connecticut, and
more particularly set forth and described in the attached Schedule "A"
(hereinafter called the "Premises").
(b) All the right, title and interest of Mortgagor, now owned or
hereafter acquired, in or to the land lying in the bed of any street, road or
avenue, opened or proposed, and any and all sidewalks, plazas, alleys, strips
and gores, in front of, adjoining or adjacent to the Premises; and any and all
privileges, tenements, hereditaments, licenses, easements, rights, royalties,
mineral, oil and gas rights, issues and profits, water, water rights, water
stock, and appurtenances, reversion or reversions and remainder or remainders
belonging or in any way appurtenant to the Premises.
(c) All right, title and interest of Mortgagor in or to any and all
equipment, machinery, apparatus, appliances, fittings, fixtures, chattels and
articles of personal property of every kind and nature whatsoever, now or
hereafter located in, upon or about the Premises, or any part thereof, and used
or usable in connection with any present or future occupancy or operation of the
Premises, and all renewals and replacements thereof and additions and accessions
thereto, whether or not the same are or shall be attached to the Premises in any
manner (hereinafter collectively called the "Service Equipment"). Service
Equipment shall be deemed to include, without limitation, all heating, lighting,
laundry, incinerating and power equipment, engines, pipes, pumps, tanks, motors,
dynamos, boilers, fuel, conduits, switchboards, plumbing, lifting, cleaning,
refrigerating, ventilating, and communications apparatus, sprinkler systems and
other fire prevention and fire extinguishing apparatus, air cooling and air
conditioning apparatus, elevators, escalators, shades, blinds, awnings, screens,
storm doors, windows, refrigerators, refrigerating plants, wall cabinets,
attached cabinets, partitions, ducts and compressors, pumps, filters, hoses, gas
and electric equipment and fixtures, ranges, stoves, disposals, washing
machines, dryers, furniture, furnishings, tables, chairs, carpets and rugs, and
all right, title and interest of Mortgagor in and to any Service Equipment which
may be subject to any security agreement, conditional xxxx of sale, or chattel
mortgage superior to the rights of Mortgagee under this mortgage (the
"Mortgage"), such other goods, equipment, chattels and personal property as are
usually furnished by landlords in letting premises of the character hereby
conveyed to the extent now or hereafter that Mortgagor has a possessory or title
interest therein; and all renewals or replacements thereof or articles in
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substitution thereof; and all proceeds and profits thereof, including, but not
limited to, any deposits or payments now or hereafter made thereon, all of which
shall be deemed to be fixtures and an accession to the freehold and a part of
the Premises as between the parties hereto, and all persons claiming by, through
or under them, and shall be deemed to be a portion of the security for the
Indebtedness (as hereafter defined) and Mortgagor agrees to execute and deliver,
from time to time, such further documents and instruments as may be reasonably
requested by Mortgagee to confirm, preserve, and enforce the lien of this
Mortgage as to the Service Equipment.
(d) All of the right, title and interest of Mortgagor in and to all
machinery, building supplies and materials, goods, contract rights relating to
construction upon the Premises, inventory, all refundable, returnable or
reimbursable fees, deposits or other funds or evidences of credit or
indebtedness deposited by or on behalf of Mortgagor with any governmental
agencies, boards, corporations, providers of utility services, public or
private, including specifically, but without limitation, all refundable,
returnable or reimbursable tap fees, utility deposits, commitment fees and
development costs, and all other personal property (other than the Service
Equipment) of any kind or character, as defined in and subject to the provisions
of the Connecticut Uniform Commercial Code, now or hereafter located, or to be
located, upon, within or about the Premises, or which are or may be used in or
related to the planning, development, financing or operation of all or any
portion of the Premises, or which are or may be used in or related to the
planning, development, financing or operation of all or any portion of the
Premises, together with all accessories, additions, replacements and
substitutions thereto or therefor and the proceeds thereof and Mortgagor agrees
with respect to all additions and replacements to execute and deliver from time
to time such further instruments as may be reasonably requested by Mortgagee to
confirm the conveyance, transfer and assignment of any of the foregoing.
(e) All right, title and interest in any and all plans,
specifications, shop drawings, and other technical descriptions prepared for any
construction of any improvements on the Premises and all amendments and
modifications thereof.
(f) All right, title and interest of Mortgagor in and under all
escrows, documents, instruments, chattel paper, and general intangibles, as the
foregoing terms are defined in the Connecticut Uniform Commercial Code, and all
contract rights, franchises, books, records, plans, specifications, permits,
licenses, approvals, actions and causes of action, which now or hereafter relate
to, are derived from or are used in connection with the Premises or the use,
operation, maintenance, occupancy or enjoyment thereof or the conduct of any
business or activities thereon.
(g) All right, title and interest of Mortgagor in and under all
leases, lettings, tenancies and licenses of the Premises or any part thereof now
or hereafter entered into and all amendments, extensions, renewals and
guaranties thereof, all security therefor, and moneys payable thereunder
(collectively, the "Leases").
(h) All of the rents, receipts, revenues, issues thereof and profits
now due or which may become due or to which Mortgagor may now or hereafter shall
become entitled (whether upon the expiration of any applicable period of
redemption or otherwise) or may demand or claim, arising or issuing from or out
of any and all using, leasing, licensing, possessing, operating from, residing
in, selling or otherwise enjoying the Mortgaged Property or any part thereof,
including, without limiting the generality of the foregoing, minimum rents,
additional rents, percentage rents, parking maintenance charges or fees, tax and
insurance contributions, proceeds of sale of electricity, gas, chilled and
heated water and other utilities and services, deficiency rents, security
deposits and liquidated damages following default or late payment of
rent,premiums payable by any lessee upon the exercise of a
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cancellation privilege provided for in any of the Leases and all proceeds
payable under any policy of insurance covering loss of rents resulting from
untenantability caused by destruction or damage to the Mortgaged Property,
together with any and all rights and claims of any kind which Mortgagor may have
against any lessee under any of the Leases or any subtenants or occupants of the
Mortgaged Property.
(i) Any and all unearned premiums, accrued, accruing or to accrue
under any insurance policy or policies now or hereafter obtained by Mortgagor
and all proceeds payable by reason of the conversion, voluntary or involuntary,
of the Mortgaged Property, the improvements now or hereafter constructed thereon
and/or any other property or rights encumbered or conveyed hereby, or any part
thereof, into cash or liquidated claims.
(j) Any and all awards or payments, including interest thereon, and
the right to receive the same, which may be made with respect to the Mortgaged
Property as a result of the exercise of the right of eminent domain, the
alteration of the grade of any street, or any other injury to or decrease in the
value of the Mortgaged Property, to the extent of all amounts which may be
secured by this Mortgage at the date of receipt of any such award or payment by
Mortgagee, and of the reasonable attorneys' fees, costs and disbursements
incurred by Mortgagee in connection with the collection of such award or
payment, and Mortgagor agrees to execute and deliver, from time to time, such
further instruments as may be reasonably requested by Mortgagee to confirm such
assignment to Mortgagee of any such award or payment.
(k) Any and all further estate, right, title, interest, property,
claim and demand whatsoever, either in law or in equity, of Mortgagor, in or to
any of the above.
(i) All of the property, interests and rights referred to in
Paragraphs (a) through (k) above and any additional property, interests or
rights hereafter acquired by the Mortgagor are subject to the lien of this
Mortgage are intended to be so are referred to in this Mortgage as the
"Mortgaged Property".
TO HAVE AND TO HOLD the above granted and bargained Mortgaged Property,
with the privileges and appurtenances thereof, unto Mortgagee, its successors
and assigns forever, to Mortgagee and its own proper use and behoof. Mortgagor
does for itself and its successors and assigns also covenant with Mortgagee, its
successors and assigns, that at and until the ensealing of these presents
Mortgagor is well seized of the Mortgaged Property as a good indefeasible estate
in FEE SIMPLE; and has good right to bargain and sell the same in manner and
form as above written; and that the same is free from all encumbrances
whatsoever, except the encumbrances, if any, set forth and listed on the
attached Schedule "B" (the "Permitted Encumbrances").
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AND FURTHERMORE, Mortgagor does by these presents bind itself and its
successors and assigns forever to warrant and defend the above granted and
bargained Mortgaged Property to Mortgagee, its successors and assigns, against
all claims and demands whatsoever, except as aforesaid.
THE CONDITION OF THIS DEED IS SUCH THAT, WHEREAS, Mortgagor is justly
indebted to Mortgagee by virtue of a construction loan made this date from
Mortgagee in favor of Mortgagor in the sum of up to SIX MILLION NINE HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS ($6,975,000.00) (the "Loan"), which Loan is
evidenced by Mortgagor's Construction Mortgage Note for said Loan of even date
herewith payable to Mortgagee or order, (the "Note"), as said Note may be
hereinafter amended, modified or extended, and Mortgagor is also indebted to
Mortgagee for all amounts, sums and expenses paid hereunder by Mortgagee
according to the terms thereof and hereof and
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all other obligations and liabilities of Mortgagor under this Mortgage and the
Note, together with all interest on the said indebtedness, obligations,
liabilities, amounts, sums and expenses (all of the aforesaid, collectively,
including the Note, being referred to herein as the "Indebtedness"); and
WHEREAS, buildings or improvements on said Mortgaged Property are in the
process of construction or repair, or to be erected or repaired; whereas the
Mortgagee has agreed to make the Loan herein described to be paid over to
Mortgagor in installments as the work progresses, the time and amount of each
advancement to be at the sole discretion and upon the estimate of Mortgagee,
pursuant to the terms of the Note and the Construction Loan Agreement, dated as
of the date hereof and executed by Borrower in favor of Lender (the
"Construction Loan Agreement"), so that when all of the work at Premises shall
have been completed to the satisfaction of the Mortgagee, the Mortgagee shall
then pay over to the Mortgagor any balance necessary to complete the full loan
of up to SIX MILLION NINE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($6,975,000.00)
The indebtedness of all such future advances made to the Mortgagor under the
Note shall be evidenced by the Note and shall be secured by the lien of this
Mortgage.
