212818
EXHIBIT 10.4
MORTGAGE DEED
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AFC CABLE SYSTEMS, INC., a Delaware corporation (hereinafter called
"Mortgagor"), for consideration paid to it by FLEET NATIONAL BANK, a national
banking association organized and existing under the laws of the United States
of America, with its principal office located in the City of Providence, Rhode
Island (hereinafter called "Mortgagee"), hereby grants to Mortgagee, with
MORTGAGE COVENANTS, for breach of which covenants and any other covenants
contained herein Mortgagee shall have the STATUTORY POWER OF SALE, and upon the
STATUTORY CONDITION, the real estate described on Exhibit A hereto attached
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together with all of the following (all of which, together with said real
estate, is herein called the "Mortgaged Property"):
(a) All that certain piece or parcel of land, with the buildings and
improvements now or hereafter placed thereon, located on Xxxxxxxx Boulevard in
the City of New Bedford, County of Bristol, and Commonwealth of Massachusetts
(hereinafter called the "Premises") and more particularly bounded and described
in said Exhibit A.
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(b) All the right, title and interest of Mortgagor, now or hereafter,
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 all and singular the privileges,
tenements, hereditaments, licenses, easements, rights, royalties, mineral, oil
and gas rights, rents, issues and profits, water, water rights, water stock, and
appurtenances, reversion or reversions and remainder or remainders belonging or
in any way appertaining to the Premises.
(c) All the right, title and interest of Mortgagor in or to all
fixtures 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
(hereinafter collectively referred to as the "Fixtures"). The Fixtures shall be
deemed to include, but without limiting the generality of the foregoing, all
heating, lighting, laundry, incineration and power equipment, engines, pipes,
pumps, tanks, motors, dynamos, boilers, fuel, conduits, switchboards, plumbing,
lifting, refrigerating, ventilating, and communications apparatus, sprinkler
system and other fire prevention and fire extinguishing apparatus, air cooling
and air conditioning apparatus, elevators, escalators, shades, blinds, awnings,
screens, storm doors, and windows, stoves, refrigerators, refrigerating plant,
attached cabinets, partitions, ducts and compressors, gas and electric fixtures,
ranges, stoves, disposals, rugs, and all right, title and interest of Mortgagor
in and to any Fixtures which may be subject to any security agreement,
conditional xxxx of sale, or chattel mortgage superior to the rights of
Mortgagee under this Mortgage, and Mortgagor agrees to execute and deliver, from
time to time, such further documents and instruments as may be requested by
Mortgagee to confirm, preserve, and enforce the lien of this Mortgage on any
Fixtures; and all the proceeds and products of any and all Fixtures, including,
but not limited to, any deposits or payments now or hereafter made thereon.
(d) All unearned premiums, accrued, accruing or to accrue under
insurance policies now or hereafter obtained by Mortgagor and all proceeds of
the conversion, voluntary or involuntary, of the Mortgaged Property, the
improvements and/or any other property or rights encumbered or conveyed hereby,
or any part thereof, into cash or liquidated claims.
(e) All awards or payments, including interest thereon, and the right
to receive the same, which may be made with respect to 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 or Mortgagor, 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 requested by Mortgagee to confirm
such assignment to Mortgagee of any such award or payment.
(f) 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.
(g) All the right, title and interest of Mortgagor in and to the
Collateral, hereinafter defined.
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 its and their own property use. Mortgagor, for itself,
its successors and assigns, covenants with Mortgagee, its successors and
assigns, that it 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 as listed in Exhibit A or as expressly provided in this
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Mortgage.
Mortgagor further warrants and covenants to defend the Mortgaged
Property to Mortgagee, its successors and assigns, against all claims and
demands made by any other party.
This Mortgage is granted by Mortgagor to secure (a) the payment and
performance by Mortgagor of all of its obligations, covenants, agreements and
conditions under that certain Reimbursement Agreement dated as of July 1, 1996
by and between Mortgagor and Mortgagee (the "Reimbursement Agreement")
pertaining to the Letter of Credit issued by Mortgagee on account of Mortgagor
to Fleet National Bank as Trustee (the "Trustee") in the face amount of
$3,624,000 (the "Letter of Credit"); and (b) the payment and performance of all
covenants, agreements and conditions referred to or contained herein (all of the
obligations in subparagraphs (a) and (b) above are herein collectively called
the "Obligations").
