EXHIBIT 10.4
Please return to:
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Xxxxx X. Xxxxxxx, Esq.
Xxxx Xxxxx & Xxxxxxx LLP
One Landmark Sq, 14th Fl.
Xxxxxxxx, XX 00000-0000
AMENDED AND RESTATED
STATUTORY FORM MORTGAGE DEED
XXXXXX X. XXXXXXXX ("Xxxxxxxx") and his wife, XXXXX X. XXXXXXXX, having
their principal residence at 00 Xxx Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000
(together, "Grantor"), to secure payment of One Hundred Ten Thousand and 00/100
Dollars ($110,000.00) under a certain Amended and Restated Secured Promissory
Note dated the same day as this mortgage given by Xxxxxxxx to Grantee and
maturing three (3) years (or less, upon certain circumstances set forth therein)
from the date hereof (the "Note"), hereby grants to MEMRY CORPORATION, a
Delaware corporation, having an office at 0 Xxxxxxxxx Xxxxxxxxx, Xxxxxx, XX
00000, its heirs, administrators, successors and assigns (together, "Grantee"),
a mortgage with MORTGAGE COVENANTS on all that certain piece or parcel of land,
with the buildings and improvements thereon standing, situated in the Town of
Ridgefield, County of Fairfield, State of Connecticut, known as 00 Xxx Xxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx, and more particularly described on Schedule A
attached hereto and made a part hereof (together with all buildings and other
improvements thereon and appurtenances thereto, the "Mortgaged Premises").
This mortgage amends and restates that certain Statutory Form Mortgage Deed
dated August 25, 2000 (the "Original Mortgage") made by Grantor to Grantee,
recorded on or about that date in the Town of Ridgefield, County of Fairfield,
State of Connecticut, securing payment of that certain Promissory Note dated as
of the same date (the "Original Note") (which Original Note is being amended and
reinstated simultaneously herewith by the Note).
The Mortgaged Premises are conveyed subject to any and all provisions of
any ordinance, municipal regulation or public or private law, taxes not yet due
and payable, and matters of record prior to this instrument, including a prior
mortgage granted by Grantor to Boston Safe Deposit and Trust Company (the "Prior
Mortgage") in the original principal amount of $425,000.00 (the "Prior Amount"),
which Prior Mortgage was recorded on or before the date of the Original
Mortgage.
This mortgage is made upon the STATUTORY CONDITION, as well as upon the
following conditions:
1. Grantor shall pay, when due, all taxes, assessments and insurance
premiums on the Mortgaged Premises.
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2. Grantor shall keep the Mortgaged Premises in good repair and free
of mechanics liens.
3. Grantor shall keep the Mortgaged Premises insured against damage by
fire and the perils included in a standard extended coverage endorsement in
sufficient amounts to prevent the imposition of a co-insurance penalty, but
in no event less than the balance due on the Note. All such policies shall
name the Grantee in a standard mortgagee endorsement.
4. Grantor shall not demolish or substantially alter any building or
improvement on the Mortgaged Premises without the Grantee's written
permission.
5. Unless waived by the Grantee, Grantor shall pay the entire unpaid
balance due under the Note:
(a) If Grantor shall breach any of the conditions contained in
this mortgage or in the Note.
(b) If title to the Mortgaged Premises shall vest in anyone other
than the Grantor or if they shall be leased for a term greater than
one year.
(c) If the Grantor shall be adjudicated a debtor under the
Bankruptcy Code, or makes a general assignment for the benefit of his,
her or their creditors.
6. Grantee shall be entitled to recover its reasonable expenses and
attorneys fees incurred in any action to foreclose or protect its right
under this mortgage, to collect the Note, or if Grantee is made a party to
any legal proceeding by virtue of it being the holder of this mortgage.
7. All the terms and conditions of the Note are incorporated herein by
reference as if fully set forth herein.
8. Whenever the context of this instrument requires, references to the
singular shall include the plural, references to the plural shall include
the singular, and references to the masculine or feminine gender include
the opposite or neuter gender.
9. This mortgage is subordinate of record to the Prior Mortgage and,
in the event of a refinancing of the debt secured by the Prior Mortgage
resulting in the release of the Prior Mortgage and the filing of a new
mortgage (the "New Senior Mortgage"), this mortgage shall be automatically
subordinate to the New Senior Mortgage if and only if the principal amount
of the debt secured by the New Senior Mortgage then and at any time
thereafter is equal to or less than the Prior Amount. This mortgage is not
and shall not at any time be subordinate to any other mortgage or lien for
borrowed money.
[Remainder of Page Intentionally Left Blank]
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This Mortgage Deed is signed this 28th day of January, 2002.
GRANTORS:
WITNESSED BY:
/s/ Xxxxxxx X. Kavanauch /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Kavanauch XXXXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
WITNESSED BY:
/s/ Xxxxxxx X. Kavanauch /s/ Xxxxx X. Xxxxxxxx
-------------------------------- ---------------------------------
Name: Xxxxxxx X. Kavanauch XXXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
STATE OF CONNECTICUT )
) ss: Ridgefield, Connecticut
COUNTY OF FAIRFIELD )
On this 28 day of January, 2002, the undersigned officer, personally
appeared XXXXXX X. XXXXXXXX, signer and sealer of the foregoing instrument,
known to me (or satisfactorily proven to be the person whose name is subscribed
to within said document) and acknowledged the same to be his free act and deed,
before me.
/s/ Xxxxxx X. Xxxxxxxx Xx.
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Commissioner of the Superior Court
Notary Public
My Commission Expires: August 31, 2002
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STATE OF CONNECTICUT )
) ss: Ridgefield
COUNTY OF )
On this 28 day of January, 2002, the undersigned officer, personally
appeared XXXXX X. XXXXXXXX, signer and sealer of the foregoing instrument, known
to me (or satisfactorily proven to be the person whose name is subscribed to
within said document) and acknowledged the same to be her free act and deed,
before me.
/s/ Xxxxxx X. Xxxxxxxx Xx.
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Commissioner of the Superior Court
Notary Public
My Commission Expires: August 31, 2002
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SCHEDULE A INTENTIONALLY OMITTED
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