WHEREAS, The Mortgagor agrees to complete the erection of the building to
be constructed and located at the Premises in accordance with the terms and
conditions of the Construction Loan Agreement, in material conformance with the
building plans and specifications approved by Mortgagee and/or its agents
("Approved Plans"), within a reasonable time from the date hereof, or, at the
latest on or before the date that is twelve (12) months from the date hereof;
and
WHEREAS, the outstanding principal balance of the Note, including any and
all future advances made pursuant thereto, shall be due and payable in full no
later than the date that is ninety-six (96) months from the date of the Note
pursuant to the terms and conditions of the Note;
AND, WHEREAS, IN CONSIDERATION THEREOF, AND IN ORDER MORE FULLY TO PROTECT
THE SECURITY OF THIS MORTGAGE, MORTGAGOR HEREBY REPRESENTS, WARRANTS, COVENANTS
AND AGREES AS FOLLOWS:
I.
COVENANTS OF MORTGAGOR
1.1. Competence to Execute Loan Documents. Mortgagor is a limited liability
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company in existence in the State of Connecticut and has full power and
authority to execute and deliver the Note, this Mortgage, all Financing
Agreements (as hereafter defined) and all other agreements and documents
required of Mortgagor, to Mortgagee, and the execution and delivery of the same
is not in violation of and will not result in a default (or with the giving of
notice or the passage of time, or both, would constitute such a default)
pursuant to any agreements or understanding, whether written or oral, which
Mortgagor has or may have with any person or entity. Mortgagor's execution and
delivery of the same has been duly authorized.
1.2. Legal Tender, Joint and Several Liability and Application of Payments.
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Mortgagor shall pay the entire Indebtedness stated in the Note, including, but
not limited to, all outstanding principal and the interest thereon in lawful
money of the United States at the times and in the manner set forth in the Note
and herein.
Unless applicable law provides otherwise, all payments received by
Mortgagee under the Note and this Mortgage, at the option of Mortgagee, shall be
applied by Mortgagee in the following order:
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(a) to the then outstanding charges and expenses incurred by Mortgagee
in sustaining and/or enforcing any security granted to Mortgagee in connection
with the Note and as otherwise provided herein and in the Financing Agreements;
(b) to the then outstanding late charges imposed against Mortgagor in
connection with the loan evidenced by the Note;
(c) to any unpaid and accrued interest; and then
(d) to the outstanding principal Indebtedness of Mortgagor in favor of
Mortgagee.
1.3. Taxes, Assessments and Other Charges. At Mortgagee's option, Mortgagor
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shall pay to Mortgagee at the time of each installment of principal and interest
due under the Note, and commencing with the first payment due after the date of
such request, an amount which represents a sum equal to (a) the amount of the
next installment of taxes and assessments levied or assessed against the
Premises, and/or (b) the premiums which will next become due on the insurance
policies required by the Mortgage, all in amounts as estimated by Mortgagee,
less all sums already paid therefor or deposited with Mortgagee for the payment
thereof, divided by the number of payments to become due before one (1) month
prior to the date when such taxes and assessments and/or premiums, as
applicable, will become due, such sums to be held by Mortgagee to pay the same
when due. If such escrow funds are not sufficient to pay such taxes and
assessments and/or insurance premiums, as applicable, as the same become due,
Mortgagor shall pay to Mortgagee, upon request, such additional amounts as
Lender shall estimate to be sufficient to make up any deficiency. No amount paid
to Mortgagee hereunder shall be deemed to be trust funds but may be commingled
with general funds of Mortgagee and no interest shall be payable thereon. Upon
the occurrence of an Event of Default (as that term is defined herein),
Mortgagee shall have the right, at its sole discretion, to apply any amounts so
held against the Liabilities (as that term is defined herein). If Mortgagor is
not required to pay tax escrows pursuant to this Section, Mortgagor shall
promptly provide to Mortgagee on a semi-annual basis (if such taxes or
assessments are payable semi-annually) or on a quarterly basis (if such taxes or
assessments are payable quarterly), copies of receipted tax bills, cancelled
checks or other evidence satisfactory to Mortgagee evidencing that such taxes
and assessments have been timely paid. Mortgagor agrees that all amounts
currently held in escrow by Mortgagee in connection with this Mortgage shall be
included and considered part of the escrow described above for all purposes.
Following Mortgagor's full repayment of the Loan, Mortgagee shall return to
Mortgagor any escrowed amount held by Mortgagee that is not required to be paid
pursuant to this Section 1.3.
1.4. Insurance.
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(a) Hazard Insurance. Mortgagor shall keep the Mortgaged Property and
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any and all alterations, rebuilding, replacements and additions thereto, insured
for the benefit of Mortgagee pursuant to policies which shall be written on a
broad form Builder's All Risk, Completed Value non-reporting form, which shall
include coverage therein for "completion and/or premises occupancy" and provide
coverage of not less than coverage encompassed by Fire, Extended Coverage and
Vandalism and Malicious Mischief perils broadened to so-called "Direct or All
Risk of Physical Loss" (hereinafter collectively called the "Hazards and
Risks"), all in formats reasonably approved by Mortgagee and in an amount
equivalent to one hundred percent (100%) of the full insurable value thereof
(excluding foundation and site improvements) with such insurance to provide for
the full replacement cost excluding the footings and foundations below the lower
basement floor undersurface, or if there is no basement,
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that surface which is below ground level; without deduction for depreciation.
All policies shall also include an "agreed amount endorsement." Such insurance
shall not contain any clause which would result in the insured thereunder being
required to carry insurance with respect to the property covered thereby in an
amount equal to the minimum specific percentage of the full replacement cost of
such property in order to prevent the insured therein named from becoming a
co-insurer of any loss under such policy. All insurance herein provided for
shall cite Mortgagee as a first mortgagee/loss payee and shall be obtained by
Mortgagor (notwithstanding the procurement of other insurance policies by other
persons or parties and relating to the Mortgaged Property) and carried in
companies reasonably approved by or reasonably satisfactory to Mortgagee.
Notwithstanding the foregoing, Mortgagor shall have the right of free choice in
the selection of the agent or insurer through or by which the insurance required
hereunder is to be placed; provided, however, said insurer must be authorized to
write such insurance in the State of Connecticut, must have a licensed resident
agent in this State and must have, at all times while this Mortgage is in
effect, a general policyholder's rating of at least A-12 in Best's latest rating
guide. All policies, including additional and renewal policies, shall contain an
agreement by the insurer that such policy shall not be modified or cancelled
without at least thirty (30) days prior written notice to Mortgagee, and all
renewal policies, marked premium paid, shall also be delivered to Mortgagee at
least thirty (30) days before the expiration thereof. All policies, including
additional and renewal policies, shall be payable, in case of loss or damage, to
Mortgagee as the first mortgagee, and shall contain the standard mortgage
endorsement and non-contributing mortgagee clause as well as standard waiver of
subrogation endorsement, and waiver of other endorsements, as Mortgagee may
reasonably require from time to time, all to be in form reasonably acceptable to
Mortgagee and shall be supplied to Mortgagee together with, at Mortgagee's sole
discretion, (i) a paid receipted xxxx for a minimum of a one year premium or
(ii) a paid receipted xxxx issued on a monthly basis evidencing the Mortgagor's
installment payment of the premium due for such insurance coverage. If Mortgagee
shall in any manner acquire title to the Mortgaged Property, it shall thereupon
become the sole and absolute owner of all insurance policies held by or required
hereunder to be delivered to Mortgagee, with the sole right to collect and
retain all unearned premiums and dividends. In the event of any loss, Mortgagor
will give immediate notice thereof to Mortgagee. Mortgagor hereby authorizes
Mortgagee, at its option, to collect, adjust and compromise any losses under any
of the insurance policies after deducting the costs of collection, to apply the
proceeds, at Mortgagee's sole option, as follows: (i) as a credit upon the
indebtedness secured hereby, whether or not the same shall be then due and
payable (except to the extent the amount of the casualty is determined to be
less than $150,000.00, in which event Mortgagor shall be obligated to use such
proceeds to repairing or restoring the Mortgaged Property), or (ii) to repairing
or restoring the Mortgaged Property or any part thereof, in which event,
Mortgagee shall not be obligated to see to the proper application thereof, nor
shall the amount so released or used be deemed a payment on any Indebtedness as
secured hereby and, if any amounts are applied to principal, they shall be
applied to installments in inverse order of maturity. The Mortgagee reserves the
right to increase the amount of any insurance coverage required hereunder to an
amount deemed reasonably necessary by the Mortgagee and to approve the form and
content of all insurance policies evidencing such coverage. Any failure on the
part of the Mortgagee to secure physical evidence of any insurance required
herein shall not relieve the Mortgagor of its responsibilities hereunder.
(b) Liability Insurance. Mortgagor shall obtain, carry and maintain
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such comprehensive casualty, general liability and indemnity insurance,
including, but not limited to, Workers' Compensation insurance as may be
reasonably required from time to time by Mortgagee in forms and with companies
reasonably approved by Mortgagee, and in an amount of not less than $3,000,000
for bodily injury and/or property damage liability written on an occurrence
basis with a broad form endorsement. Such insurance policies, including renewals
thereof, shall be deposited with Mortgagee and shall contain a provision
designating Mortgagee as an additional insured party and provide for not less
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than thirty (30) days written notice to Mortgagee prior to any cancellation
thereof or material change therein.
(c) Other Insurance. Mortgagee may, at its option, require Mortgagor
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to obtain additional insurance in forms, amounts, substance and with companies,
institutions or persons reasonably satisfactory to Mortgagee. Such insurance
shall provide coverage for, but not be limited to: earthquakes, including
subsidence; errors and omissions; fidelity bond insurance; and/or such other
insurance reasonably requested by Mortgagee from time to time. If at any time,
the Mortgaged Property shall be deemed to be "nonconforming" due to the
enactment of any building code, ordinance or regulation, Mortgagor shall
immediately insure the Mortgaged Property against: (i) contingent liability from
the operation of any such building laws; (ii) demolition insurance; (iii)
increased cost of construction insurance; and (iv) increased time to rebuild
insurance protection, all in such formats and amounts as shall be satisfactory
to Mortgagee.
If, at any time during the term of this Mortgage, including any
extensions thereof, the area in which the Premises, or any part thereof, is
located is designated as a "flood prone" area pursuant to the Flood Disaster
Protection Act of 1973, or any amendment or supplements thereto, or if such area
is identified on official flood maps published by the Federal Emergency and
Management Agency as either an "A," "X0-00," "XX," "X00," "XX," "V," "V1-30,"
"VE," "VO," "M," or "E," "flood" area/zone, then, in such event, Mortgagor shall
promptly obtain flood insurance (or a formal policy application and evidence as
to its payment of the full initial annual premium therefor in the event such
determination is made immediately prior to the date hereof and during such
initial insurance acquisition waiting period) in an amount equal to that
coverage available pursuant to regulations adopted from time to time by the
National Flood Insurance Program or the amount of indebtedness hereby secured,
whichever is less, and shall otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973. Mortgagor
further covenants and agrees to fully comply with the requirements of the
National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of
1973, as the same may be amended from time to time, and any other law, order,
rule, ordinance or regulation concerning flood insurance, to the extent that the
same apply to the Premises, or any part thereof.