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In consideration of the foregoing, and in order to more fully protect
the security of this Mortgage, Mortgagor and Mortgagee represent, warrant,
covenant and agree as follows:
1. Competence to Execute Loan Documents. Mortgagor has full power and
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authority to execute and deliver the Reimbursement Agreement, this Mortgage, all
other mortgage instruments, security agreements, and all other agreements and
documents required of it, to Mortgagee, and the execution and delivery of the
same is not in violation of and will not result in default of any agreements or
understandings Mortgagor may have with any person or persons.
2. Mortgage Condition. This Mortgage is given on the express
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condition that if Mortgagor shall pay unto Mortgagee the amount of all sums due
from Mortgagor to Mortgagee, in the manner and at the time or times specified in
the Reimbursement Agreement, then Mortgagee shall discharge and release this
Mortgage. Mortgagor shall pay all costs of recordation of any discharge or any
other instrument reducing the Obligations, if any.
3. Legal Tender and Application of Payments. Mortgagor shall pay all
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the indebtedness evidenced by the Reimbursement Agreement, 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 therein. Any
payments made in accordance with the terms of this Mortgage by any person at any
time liable for the payment of the whole or any part of the sums now or
hereafter secured by this Mortgage or by any subsequent owner of the Mortgaged
Property, or by any other person whose interest in the Mortgaged Property might
be prejudiced in the event of a failure to make such payment, shall be deemed,
as between Mortgagee and all persons who at any time may be liable as aforesaid
or may own the Mortgaged Property, to have been made on behalf of all such
persons.
4. Taxes, Assessments and Other Charges. Mortgagor shall pay
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promptly, before the same shall become delinquent, all taxes, assessments, sewer
rents, water rates and other charges of any kind now or hereafter levied or
assessed upon the Mortgaged Property or any part thereof, or upon the
Reimbursement Agreement, or upon the interest of Mortgagee in the Mortgaged
Property, and any governmental or municipal charges and impositions for which
lien rights exist; and upon request of Mortgagee, Mortgagor shall exhibit to
Mortgagee receipts for the payment of all items specified in this paragraph
prior to the date when the same shall become delinquent.
5. Insurance. Mortgagor shall obtain, carry and maintain
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Comprehensive General Liability Insurance covering the Mortgaged Property in an
amount of not less than $1,000,000 bodily injury (including death) and property
damage, per occurrence. Such insurance shall be with companies approved by
Mortgagee. Mortgagor shall provide Mortgagee with a certificate of insurance
containing a provision designating Mortgagee as mortgagee and as an additional
insured party.
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Mortgagor shall also maintain insurance policies against loss by fire,
with extended coverage, and by any other casualty specified from time to time by
Mortgagee upon the buildings and improvements on the Mortgaged Property in such
company or companies as Mortgagee shall approve in an amount not less than one
hundred percent (100%) of the full insurable value of the Mortgaged Property.
If requested by Mortgagee, Mortgagor shall furnish demolition or increased cost
of reconstruction insurance in an amount satisfactory to Mortgagee. The policy
or policies of such insurance shall in case of loss be made payable to Mortgagee
as collateral security therefor, and Mortgagor hereby agrees that Mortgagee may,
upon failure of Mortgagor to maintain insurance as required hereunder or to
obtain new coverage as required hereunder, at its option, but without obligation
so to do, effect new insurance or at Mortgagee's option, insurance in favor of
Mortgagee alone, and that the premium or premiums for all such insurance shall
be paid by Mortgagor promptly when due.
Mortgagor does hereby appoint Mortgagee to be the true and lawful
attorney, irrevocable, of Mortgagor, in the name and stead of Mortgagor, and
Mortgagor hereby agrees that Mortgagee may (except for claims of less than One
Hundred Thousand Dollars ($100,000)), at Mortgagee's option following the
occurrence of an Event of Default, but without obligation to do so, demand,
adjust, xxx for, compromise and collect the proceeds of claims for losses which
may occur under any such insurance, give discharging receipts for sums received
in settlement of such losses, to reimburse Mortgagee therefrom for all expenses
(including reasonable counsel fees) incurred in connection therewith, and apply
the remainder thereof and any unearned premium of or dividend upon any canceled
insurance, notwithstanding the claim of any intervening encumbrancer or lienor,
at Mortgagee's election, in whole or in part, on account of the indebtedness
secured by this Mortgage, whether or not then due, or to the cost of repair or
restoration of the Mortgaged Property.