1.5. Eminent Domain. In the event that the whole or any part of the
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Mortgaged Property shall be taken by eminent domain, or in the event of any
alteration of the grade of any street or highway, or of any other injury to or
decrease in value of the Mortgaged Property, or in the event of the
reacquisition of the whole or any part of the Mortgaged Property pursuant to the
terms of any redevelopment plan or agreement affecting the Mortgaged Property or
if any agreement shall be made between Mortgagor and any entity vested with the
power of eminent domain, any and all awards and payments on account thereof
shall be deposited with Mortgagee as further security for the Loan. Mortgagor
shall give Mortgagee immediate notice of the actual or threatened commencement
of any of the foregoing proceedings, and shall deliver to Mortgagee copies of
all papers served in connection with any such proceedings. The Mortgagee shall
have the right to intervene and participate in any proceedings for and in
connection with any such taking, unless such intervention shall be prohibited by
the court having jurisdiction over such taking, in which event Mortgagor shall
consult with Mortgagee in connection with such proceedings; and Mortgagor shall
not enter into any agreement with regard to the Mortgaged Property or any award
or payment on account thereof unless Mortgagee shall have consented thereto in
writing, which consent shall not be unreasonably withheld. Mortgagee shall have
the right, at Mortgagee's option, to adjust, compromise or settle the claim for
any such award or payment, to collect, receive and retain the proceeds thereof
all of which shall be applied to the Loan, and to give proper receipts therefor.
Mortgagor further agrees, on request, to make, execute, and deliver to Mortgagee
any and all assignments and other instruments, as Mortgagee may reasonably
require, to confirm or assign all
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such awards and payments to Mortgagee free and clear of any and all encumbrances
of any nature whatsoever.
Notwithstanding any such taking, alteration of grade, other injury to
or decrease in value of the Mortgaged Property, or reacquisition of title, or
agreement, Mortgagor shall continue to pay interest on the principal sum secured
hereby at the rate provided in the Note, and to make any and all payments
required by said Note and this Mortgage. Any reduction in the principal sum
resulting from the application by Mortgagee of such award or payment as
hereinafter set forth shall be deemed to take effect only on the date of such
application. The proceeds of any award or payment, after deducting the expenses
of collection, including, but not limited to, the counsel fees, other costs and
disbursements, incurred by Mortgagee, may be applied by Mortgagee, at its
option, toward payment of the indebtedness secured hereby whether or not the
same shall be then due or payable (and, if any portion thereof is applied to the
principal of the Note, it will be applied in inverse order of maturity), or be
paid over wholly or in part to Mortgagor for the purposes of altering or
restoring any part of the Mortgaged Property which may have been damaged as a
result of any such taking, alteration of grade, or other injury to the Mortgaged
Property, or for any other purpose or object satisfactory to Mortgagee, but
Mortgagee shall not be obligated to see to the proper application of any amount
paid over to Mortgagor, nor shall the amount so paid over to Mortgagor be deemed
a payment on any indebtedness secured hereby.
If prior to the receipt by Mortgagee of such award or payment, the
Mortgaged Property shall have been sold on foreclosure of this Mortgage,
Mortgagee shall have the right to receive said award or payment to the extent of
the debt secured by this Mortgage remaining unsatisfied after such sale of the
Mortgage Property, with interest thereon at the rate set forth in the Note,
whether or not a deficiency judgment on this Mortgage shall have been sought or
recovered or denied, and to the extent of the counsel fees, costs and
disbursements incurred by Mortgagee in connection with the collection of such
award or payment.
1.6. Insurance Escrow. Mortgagor agrees, after an Event of Default and at
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the option of Mortgagee, to add to each such installment an additional amount
reasonably estimated by Mortgagee to be sufficient to enable Mortgagee to pay
the premiums that will next become due and payable on the policies of fire,
hazard, or other insurance to be obtained pursuant to this Mortgage. Any
deficiencies because of the insufficiency of such additional payments shall be
promptly deposited by Mortgagor with Mortgagee upon demand by Mortgagee. No
trust relationship shall exist between Mortgagor and Mortgagee as to said funds
so deposited, and said funds may be co-mingled with Mortgagee's other funds, and
no interest shall be paid by Mortgagee to Mortgagor for any funds so deposited.
After the occurrence of an Event of Default hereunder, Mortgagee, at its option
at any time after such default, may apply the balance remaining of said funds so
deposited, as a credit against the Indebtedness in such manner as Mortgagee may
determine.
1.7. Statement on Encumbrances. Upon request by Mortgagee, Mortgagor shall
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obtain from all persons hereafter having or acquiring any interest in or
encumbrance on the Mortgaged Property or any part thereof, a writing, duly
acknowledged and stating the nature and extent of such interest or encumbrance
and that the same is subordinate to this Mortgage and that no offsets or
defenses exist in favor thereof against this Mortgage or the Note secured
hereby, and Mortgagor shall deliver such writing to Mortgagee.
1.8. Books, Records and Accounts. Mortgagor will keep and maintain or will
---------------------------
cause to be kept and maintained proper and accurate books, records and accounts
reflecting all items of income and expense in connection with the ownership and
operation of the Mortgaged Property or any part thereof,
8
including, but not limited to, any services, equipment or furnishings provided
in connection therewith, whether such income or expenses be realized by
Mortgagor or by any other person or entity whatsoever and will furnish the same
to Mortgagee upon request. Mortgagee or its designee shall have the right from
time to time at all times during normal business hours to examine such books,
records and accounts at the office of Mortgagor or other person or entity
maintaining such books, records and accounts and to make such copies or extracts
thereof as Mortgagee shall desire, provided that upon request of Mortgagor,
Mortgagee shall execute a confidentiality agreement in form satisfactory to
Mortgagee to the extent required by applicable securities laws.
1.9. Right to Enter Premises. Mortgagor hereby grants to Mortgagee and any
-----------------------
persons authorized by Mortgagee the unobstructed right to enter and inspect the
Mortgaged Property at all times during normal business hours after at least 48
hours prior notice to Mortgagor, except in the case of an emergency in which
case no prior notice is required.
1.10. Protection of Mortgage Lien. Mortgagor shall pay all costs and
---------------------------
expenses, including reasonable counsel fees, incurred by Mortgagee in
protecting, sustaining or enforcing the lien of this Mortgage. Mortgagor shall
indemnify and hold Mortgagee harmless from all such costs and expenses,
including, but not limited to, counsel fees, recording fees, costs of title
searches, continuation of abstract and preparation of survey, incurred by reason
of any action, suit, proceeding, hearing, motion or application before any court
or administrative body in which Mortgagee may be a party by reason hereof,
including, but not limited to, condemnation, bankruptcy and administrative
proceedings, as well as any other proceedings wherein proof of claim is required
to be filed or in which it becomes necessary, in Mortgagee's sole opinion, to
defend or uphold the terms and priority of this Mortgage. All money paid or
expended by Mortgagee in that regard, together with interest thereon from the
date of such payment at the rate set forth in the Note, shall be additional
indebtedness secured hereby and shall be immediately and without notice due and
payable to Mortgagee by Mortgagor.
1.11. Waiver of Liens. Mortgagor shall furnish to Mortgagee all such
---------------
waivers and releases of liens or claims upon any Service Equipment as Mortgagee
may reasonably require, and shall keep and maintain the Mortgaged Property free
from the claim of all persons supplying labor or materials in connection with
the construction or repair of any building on the Premises, to the extent
applicable. If any mechanics lien is filed against the Mortgaged Property,
Mortgagor shall cause, at its sole cost and expense, the same to be released,
discharged or bonded of record within sixty (60) days after the date of filing
thereof.
1.12. Right to Cure. Mortgagor agrees that, at Mortgagee's option, in case
-------------
Mortgagor shall fail to pay the same when due and such failure continues beyond
notice and cure periods, to the extent provided by applicable law, Mortgagee may
pay any expense or item (including, but not limited to, taxes, rates,
assessments, other charges, insurance premiums, maintenance and repair expenses,
and expenses incurred in protection of the lien of this Mortgage) which
Mortgagor herein agrees to pay; and may perform any acts or covenants which
Mortgagor herein agrees to perform and shall fail to perform, and may add the
same, and the expense thereof, including, but not limited to, reasonable counsel
fees and other costs, charges and disbursements incurred by Mortgagee in
connection therewith, to the Indebtedness or may, at its option, deduct the same
from any part of money thereafter advanced and Mortgagor agrees to repay on
demand, the same to Mortgagee, together with interest thereon at the rate set
forth in the Note, from the date on which such payment or expense is made or
incurred by Mortgagee, and the same shall be a lien upon the Mortgaged Property
prior to any right, title, interest, lien or claim thereto or thereon attaching
or accruing subsequent to the lien of this Mortgage and shall be deemed to be
secured by this Mortgage. Notwithstanding the foregoing, Mortgagor may in good
faith by appropriate
9
proceedings and upon notice to Mortgagee, contest the validity, applicability or
amount of any asserted tax or assessment, so long as (i) such contest is
diligently pursued, (ii) Mortgagee determines in its sole opinion, that such
contest suspends the obligation to pay the tax and that nonpayment of such tax
or assessment will not result in the sale, loss, forfeiture or diminution of the
Mortgaged Property or any part thereof or any interest of Mortgagee therein, and
(iii) prior to the earlier of the commencement of such contest or the
delinquency date of the asserted tax or assessment, Mortgagor deposits with
Mortgagee an amount determined by Mortgagee to be adequate to cover the payment
of such tax or assessment and a reasonable additional sum to cover possible
interest, costs and penalties; provided, however, that Mortgagor shall promptly
cause to be paid any amount adjudged by a court of competent jurisdiction to be
due, with all interest, costs and penalties thereon, promptly after such
judgment becomes final; and provided further that in any event each such contest
shall be concluded, the taxes, assessments, interests, costs and penalties shall
be paid prior to the date any writ or order is issued under which the Mortgaged
Property may be sold, lost or forfeited.