Mortgagor agrees to furnish Mortgagee certificates of all renewals of
the aforesaid insurance relating to Mortgagor or the Mortgaged Property prior to
the expiration date of the expiring policies. All policies of insurance shall
carry an endorsement requiring at least thirty (30) days' written notice to
Mortgagee from the insurer or insurers issuing the same prior to their changing
or canceling such policy, and Mortgagor hereby agrees to promptly deliver or
cause the delivery of any certificate evidencing any such change or cancellation
to Mortgagee. All policies of insurance shall provide independent insurance for
Mortgagee, and the rights of Mortgagee in the policy shall in no event be
subject to adverse effect or diminution by any act or neglect of Mortgagor.
6. Environmental Compliance.
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(a) Subject to the matters disclosed as of the date hereof to
Mortgagee, Mortgagor makes the following representations and warranties to
Mortgagee as to the Mortgaged Property:
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(i) Neither Mortgagor nor any operations conducted by
Mortgagor or any tenant of Mortgagor on the Mortgaged Property, is in violation,
or alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without limitation,
those arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("XXXX"), the Federal Clean Water Act of 1977, the Federal Clean Air Act, the
Toxic Substances Control Act, the Hazardous Materials Transportation Actor any
other federal, or state or local statute, regulation, ordinance, order or decree
relating to health, safety or the environment (collectively, "Environmental
Laws"), which violation involves any of the Mortgaged Property or would have a
material adverse effect on the environment or the business, assets or financial
condition of Mortgagor.
(ii) With the exception of a claim brought by third parties
against Mortgagor described in Note 9 to Mortgagor's annual financial statement
for its fiscal year 1994 and of the matters disclosed by Mortgagor on this date,
Mortgagor has not received notice from any third party, including without
limitation any federal, state or local governmental authority, (i) that it has
been identified by the United States Environmental Protection Agency ("EPA") as
a potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986); (ii) that
any hazardous waste, as defined by 42 U.S.C. (S) 9601(5), any hazardous
substances as defined by 42 U.S.C. (S) 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. (S) 9601(33) or any toxic substances, oil or hazardous
materials or other chemicals or substances regulated by any Environmental Laws
(collectively, "Hazardous Materials") which it has generated, transported or
disposed of have been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that Mortgagor conduct
a remedial investigation, removal or other response action pursuant to any
Environmental Laws; or (iii) that it is or shall be a named party to any claim,
action, cause of action, complaint, or legal or administrative proceeding (in
each case, contingent or otherwise) arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind whatsoever in connection with
the Release of Hazardous Materials.
(iii) No portion of any of the Mortgaged Property has been
used for the handling, processing, storage or disposal of Hazardous Materials
except in compliance with applicable Environmental Laws; and no underground tank
or other underground storage receptacle for Hazardous Materials is located on
any portion of any of the Mortgaged Property; and (i) in the course of any
activities conducted by Mortgagor, or to the knowledge of Mortgagor the
operators of the Mortgaged Property, no Hazardous Materials have been generated
or are being used on the Mortgaged Property except in compliance with applicable
Environmental Laws; (ii) to the best of Mortgagor's knowledge there has been no
past or present releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping (a "Release" or
"Releases") or threatened Release of Hazardous Materials on, upon, into or
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from the Mortgaged Property, which Release would have an adverse effect on
the value of any of the Mortgaged Property or adjacent properties or the
environment; (iii) to the best of Mortgagor's knowledge, there have been no
Releases on, upon, from or into any real property in the vicinity of any of the
Mortgaged Property which, through soil or groundwater contamination, may have
come to be located on, and which would have a material adverse effect on the
value of, any of the Mortgaged Property; and (iv) any Hazardous Materials that
have been generated on any of the Mortgaged Property have been transported off-
site only by carriers having an identification number issued by the EPA, treated
or disposed of only by treatment or disposal facilities maintaining valid
permits as required under applicable Environmental Laws, which transporters and
facilities have been and are, to the best of Mortgagor's knowledge, operating in
compliance with such permits and applicable Environmental Laws.