1.13. Reliance on Documents. Mortgagor covenants that Mortgagee, in making
---------------------
any payment herein authorized in the place and stead of Mortgagor which (i)
relates to taxes, assessments, or any other Impositions and any other
governmental or municipal charges, fines, impositions or liens asserted against
the Mortgaged Property, may do so according to any xxxx, statement or estimate
procured from the appropriate public office without inquiry into the accuracy
thereof or into the validity of any tax, assessment, sale, forfeiture, tax lien
or title or claim thereof; or (ii) relates to insurance premiums, may do so
according to any notice, xxxx, statement or estimate procured from the
appropriate insurer without inquiry into the accuracy or validity thereof; or
(iii) relates to any apparent or threatened adverse title, lien, statement of
lien, encumbrance, claim or charge, shall be the sole judge of the legality or
validity of same; or (iv) relates to the expense of repairs or replacement of
any buildings, improvements, Service Equipment or any other Mortgaged Property,
shall be the sole judge of the state of repairs and the necessity for incurring
the expense of any such repairs or replacement; or (v) otherwise relates to any
other purpose not specifically enumerated in this Article, may do so whenever,
in its reasonable judgment and discretion, such payment shall seem necessary or
desirable to protect the full security intended to be created by this Mortgage,
and provided further that, in connection with any such payment, Mortgagee, at
Mortgagee's option, may and is hereby authorized to obtain a continuation report
of title prepared by a title insurance company, the costs and expenses of which
with report shall be payable by Mortgagee.
1.14. Indemnification. Mortgagor expressly agrees that any and all expenses
---------------
incurred in connection with the Indebtedness shall be paid by Mortgagor,
including, but not limited to, the cost of title insurance premiums and charges,
recording fees, survey costs, brokerage fees, fees charged for the placement and
servicing of the Indebtedness, appraisal fees, construction inspection fees,
fees charged by consulting architects and engineers, costs of document
preparation, and Mortgagee's reasonable attorneys' fees and out-of-pocket
expenses and disbursements. Mortgagor agrees to pay all such fees and indemnify
and save Mortgagee harmless against the claims of any persons claiming any fees,
reimbursements, commissions and/or costs arising out of the Indebtedness.
Mortgagor shall indemnify, defend and hold Mortgagee and Mortgagee's directors,
officers, employees and agents harmless from and against and reimburse them on
demand for all claims, demands, liabilities, losses, damages, judgments,
penalties, costs and expenses (including reasonable attorneys' fees and amounts
paid in settlement) which may be imposed upon, asserted against, or incurred or
paid by any of them (a) by reason of, on account of or in connection with any
act or occurrence relating to the Mortgaged Property or any bodily injury,
death, other personal injury or property damage occurring in, upon or in the
vicinity of the Premises through any cause whatsoever, (b) as a result of the
failure of Mortgagor to perform any of its obligations under any of the
Financing Agreements, or (c) on account of any act performed or omitted to be
performed hereunder or on account of any transaction arising out of or in any
way connected with the Mortgaged
10
Property, this Mortgage any Financing Agreement or the Indebtedness, including,
without limitation, all claims of any brokers arising out of or in connection
with the Note and the transactions contemplated hereunder, except as a result of
the gross negligence and willful misconduct of Mortgagee. Mortgagor shall
indemnify and repay Mortgagee promptly upon demand for any expenditures or
amounts advanced by Mortgagee at any time under the Financing Agreements, except
that principal and interest under the Note shall be paid in accordance with the
terms set forth in the Note.
1.15. Maintenance and Repair. Mortgagor shall maintain the Mortgaged
----------------------
Property in good condition, working order and repair, and shall not commit or
suffer any waste thereon. Mortgagor shall promptly repair, restore, replace or
rebuild any part of the Mortgaged Property which may be damaged or destroyed by
any casualty whatsoever or which may be affected by any proceeding of the
character referred to in the Article hereof entitled "Eminent Domain."
1.16. Alteration and Demolition. Mortgagor agrees that no building or other
-------------------------
property now or hereafter covered by the lien of this Mortgage shall be removed,
demolished, or structurally altered without the prior written consent of
Mortgagee, which consent shall not be unreasonably withheld, except that
Mortgagor may remove or dispose of, free from the lien of this Mortgage, any
Service Equipment as from time to time may become worn out or obsolete, provided
that prior to such removal, any such Service Equipment shall be replaced with
other equipment of value and utility at least equal to that of the replaced
Service Equipment and free from any title retention or security agreement or
other encumbrance. By such removal and replacement, Mortgagor shall be deemed to
have automatically subjected such other equipment to the lien of this Mortgage
and the Article hereof entitled "Security Agreement". Mortgagor shall
immediately notify Mortgagee of any such replacement and shall further execute
such mortgage, security agreement, or other documents as Mortgagee may require
with respect thereto.
1.17. Restrictions on Sale and Use of Premises and Collateral. Mortgagor
-------------------------------------------------------
will not sell, lease, pledge, mortgage, grant a deed or trust, otherwise
encumber, suffer change in title or ownership of, or otherwise transfer, or vest
title in anyone other than Mortgagor to, all or any part of the Mortgaged
Property or any other collateral granted to the Mortgagee as security for the
Loan or any other indebtedness or obligation owed by the Mortgagor to the
Mortgagee, while any part of the indebtedness secured hereby remains unpaid,
except with Mortgagee's prior written consent. Further, unless required by
applicable law or unless Mortgagee has otherwise agreed in writing, Mortgagor
shall not allow changes in the nature of the uses and occupancy for which the
Premises were intended on the date of this Mortgage.
1.18. Independence of Premises. Mortgagor shall not by act or omission
------------------------
permit any building or other improvements on the Premises not subject to the
lien of this Mortgage to rely on the Premises or any part thereof or any
interest therein to fulfill any municipal or governmental requirement for the
existence of such premises or such building or improvement; and no building or
other improvement on the Premises shall rely on any premises not subject to the
lien of this Mortgage or any interest therein to fulfill any governmental or
municipal requirement. Mortgagor shall not by act or omission impair the
integrity of the Premises as a single subdivided zoning lot separate and apart
from all other premises.
1.19. Compliance with Local, State and Federal Regulations.
----------------------------------------------------
(a) Mortgagor has or will to the extent appropriate and obtainable,
procured any and all necessary certificates, licenses, authorizations,
registrations, permits, environmental and zoning
11
resolutions and/or approvals necessary for the operation of all present and
contemplated improvements and businesses at the Mortgaged Property.
(b) Respecting the Mortgaged Property and the use and operation
thereof, Mortgagor and any guarantor are and shall at all times remain in
compliance with all federal, state and local laws and ordinances with respect to
the conduct of Mortgagor's business or business operations, and Mortgagor and
any guarantor of the Indebtedness are not and shall not be at any time in
violation of any zoning, environmental protection (including, without
limitation, air pollution, water pollution, and inland wetland proscriptions),
health, occupation, safety or other law, regulation or order.
1.20. Covenants Regarding Construction. Mortgagor hereby covenants and
--------------------------------
agrees with Mortgagee that Mortgagor shall:
(a) Promptly proceed with the construction and erection of the
improvements on the Premises in accordance with the plans and specifications to
be approved by Mortgagee (the "Approved Plans");
(b) Complete all construction and erection of said improvements
substantially in conformity with the Approved Plans and change orders approved
by Mortgagee or otherwise permitted hereunder and any and all applicable present
and future requirements of municipal, state or federal authorities having
jurisdiction thereover but in no event later than the date that is twelve (12)
months from the date hereof, and promptly notify Mortgagee of any notice,
communication or order from any such authorities;
(c) Apply each advance received by Mortgagor under the Financing
Agreements solely for the specific purposes approved by Mortgagee in connection
with Mortgagor's specific request for said advance in accordance with the
Approved Plans and for no other purpose;
(d) In the event of termination, cancellation or suspension of any
governmental agreement, approval, certificate, license or permit which is
necessary for the commencement, continuation or completion of construction,
Mortgagor shall restore or remedy such termination, cancellation or suspension
within fourteen (14) days thereafter, provided that if such cannot be restored
or remedied within fourteen (14) days; then Mortgagor shall commence all actions
required to restore or remedy such matter within such fourteen (14) day period
and diligently complete such restoration or remedy thereafter. Mortgagor shall
give notice to Mortgagee of any such termination, suspension or cancellation
within three (3) business days after receipt thereof. If Mortgagor is threatened
with any such termination, suspension or cancellation, Mortgagor shall promptly
notify Mortgagee thereof and shall use every reasonable means to prevent such
termination, suspension or cancellation form occurring. Mortgagor hereby further
agrees to promptly forward the copy of any notice or communication from any
governmental authority pertaining to the aforesaid construction to Mortgagee;
(e) Furnish requests for advances in accordance with the terms and
conditions of that certain Construction Loan Agreement, dated as of the date
hereof, executed by Mortgagor, as borrower, in favor of Mortgagee, as lender,
and support such requests with the documentation required pursuant to the
Construction Loan Agreement;
(f) Not perform any further work on said improvements after Mortgagee
has ordered stoppage of construction without the prior written consent of
Mortgagee unless and until the condition that led to said stop order has been
fully corrected to Mortgagee's sole satisfaction. Mortgagee shall have
12
the right to order such stoppage and to demand that a condition be corrected
when a material deviation from the Approved Plans appears, or defective or
unworkmanlike labor or materials are being used in the construction of said
improvements, or upon the occurrence of any breach of or default hereunder;
(g) Secure each and every permit, license or approval required to be
obtained in connection with the contemplated construction of the improvements
upon the Premises in accordance with the Approved Plans;
(h) Permit the Mortgagee to conduct regular progress and quality
inspections of the Premises in order to analyze and substantiate each request
for an advance under the Note. All such inspections shall be made, at the
Mortgagor's sole cost and expense, by an inspector approved by the Mortgagee, at
its sole discretion.
II.
SECURITY AGREEMENT
2.1. Creation of Security Interest. This Mortgage shall constitute a
-----------------------------
Security Agreement within the meaning of the Connecticut Uniform Commercial Code
(the "Code") with respect to all sums on deposit with Mortgagee hereunder
("Deposits") and with respect to any property included in the definition herein
of the words "Mortgaged Property," which interests or property may not be deemed
to form a part of the real estate described in Schedule "A" or may not
------------
constitute a "fixture" (within the meaning of the Code), and all Service
Equipment and all replacements of and substitutions for such property and
interests, additions to such property, and the proceeds thereof (said property,
interests, replacements, substitutions, the proceeds thereof being sometimes
herein collectively referred to as the "Collateral"). A security interest in and
to the Collateral is therefore hereby granted to Mortgagee. The Deposits and all
of Mortgagor's right, title and interest therein are hereby assigned to
Mortgagee. The foregoing rights and Collateral are hereby granted or assigned to
Mortgagee to secure payment of the entire indebtedness secured hereunder and to
secure performance by Mortgagor of the terms, covenants and provisions hereof.
Accordingly, in addition to any other rights and remedies availed to Mortgagee
hereunder, Mortgagee shall have all the rights of a "secured party" under the
Code, as amended from time to time.
2.2. Warranties, Representations and Covenants of Mortgagor. Mortgagor
------------------------------------------------------
hereby warrants, represents and covenants as follows:
(a) The Collateral, except for the Deposits, shall be kept on or at
the Premises, and Mortgagor shall not remove the Collateral from the Premises
without the prior consent of Mortgagee, except as otherwise provided herein.
Mortgagor shall execute, deliver, file and refile any financing statements,
continuation statements, or other security agreements which Mortgagee may
require from time to time to confirm the continuing lien of this Mortgage with
respect to such property.
(b) The Mortgagor shall not change its name, identity, ownership or
its management while the Indebtedness remains outstanding without the prior
written consent of the Mortgagee. In the event of any change in name,
management, ownership or identity of Mortgagor which is authorized hereunder,
Mortgagor shall promptly, after written request, execute such UCC forms or
statements as are deemed by Mortgagee or required pursuant to the Code to be
necessary to maintain the continuing priority of Mortgagee's lien upon the
Collateral, including future replacements thereof, and shall pay all expenses in
connection with the filing and recording thereof.
13
(c) To the extent permitted by law, Mortgagor hereby authorizes
Mortgagee to sign and file financing or continuation statements at any time with
respect to any of the Collateral, without such financing statements being
executed by or on behalf of Mortgagor. Mortgagor also irrevocably appoints
Mortgagee as its attorney-in-fact, coupled with an interest, to file with the
appropriate public office on its behalf any financing or other statements signed
only by Mortgagee, as secured party, in connection with the Collateral now or
hereafter covered by this Mortgage. Notwithstanding the foregoing, Mortgagor
shall execute or cause to be executed, such additional or alternate financing or
continuation statements required by Mortgagee and shall reimburse Mortgagee for
all costs and expenses of any kind incurred in connection therewith, including,
without limitation, Mortgagee's attorney's fees.
2.3. Financing Statements. A carbon, photographic or other reproduction of
--------------------
this Mortgage or any financing statement relating to this Mortgage shall be
sufficient as a financing statement within the meaning of the Code. This
Mortgage is effective and shall be effective as a financing statement filed as a
fixture filing with respect to the Service Equipment, Collateral and any and all
goods which are or are to become fixtures included within the Mortgaged Property
as shall be filed for record in the applicable land records. The mailing address
of Mortgagee and the address of Mortgagor from which information concerning the
security interest may be obtained are set forth on the cover sheet hereof and in
the section hereof entitled "Notices."
III.
ENVIRONMENTAL MATTERS
3.1. Representations and Indemnity. Mortgagor represents, warrants and
-----------------------------
covenants that:
(a) Except as set forth in that certain Environmental Site Assessment
for Five Vacant Parcels in the Medway Business Park, Wallingford, Connecticut,
dated November, 2000, prepared by GZA GeoEnvironmental, Inc. (the "Phase I"),
and except as necessary for Guarantor to operate the Project for its intended
purpose, no Hazardous Substances (as hereinafter defined), including without
limitation asbestos and the group of organic compounds known as polychlorinated
biphenyls, have been, are or shall be generated, treated, stored or disposed of,
or otherwise deposited in or located on the Premises in violation of applicable
"Environmental Laws" (as that term is defined in that certain Environmental
Indemnity Agreement executed by Mortgagor and Guarantor in favor of Mortgagee as
of the date hereof), including without limitation the surface and subsurface
waters of the Premises;
(b) Except as set forth in the Phase I, no activity is (or, so long as
any portion of the Loan remains unpaid, shall be) undertaken on the Premises
which would cause (1) the Premises to become a hazardous waste treatment,
storage or disposal facility within the meaning of the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. ss.6901 et seq., as the same may be amended from
time to time ("RCRA"), or any similar state laws, regulations or local
ordinances, or (2) a release or threatened release of Hazardous Substances (as
herein defined) on the Premises in violation of Environmental Laws or that
triggers a legal obligation to perform Remedial Work pursuant to Environmental
Laws;
(c) Neither the Mortgagor, Guarantor, nor any tenant or other occupant
of the Premises, nor any other party over whom Mortgagor or Guarantor has
control, shall hereafter cause or suffer to occur, any discharge, spillage,
uncontrolled loss, or other release of oil, petroleum, chemical liquids or
solid, liquid or gaseous products or Hazardous Substances of any kind, at, upon,
under, within, through or emanating from the Premises in violation of applicable
Environmental Laws or that triggers a legal obligation to perform Remedial Work
pursuant to Environmental Laws. Except as set forth in the Phase I, neither
Mortgagor, Guarantor, nor any tenant or other occupant of the Premises, nor any
other
14
party over whom Mortgagor or Guarantor has control, has been, is and shall be
involved in operations at the Premises, nor shall Mortgagor, Guarantor, nor any
tenant or other occupant of the Premises deposit any substances or create any
conditions in or on the Premises, which could support a claim or cause of action
or lead to the imposition on the Mortgagor or any other owner or operator of the
Premises of liability or the creation of a lien on the Premises under any of the
Environmental Laws;
(d) Mortgagor shall comply strictly and in all respects with the
requirements of the applicable Environmental Laws and shall notify Mortgagee
promptly after Mortgagor becomes aware of any spill or contamination upon the
Premises in violation of Environmental Laws or that triggers a legal obligation
to perform Remedial Work pursuant to Environmental Laws, and shall promptly
forward to Mortgagee copies of all orders, notices, permits, applications or
other communications and reports in connection with any such spill or any other
matters relating to the Environmental Laws as they may affect the Premises;
(e) So long as any portion of the Loan remains unpaid and Mortgagee
has reasonable belief that conditions exist that would trigger the
indemnification provisions of this Article III, Mortgagor agrees that Mortgagee
may perform such additional environmental due diligence, from time to time, as
Mortgagee deems necessary in its judgment at Mortgagor's expense. Mortgagor
agrees and recognizes that Mortgagee, at its option, may require that additional
collateral or prepayments of principal be made in the event that an unacceptable
environmental condition shall exist with respect to the Premises, in Mortgagee's
sole discretion. The failure of Mortgagor to satisfy the requirements of
Mortgagee pursuant to this provision with ninety (90) days after written notice
thereof shall be deemed an Event of Default hereunder;
(f) As a further inducement to Mortgagee to enter into the Loan,
Mortgagor and Guarantor covenants and agrees at all times to indemnify, hold
harmless and defend Mortgagee, and its directors, officers, employees, agents,
and any successors or assignees of Lender's interests in the Loan forever,
whether as holder of the Mortgage, as secured party in possession, or as
successor in interest to Mortgagor as owner of the Premises, by virtue of
foreclosure or acceptance of a deed in lieu of foreclosure or otherwise
(collectively, the "Indemnified Parties") from and against any and all
-------------------
liabilities, losses, damages, costs, expenses, penalties, fines, causes of
action, suits, claims, demands or judgments that are not caused by the negligent
acts or any acts in violation of Environmental Laws of any of the Indemnified
Parties, their agents, employees or tenants, including, without limitation,
reasonable attorneys' fees and expenses, suffered or incurred in connection
with: (i) any claim under Environmental Laws including, without limitation,
liens or claims of any federal, state or municipal government or
quasi-governmental agency or any third person, whether arising under the
Environmental Laws or any other federal, state or municipal law or regulation;
(ii) any spill or contamination affecting the Premises, including, without
limitation, any Hazardous Substances located on, under, emanating from or
relating to the Premises from and on and after the date hereof or any portion
thereof or any property contiguous to the Premises from and after the date
hereof, and including, without limitation, any loss of value of the Premises as
a result of any such spill or contamination; and (iii) the direct or indirect
installation, use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal or presence of any Hazardous Substances,
on, under or about the Premises or any portion thereof, from and including all
consequential damages associated with the Loan, the costs of any required or
necessary repair, cleanup or detoxification, and the costs of the preparation
and implementation of any closure, remedial or other required plans;
(g) In the event of any release or spill of Hazardous Substances
affecting the Premises, if Mortgagor shall fail to comply with any of the
requirements of applicable Environmental
15
Laws, Mortgagee may, at its election, but without the obligation so to do (or to
continue to do so if it commences to do so), give such notices and/or cause such
work to be performed at the Premises and/or take any and all other actions as
Mortgagee shall deem necessary or advisable in order to remedy said spill or
cure said failure of compliance, and any amounts paid as a result thereof,
together with interest thereon at the highest rate provided for by the Note from
the date of payment by Mortgagee and until paid shall be added to and become a
part of the indebtedness secured by this Mortgage.
(h) As used in this Agreement, the term "Hazardous Substances" shall
mean "waste materials," "solid waste", and "hazardous substances" as such terms
are defined in Environmental Laws.
3.2. Remedial Work.
-------------
(a) If any investigation, site monitoring, containment, cleanup,
removal, restoration or other remedial work of any kind or nature (collectively,
the "Remedial Work") is required under any applicable Environmental Law because
of or in connection with the current or future presence, suspected presence,
release or suspected release of a Hazardous Substance into the air, soil, ground
water, surface water, or soil vapor on, under or about the Premises or any
portion thereof, Mortgagor shall promptly commence and diligently prosecute to
completion all the Remedial Work. In all events, the Remedial Work shall be
commenced within ninety (90) days after any demand therefor by Mortgagee or such
shorter period as may be required under any applicable Environmental Law.
(b) All the Remedial Work shall be performed by contractors, and under
the supervision of a consulting engineer, each approved in advance by Mortgagee,
which approval shall not be unreasonably withheld. All costs and expenses of the
Remedial Work and Mortgagee's monitoring or review of the Remedial Work
(including reasonable attorneys' fees) shall be paid by Mortgagor. If Mortgagor
does not timely commence and diligently prosecute to completion the Remedial
Work, Mortgagee may (but shall not be obligated to) cause the Remedial Work to
be performed. Mortgagor agrees to bear and shall pay or reimburse Mortgagee on
demand for all advances and expenses (including reasonable attorneys' fees)
relating to or incurred by Mortgagee in connection with monitoring, reviewing or
performing any Remedial Work.
(c) Except with Mortgagee's prior consent, Mortgagor shall not
commence any Remedial Work or enter into any settlement agreement, consent
decree or other compromise relating to any Hazardous Substances or Environmental
Laws which might, in Mortgagee's judgment, impair the value of Mortgagee's
security hereunder. Mortgagee's prior consent shall not be required, however, if
the presence or threatened presence of Hazardous Substances on, under or about
the Premises poses an immediate threat to the health, safety or welfare of any
person or is of such a nature that an immediate remedial response is necessary,
and it is not possible to obtain Mortgagee's prior consent. In such event
Mortgagor shall notify Mortgagee as soon as practicable of any action taken.
16
3.3. Inspection. Mortgagor shall promptly upon the request of any of the
----------
Indemnified Parties at any time and from time to time: (i) execute such further
instruments and deliver such further documents as are reasonably necessary to
confirm and enforce the representations and indemnification provided herein;
(ii) so long as any portion of the Loan remains unpaid and Mortgagee has
reasonable belief that conditions exist that would trigger the indemnification
provision of this Article III, Mortgagor, at its sole cost and expense, shall
provide Mortgagee with an environmental site assessment or environmental audit
report, or an update of such an assessment or report, all in scope, form and
content reasonably satisfactory to Mortgagee; and (iii) so long as any portion
of the Loan remains unpaid and Mortgagee has reasonable belief that conditions
exist that would trigger the indemnification provision of this Article III allow
access to the Lender or its assignee to enter and perform any environmental
studies or site assessments.
IV.
EVENTS OF DEFAULT AND REMEDIES
4.1. Events of Default. Upon the occurrence of an Event of Default
-----------------
hereunder, the whole of the principal sum, interest accrued thereon, and any and
all Indebtedness shall become due and payable forthwith at the option of
Mortgagee. Each of the following events shall be deemed to be an "Event of
Default" hereunder: (a) failure to pay within three (3) business days when due
any principal, interest or other amount due with respect to any and all
Indebtedness including, without limitation, the indebtedness evidenced by the
Note; (b) failure to make any deposit with Mortgagee within three (3) business
days as required under paragraph 8 of the Note; or (c) the occurrence of any
event or circumstance constituting an Event of Default under any of the
Financing Agreements including, without limitation, the Note, or this Mortgage;
or (d) failure to observe or perform any other term, covenant or condition by
Mortgagor, or any guarantor of the Indebtedness under this Mortgage, the Note or
any of the Financing Agreements and said failure is not remedied within fifteen
(15) days after written notice by Mortgagee to Mortgagor, or if such failure is
of such a nature that it cannot with due diligence be completely remedied within
such fifteen (15) day period and Mortgagor shall not commence to cure within
said period of fifteen (15) days, or shall not thereafter diligently prosecute
to completion, all steps necessary to remedy such failure, for an aggregate
period not to exceed sixty (60) days after written notice by Mortgagee to
Mortgagor of such failure; or (e) the failure of the Mortgagor to pay the
outstanding balance of the Note within sixty (60) days following demand by
Lender upon the event of the passage of any law, federal, state or local, the
rendition of a decision of any court, in any way changing or affecting the
mortgage debt or lessening the net income to Mortgagee on the Indebtedness; or
(f) the actual waste, removal or demolition of, or structural alteration to, any
part of the Mortgaged Property except as specifically permitted herein; or (g)
assignment by Mortgagor of the whole or any part of the rents, income or profits
arising from the Mortgaged Property without prior written consent of Mortgagee;
or (h) any default under any other indebtedness or obligation, owed to the
Mortgagee by Mortgagor or any guarantor of the Indebtedness beyond any
applicable notice and cure period; or (i) Mortgagor shall change ownership,
management, identity or cease to legally exist, or be deprived of title,
possession or control of the Mortgaged Property by process or operation of law
or order of any court, or if any foreclosure proceeding shall be instituted on
any lien or mortgage of any kind affecting the Mortgaged Property; or (j) the
filing by or against Mortgagor or any guarantor of the Indebtedness of any
petition, arrangement, reorganization, or the like under any insolvency or
bankruptcy law, or the adjudication of them or any of them as a bankrupt, or the
making of an assignment for the benefit of the creditors of Mortgagor or any
such guarantor, or the appointment of a receiver for any part of any of their
respective properties and the failure to dismiss the same within ninety (90)
days or the admission in writing by the Mortgagor or any guarantor of the
inability to pay debts are they become due; or (k) any sale, conveyance, lease,
transfer or encumbrance of any right, title or interest in the Mortgaged
Property which is not permitted in this Mortgage or the
17
Financing Agreements; or (l) any amendment or modification of Mortgagor's
charter or bylaws which have a material adverse affect on the Mortgaged
Property; or (m) any merger or consolidation of Mortgagor with another entity or
change in the ownership, control or management of Mortgagor or any guarantor
which results in the failure of Guarantor to control Mortgagor; or (n) any
material representation, warranty or disclosure made by Mortgagor or any
guarantor made herein or in any of the other Financing Agreements, or any
application, correspondence, communication, statement, certificate or other data
furnished by Mortgagor in connection with the loan, is determined by Mortgagee
to have been false or misleading as of the date as of when made; or (o) a
default occurs under any mortgage which is prior or subordinate to the lien of
this Mortgage or the grantee under any such prior or subordinate mortgagee
commences a foreclosure action in connection with said mortgage, or (p) if
Mortgagee in its reasonable judgment determines that the likelihood of payment
of the Indebtedness or performance of the obligations secured by this Mortgage
is threatened by reason of a material adverse change in the financial condition
or credit standing of Mortgagor or any guarantor or other obligor for the
payment of the Note, including, without limitation, the commencement of any
litigation or proceeding and, within ten (10) days after Mortgagee gives notice
of such determination to Mortgagor, Mortgagor or any such guarantor or other
obligor fails to either provide Mortgagee either with additional collateral, in
form and substance satisfactory to Mortgagee, in Mortgagee's sole discretion, to
secure the Indebtedness or repay a sufficient portion of the Indebtedness in
order to alleviate such concern, as determined by Mortgagee; or (q) Mortgagor
fails to proceed diligently with the construction of contemplated improvements
set forth in the Approved Plans, and said failure is not remedied within fifteen
(15) days after written notice by Mortgagee to Mortgagor, or if such failure is
of such a nature that it cannot with due diligence be completely remedied within
such fifteen (15) day period and Mortgagor shall not commence to cure within
said period of fifteen (15) days, or shall not thereafter diligently prosecute
to completion, all steps necessary to remedy such failure, for an aggregate
period not to exceed sixty (60) days after written notice by Mortgagee to
Mortgagor of such failure; or (r) Mortgagor uses the loan proceeds from the Loan
for any purpose other than for construction of the contemplated improvements and
those expenses, charges, and costs relating thereto and contained in the
construction budget approved by Mortgagee; (s) failure by Mortgagor to comply
with any construction contract or failure to complete construction on or before
the completion date as herein described or in material accordance with the
Approved Plans, and such failure is not remedied within fifteen (15) days after
written notice by Mortgagee to Mortgagor, or if such failure is of such a nature
that it cannot with due diligence be completely remedied within such fifteen
(15) day period and Mortgagor shall not commence to cure within said period of
fifteen (15) days, or shall not thereafter diligently prosecute to completion,
all steps necessary to remedy such failure, for an aggregate period not to
exceed sixty (60) days after written notice by Mortgagee to Mortgagor of such
failure; or (t) if Mortgagor shall cease to exist.
4.2. Remedies Generally. If an Event of Default shall occur, in addition to
------------------
all other rights of Mortgagee as provided herein or by law, Mortgagee may, at
its sole election, also exercise any or all of the following rights, remedies
and recourses:
(a) Acceleration: Declare the principal balance on the Note, the
------------
accrued interest and any other accrued but unpaid portion of the Indebtedness to
be immediately due and payable, without notice, presentment, protest, demand or
action of any nature whatsoever (each of which hereby is expressly waived by
Mortgagor), whereupon the same shall become immediately due and payable, time
being of the essence in this Mortgage.
(b) Termination of License and/or Entry of Mortgaged Property: Demand
---------------------------------------------------------
that Mortgagor shall forthwith surrender to Mortgagee actual possession of the
Mortgaged Property, and/or
18
terminate the license granted Mortgagor to receive the Rents and, to the extent
permitted by law, enter and take possession of all of the Mortgaged Property
without the appointment of a receiver, or an application therefor, and exclude
Mortgagor and its agents and employees wholly therefrom, and have joint access
with Mortgagor to the books, papers and accounts of Mortgagor.
If Mortgagor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after such demand by Mortgagee, Mortgagee
may obtain a judgment or decree conferring upon Mortgagee the right to immediate
possession or requiring Mortgagor to deliver immediate possession of the
Mortgaged Property to Mortgagee. Mortgagor will pay to Mortgagee, upon demand,
all expenses of obtaining such judgment or decree, including compensation to
Mortgagee, its attorneys and agents, and all such expenses and compensation
shall, until paid, become part of the Indebtedness and shall be secured by this
Mortgage.
Upon every such entering upon (1) undertake all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property, (2) insure or keep the Mortgaged
Property insured, (3) manage and operate the Mortgaged Property and exercise all
the rights and powers of Mortgagor to the same extent as Mortgagor could in its
own name or otherwise act with respect to the same, and (4) enter into any and
all agreements with respect to the exercise by others of any of the powers
herein granted to Mortgagee, all as Mortgagee from time to time may determine to
be in its best interest. Whether or not Mortgagee has obtained possession of the
Mortgaged Property, upon the termination of Mortgagor's license to receive the
Rents, Mortgagee may collect, xxx for and receive all the Rents and other
issues, profits and revenues from the Mortgaged Property, including those past
due as well as those accruing thereafter. Anything in this Mortgage to the
contrary notwithstanding, subject to the provisions of any attornment and
non-disturbance agreement entered into by and between Mortgagee and any lessee,
Mortgagee shall not be obligated to discharge or perform the duties of the
landlord to any tenant or lessee or incur any liability as the result of any
exercise by Mortgagee of its rights under this Mortgage, and Mortgagee shall be
liable to account only for the Rents actually received by Mortgagee.
Whether or not Mortgagee takes possession of the Mortgaged Property,
Mortgagee may, but shall not be obligated to, make, modify, enforce, cancel or
accept surrender of any Lease, remove and evict any lessee, increase or decrease
Rents under any Lease, appear in and defend any action or proceeding purporting
to affect the Mortgaged Property, and perform and discharge each and every
obligation, covenant and agreement of Mortgagor contained in any Lease. Neither
the entering upon and taking possession of the Mortgaged Property, nor the
collection of any Rents and the application thereof as aforesaid, shall cure or
waive any Event of Default theretofore or thereafter occurring, or affect any
notice of an Event of Default hereunder or invalidate any act done pursuant to
any such notice. Mortgagee shall not be liable to Mortgagor, anyone claiming
under or through Mortgagor, or anyone having an interest in the Mortgaged
Property by reason of anything done or left undone by Mortgagee hereunder.
Nothing contained in this Section shall require Mortgagee to incur any expense
or do any act. If the Rents are not sufficient to meet the costs of taking
control of and managing the Mortgaged Property and/or collecting the Rents, any
funds expended by Mortgagee for such purposes shall become Indebtedness of
Mortgagor to Mortgagee secured by this Mortgage. Such amounts, together with
interest at the default rate under the Note and attorneys' fees, if applicable,
shall be immediately due and payable. Notwithstanding Mortgagee's continuance in
possession or receipt and application of Rents, Mortgagee shall be entitled to
exercise every right provided for in this Mortgage or by law upon or after the
occurrence of an Event of Default. Any of the actions referred to in this
Section may be taken by
19
Mortgagee at such time as Mortgagee is so entitled, to the extent permitted by
law, without regard to the adequacy of any security for the Indebtedness hereby
secured.
(c) Proofs of Claim. In the case of any receivership, insolvency,
---------------
bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting Mortgagor, its creditors or its property, Mortgagee, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Mortgagee allowed in such proceedings for the entire amount of the Indebtedness
at the date of the institution of such proceedings and for any additional amount
of the Indebtedness after such date.
4.3. No Waiver, etc. Any failure by Mortgagee to insist upon the strict
--------------
performance by Mortgagor or any guarantor of any of the terms and provisions
hereof shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor or any guarantor,
of any and all of the terms and provisions of this Mortgage, the Note to be
performed by Mortgagor or any guarantor; and neither Mortgagor, nor any
guarantor nor any other person now or hereafter obligated for the payment of the
whole or any part of the Indebtedness shall be relieved of such obligation by
reason of the failure of Mortgagee to comply with any request of Mortgagor, any
guarantor or of any other person so obligated to take action to foreclose this
Mortgage or otherwise enforce any of the provisions of this Mortgage or of any
obligation secured by this Mortgage, or by reason of the release, regardless of
consideration, of the whole or any part of the security held for the
Indebtedness or of any obligor for such Indebtedness, or by reason of any
agreement or stipulation between any subsequent owner or owners of the Mortgaged
Property and Mortgagee extending the time of payment or modifying the terms of
the Note or this Mortgage without first having obtained the consent of Mortgagor
or such other person, and in the latter event, Mortgagor and all such other
persons shall continue to be liable to make such payments according to the terms
of any such agreement of extension or modification unless expressly released and
discharged in writing by Mortgagee; and, regardless of consideration, and
without the necessity for any notice to or consent by the holder of any
subordinate lien on the Premises, Mortgagee may release the obligation of anyone
at any time liable for any of the Indebtedness or any part of the security held
for said Indebtedness and may extend the time of payment or otherwise modify the
terms of the Note and/or this Mortgage without, as to the security or the
remainder thereof, in any way impairing or affecting the lien of this Mortgage,
or the priority of such lien, as security for the payment of said Indebtedness
as it may be so extended or modified over any subordinate lien; and the holder
of any subordinate lien shall have no right to terminate any Lease whether or
not such Lease shall be subordinate to this Mortgage; and Mortgagee may resort
for the payment of the Indebtedness to any other security therefor, held by
Mortgagee in such order and manner as Mortgagee may elect.
4.4. Marshalling. Mortgagee shall not be compelled to release, or be
-----------
prevented from foreclosing or enforcing this Mortgage upon all or any part of
the Mortgaged Property, unless the entire Indebtedness and all items hereby
secured shall be paid in lawful money as aforesaid; and shall not be required to
accept any part or parts of the Mortgaged Property, as distinguished from the
entire whole thereof, as payment of or upon the Indebtedness to the extent of
the value of such part or parts; and shall not be compelled to accept or allow
any apportionment of the Indebtedness to or among any separate parts of the
Mortgaged Property. In case of a foreclosure sale, the Mortgaged Property may be
sold in one parcel and as an entirety or in such parcels, manner or order as
Mortgagee in its sole discretion may elect.
20
4.5. Interest After Judgment. Should Mortgagee herein obtain a judgment
-----------------------
against Mortgagor, interest shall accrue on said judgment at the default
interest rate set forth in the Note or as provided by statute, whichever rate
shall be greater at that time.
4.6. Rights and Remedies Cumulative. To the extent permitted by law, the
------------------------------
rights and remedies provided for in this Mortgage, or which Mortgagee may have
otherwise, at law or in equity (including, but not limited to, the right to
damages by reason of the failure of Mortgagor to keep, observe and perform any
of the covenants or agreements contained in this Mortgage), shall be distinct,
separate and cumulative, and shall not be deemed to be inconsistent with each
other, and none of them, whether or not exercised by Mortgagee, shall be deemed
to be in exclusion of any other, and any two or more of all such rights and
remedies may be exercised at the same time. Further, Mortgagee may resort for
the payment of the Indebtedness to its several securities therefor in such order
or manner as it may think fit. If Mortgagor has given Mortgagee one or more
mortgages other than this Mortgage with respect to the Mortgaged Property or any
portion thereof, then all such mortgages, and all rights and remedies provided
for in all such mortgages shall remain distinct and separate and none of them
shall merge or be merged with this Mortgage, or any other mortgages.
4.7. Foreclosure Expenses. If this Mortgage shall be foreclosed, there
--------------------
shall be included in the computation of the Indebtedness the amount or the fee
for the services of the attorneys retained by Mortgagee in the foreclosure
action or proceeding, as well as any and all disbursements, costs and other
expenses incurred directly or indirectly by Mortgagee in connection with such
foreclosure action or proceeding, including, without limitation, appraisal fees.
4.8. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY WAIVES TRIAL BY JURY IN ANY
--------------------
COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH
OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THIS AGREEMENT IS A
PART AND/OR THE ENFORCEMENT OF ANY OF MORTGAGEE'S RIGHTS.
4.9. PREJUDEMENT REMEDY WAIVER. MORTGAGOR HEREBY REPRESENTS, COVENANTS AND
-------------------------
AGREES THAT THE PROCEEDS OF THE LOAN SHALL BE USED FOR GENERAL COMMERCIAL
PURPOSES AND THAT THE TRANSACTION OF WHICH THIS MORTGAGE IS A PART IS A
"COMMERCIAL TRANSACTION" AS DEFINED BY THE STATUTES OF THE STATE OF CONNECTICUT.
MORTGAGOR 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 MORTGAGEE MAY EMPLOY TO ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER. MORE
SPECIFICALLY, MORTGAGOR ACKNOWLEDGES THAT MORTGAGEE'S ATTORNEY MAY, PURSUANT TO
CONNECTICUT GENERAL STATUTES, SECTION 52-278f, ISSUE A WRIT FOR A PREJUDGMENT
REMEDY WITHOUT SECURING A COURT ORDER. MORTGAGOR ACKNOWLEDGES AND RESERVES ITS
RIGHT TO NOTICE AND A HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR
PREJUDGMENT REMEDY BY MORTGAGEE'S ATTORNEY, AND MORTGAGEE ACKNOWLEDGES
MORTGAGOR'S RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE OF SAID WRIT.
MORTGAGOR FURTHER HEREBY WAIVES ANY REQUIREMENT OR OBLIGATION OF MORTGAGEE TO
POST A BOND OR OTHER SECURITY IN CONNECTION WITH ANY PREJUDGMENT REMEDY
21
OBTAINED BY MORTGAGEE AND WAIVES ANY OBJECTIONS TO ANY PREJUDGMENT REMEDY
OBTAINED BY MORTGAGEE BASED ON ANY OFFSETS, CLAIMS, DEFENSES OR COUNTERCLAIMS OF
MORTGAGOR OR ANY OTHER OBLIGATED PARTY TO ANY ACTION BROUGHT BY MORTGAGEE.
MORTGAGOR 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.
V.
MISCELLANEOUS PROVISIONS
5.1. Miscellaneous Provisions.
------------------------
(a) Notices. A demand upon or notice to Mortgagor hereunder shall be
-------
deemed sufficient and commercially reasonable notice and shall be effective if
deposited if sent by facsimile transmission or by a recognized overnight courier
addressed to Mortgagor at the following address: 00 Xxxxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxxxx 00000, Attention: Chief Financial Officer.
(b) Interpretation. Mortgagor and guarantor shall observe, perform or
--------------
comply with all obligations, conditions and covenants contained herein and in
the Financing Agreements. The term "Financing Agreements," as used herein, shall
mean and refer to any and all agreements evidencing, securing or relating in any
way to the past, present or future Indebtedness or obligations or liabilities of
every kind, nature and description of Mortgagor and guarantor owing to
Mortgagee, including, but not limited to, this Mortgage and the Note, both
executed of even date herewith, any guarantee agreements and such other
agreements as are executed by Mortgagor or guarantor in connection with the
Loan, between the Mortgagor and the Mortgagee and any modification,
supplementation or amendment thereof made from time to time. Wherever used in
this Mortgage, unless the context clearly indicates a contrary intent or unless
otherwise specifically provided herein, the word "Mortgagor" shall include "any
subsequent owner or owners of the Mortgaged Property or any part thereof;" the
word "Mortgagee" shall include "any subsequent holder or holders of this
Mortgage or the Note;" the word "Guarantor" shall mean Proton Energy Systems,
Inc., a Connecticut corporation, and any present of future guarantor of the Note
and the words "Loan," shall mean "any and all Indebtedness of Mortgagor to
Mortgagee as evidenced by the Note and/or secured by this Mortgage". Unless
otherwise provided herein, plural or singular shall include each other, and
pronouns in any gender shall be construed as masculine, feminine or neuter as
the context requires.
(c) Required Notification.
---------------------
(i) Mortgagor shall immediately give notice to Mortgagee of any
default under the terms of any Financing Agreements:
(ii) Mortgagor shall also promptly provide notice to Mortgagee
of:
(1) any proceeding, investigation or inquiry commenced by
any governmental authority with respect to the presence of any Hazardous
Substance on, under or about the Premises or the migration of any Hazardous
Substance to or from any adjoining property;
22
(2) all written claims made or threatened by any person or
entity against Mortgagor, any other party occupying the Premises or any portion
thereof, or the Premises, relating to any loss or injury allegedly resulting
from any Hazardous Substance; and
(3) the discovery by Mortgagor of any occurrence or
condition on any real property adjoining or in the vicinity of the Premises
which might cause the Premises or any portion thereof to be subject to any
restriction on ownership, occupancy, transferability, or use under any
Environmental Law.
(d) Intentionally deleted.
(e) Invalidity. If any term or provision of this Mortgage or the
----------
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Mortgage or the application of such term
or provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Mortgage shall be valid and enforceable to the fullest extent
permitted by law.
(f) Captions. The captions or section headings used in this Mortgage
--------
are for convenience only and of no substance or significance, and shall not be
used to interpret, modify or affect in any way the covenants and agreements
herein contained.
(g) Governing Law and Binding Effect. This Mortgage and the Note shall
--------------------------------
be governed by and construed in accordance with the laws of the State of
Connecticut. All grants, covenants, agreements and other provisions herein
contained shall run with the land, and shall be binding upon and inure to the
benefit of the respective heirs, legal representatives, successors and assigns
of Mortgagor and Mortgagee.
5.2. Financial Information. Mortgagor shall cause Guarantor to deliver to
---------------------
Mortgagee consolidated financial statements of Mortgagor and Guarantor
reflecting such financial information and condition, assets, liabilities and net
worth of the Borrower and Guarantor satisfactory to Mortgagee. Mortgagor and
Guarantor covenant and agree to provide Mortgagee with current, signed annual
balance sheet and other financial statements, including cash flow statements and
information concerning contingent liabilities as required by Mortgagee.
Guarantor shall provide within one hundred twenty (120) days of each fiscal year
end an audited financial statement certified by Guarantor and such other
publicly accessible financial information throughout the term of the Loan as may
be required by Mortgagee in form and substance required by Mortgagee. Guarantor
shall maintain full and accurate books of accounts and other records reflecting
the results of its operations and shall furnish to Mortgagee on or before
forty-five (45) days after the end of each calendar quarter copies of its
quarterly 10-Q filings with the Securities and Exchange Commission.
5.3. Cross-Default. A default under the Loan shall constitute a default
-------------
under all other obligations and loans of the Mortgagor and Guarantor, if any, to
the Mortgagee and a default under any other obligation or loan by the Mortgagee
in favor of the Mortgagor or Guarantor shall constitute a default under the Loan
and the Note.
5.4. Loan to Value. Upon substantial completion of the Mortgaged Premises
-------------
in accordance with the terms hereof, the quotient of the outstanding
indebtedness of the Note divided by the fair market value of the Mortgaged
Property (based upon an "as is" appraisal to be obtained by Mortgagee
23
subsequent to the acquisition of the Mortgaged Property by Mortgagor but before
the disbursement of any construction advances under the Note) shall not exceed
seventy-five percent (75%), taking into account the then principal balance of
all indebtedness encumbering the Mortgaged Property. In the event that at any
time the loan-to-value ratio exceeds seventy-five percent (75%), then Mortgagor
and/or Guarantor shall within thirty (30) days of written notice from Mortgagee
and at Mortgagee's election, either pay down the Loan in order to bring the
loan-to-value ratio within compliance or grant Mortgagee other collateral in an
amount as determined by Mortgagee and acceptable to Mortgagee in order to comply
with said loan-to-value ratio.
5.5. Maintenance of Operating Accounts. Mortgagor shall maintain with
---------------------------------
Mortgagee during the term of the Loan all bank and operating accounts which
relate in any way, including disbursement proceeds, to the Mortgaged Property.
5.6. Open-End Mortgage. This is an "open-end" mortgage and the holder
-----------------
hereof shall have all the rights, powers and protection to which the holder of
any open-end mortgage is entitled under Connecticut law. It is further agreed
that upon request of Mortgagor, Mortgagee may hereafter, at its option, at any
time before full payment of this Mortgage, make further advances to Mortgagor in
amounts and at such rates of interest as Mortgagee shall determine, and every
such further advance, with interest, shall be secured by this Mortgage and
evidenced by an additional note given by Mortgagor, provided, that the amount of
the principal secured by this Mortgage and remaining unpaid shall at no time
exceed the original principal sum secured hereby and provided that the time of
repayment of such advancement shall not extend the time of repayment beyond the
maturity of the original debt hereby secured.
NOW, THEREFORE, if (i) the Note, (ii) the Indebtedness as aforesaid,
including, without limitation, all future advances under the Note (iii) any
additional notes which in accordance with the provisions of Section 5.6 hereof
shall be secured hereby, and (iv) any extensions or renewals of any of the
foregoing, shall be well and truly paid according to their tenor, then this deed
shall become null and void; otherwise to remain in full force and effect.
24
IN WITNESS WHEREOF, Mortgagor has hereunto caused this Mortgage Deed to be
executed this day of December 2001.
-----
Signed, and Delivered
in the Presence of:
TECHNOLOGY DRIVE LLC
------------------------------------ -------------------------------------
Name: By:
Its:
------------------------------------
Name:
00
XXXXX XX XXXXXXXXXXX )
) ss.:
COUNTY OF )
Before me, the undersigned, this day of December, 2001, personally
----
appeared , who acknowledged himself to be the Managing Member of
--------------
TECHNOLOGY DRIVE LLC., a Connecticut limited liability company, and that he, as
such Managing Member, being authorized to do so, executed the foregoing
instrument for the purposes therein contained and his free act and deed
individually, the free act and deed of TECHNOLOGY DRIVE LLC and as the free act
and deed of the limited liability company.
In Witness Whereof, I hereunto set my hand.
-----------------------------------
Notary Public
My Commission Expires:
Commissioner of the Superior Court
26
SCHEDULE "A"
------------
LEGAL DESCRIPTION OF PREMISES
The land referred to in this Commitment is described as follows:
All that certain piece or parcel of land located in the Town of Wallingford,
County of New Haven and State of Connecticut being shown and designated as "LOT
1 Total Lot Area = 1,952,298 S.F. +/-44.82 AC. +/- 109,390 S.F. +/- Inland
Wetland" on a certain map entitled, "Resubdivision Plan, Property of WE
Wallingford Land LLC, Research Parkway, Xxxxxx Avenue & Technology Drive,
Wallingford, Connecticut Date: June 7, 2001, Scale: 1" = 100' REVISIONS: 7201
REV. COMMENTS, 7/23/01. APPROVAL LETTER" made by Xxxxx XxXxxxxx Xxxx Xxxxxx &
Associates, which map was filed in the Wallingford Town Clerk's Office on August
15, 2001 as Map No. 4716.
Together with the benefits set forth in a certain deed from Research Park, Inc.
and Research Center, Inc. to the Connecticut Light & Power Company, dated
December 30, 1976 and recorded in Volume 449 at page 204 of the Wallingford Land
Records, as corrected and supplemented by a Corrective-Supplemental deed dated
April 18, 1980 and recorded in Volume 498 at Page 688 of the Wallingford Land
Records.
SCHEDULE "B"
------------
PERMITTED ENCUMBRANCES
1. Taxes on the List of October 1, 2000 due and payable July 1, 2001 and
January 1, 2002 in the total amount of $729.02. First half in the amount of
$364.51, paid. (Account #209001007M). Tax lot has not been apportioned for
the current List year.
2. Taxes on the List of October 1, 2001, a lien not yet due and payable.
3. Charges as may become due and payable to the Water Pollution Control
Authority of the Town of Wallingford. No charges are currently due.
4. Taxes which may become due and payable to the Town of Wallingford pursuant
to Section 12-53a of the Connecticut General Statutes.
5. Declaration of Restrictive Covenants made by Medway Associates dated June
30, 1981 and recorded in Volume 507 at Page 94, as re-recorded by
instrument dated September 1, 1981 and recorded in Volume 508 at Page 74
and as modified by a certain Designation Agreement made by Medway
Associates aka Medway Associates Limited Partnership and WE Wallingford
Lane, L.L.C., dated as of March 20, 2001 and recorded September 12, 2001 in
Volume 1000 at Page 819 of the Wallingford Land Records.
6. Limitations as to the benefits set forth in a deed from Research Park Inc.,
Research Center, Inc. to The Connecticut Light & Power Company dated
December 30, 1976 and recorded in Volume 449 at Page 204 of the Wallingford
Land Records, as corrected and supplemented by a Corrective-Supplemental
deed dated April 18, 1980, recorded April 23, 1980 in Volume 498 at Page
688 of the Wallingford Land Records.
7. Terms of a certain agreement by and between Research Park Inc., Research
Center, Inc. and Medway Associates dated April 18, 1980 and recorded in
Volume 498 at Page 654 of the Wallingford Land Records.
8. Rights and easements from Research Park Inc. and Research Center, Inc. to
Connecticut Light and Power Company dated April 18, 1980 and recorded in
Volume 498 at Page 682 of the Wallingford Land Records.
9. 25' Electrical easement set forth in a deed to the Town of Wallingford
dated June 9, 1983 and recorded in Volume 540 at Page 818 of the
Wallingford Land Records.
10. Drainage and electrical easements as set forth in a deed to the Town of
Wallingford dated December 6, 1996 and recorded in Volume 853 at Page 755
of Wallingford Land Records.
11. Building setback lines as shown on filed Map No. 4716, dated June 7, 2001.
12. Drainage easement as shown on filed Map No. 4173 and conveyed to the Town
of Wallingford by deed from Medway Associates, dated January 7, 1986 and
recorded February 26, 1986 in Volume 564 at Page 15.
13. Survey made by Xxxxx XxXxxxxx Xxxx Xxxxxx & Associates, Inc., dated July
18, 2001, and last revised to November 15, 2001 shows the following:
1. Sixty foot right of way for possible future roadway located at
the northerly side of the cul de sac of Technology Drive;
2. Rights of CL&P Co. in and to the Power Line Access Drive crossing
the premises from Research Parkway easterly through the insured
premises and continuing southerly and easterly through the 300
foot CL&P easement, which easement was recorded in Volume 498 at
Page 682 of the Wallingford Land Records.
3. Drainage swale located on premises now or formerly of Xxxxx X.
Xxxxxxxx & Xxxxxxxx X. Xxxxxxxx extends across and drains through
premises herein.