(iv) No part of the Mortgaged Property is or shall be subject
to any applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, by virtue of the transactions set forth
herein and contemplated hereby.
(b) In respect of all environmental matters Mortgagor shall:
(i) Comply strictly and in all respects with the requirements
of all federal, state, and local Environmental Laws; notify Mortgagee promptly
in the event of any spill, hazardous waste pollution or contamination affecting
any of the Mortgaged Property; forward to Mortgagee promptly any notices
relating to such matters received from any governmental agency; and pay promptly
when due any fine or assessment against any of the Mortgaged Property, provided
that Mortgagor shall have the right to contest any such fine or assessment so
long as no Event of Default exists at the time such contest is commenced, and
Mortgagor's contest thereof is asserted in good faith and prosecuted as
expeditiously as possible;
(ii) Not become involved, and shall use its best efforts to
not permit any tenant or subtenant of any of the Mortgaged Property to become
involved, in any operations at any of the Mortgaged Property generating,
storing, disposing, or handling of any hazardous material or any other activity
that could lead to the imposition on Mortgagee, Mortgagor or any of the
Mortgaged Property of any liability or lien under any Environmental Laws;
(iii) Immediately contain and, if required by the Rhode
Island Department of Environmental Management, the Massachusetts Department of
Environmental Protection, the United States Environmental Protection Agency or
any other governmental agency having jurisdiction over any of the Mortgaged
Property, remove any hazardous material found on any of the Mortgaged Property,
which work must be done in compliance with all requirements and all applicable
laws and at Mortgagor's expense; and Mortgagor agrees that Mortgagee has the
right, at its sole option but at Mortgagor's expense, to have an environmental
engineer or other representative review the work being done;
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(iv) Promptly upon the request of Mortgagee, based upon
Mortgagee's reasonable belief that a hazardous waste or other environmental
problem exists with respect to any of the Mortgaged Property, provide Mortgagee
with an environmental site assessment report or an update of any existing
report, all in scope, form and content satisfactory to Mortgagee; and
(v) Indemnify, defend, and hold Mortgagee harmless from and
against any claim, costs, damage (including, without limitation, consequential
damages), expense (including, without limitation, attorneys' fees and expenses),
loss, liability, or judgment now or hereafter arising as a result of any claim
for environmental cleanup costs, any resulting damage to the environment and any
other environmental claims against Mortgagor, Mortgagee, or any of the Mortgaged
Property.
7. Maintenance and Repair. Mortgagor shall maintain the Mortgaged
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Property in good condition and repair, shall not commit or suffer any waste of
the Mortgaged Property, and shall comply with, or cause to be complied with, all
statutes, ordinances and requirements of any federal, state, municipal, or other
governmental authority relating to the Mortgaged Property. 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 paragraph hereof
entitled Eminent Domain. Notwithstanding anything to the contrary provided above
in this Section 7, as long as any of the Bonds remain outstanding, if any of the
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insurance proceeds resulting from any damage to or destruction of any item of
Bond Collateral (hereinafter defined) are for any reason not applied to the
repair and/or replacement of such Bond Collateral, then such insurance proceeds
will be applied as follows: first, paid to Mortgagee as reimbursement for the
amount of any then unreimbursed draws for principal under the Letter of Credit
to the extent thereof (if any) as a result of an extraordinary redemption
pursuant to Section 310(a) of the Indenture (as defined in the Reimbursement
Agreement); and the balance (if any) paid to the Trustee for application to
payment of the Bonds pursuant to the Indenture. As used in this Mortgage, "Bond
Collateral" means any portion of the Mortgaged Property the cost of which was
paid or reimbursed, directly or indirectly, from the proceeds of the Bonds.
8. Alteration or Demolition. Mortgagor agrees that no building or
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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, except that Mortgagor may remove or dispose of, free from the lien
of this Mortgage, any Fixture as from time to time may become worn out or
obsolete, provided that prior to such removal, any such Fixture shall be
replaced with another Fixture of value and utility at least equal to that of the
replaced Fixture and free from any title retention or security agreement or
other encumbrance, and by such removal and replacement, Mortgagor shall be
deemed to have subjected such other equipment to the lien of this Mortgage; and
further except that Mortgagor may construct an addition to the building located
on the Premises and may complete all improvements to the Premises related to
such construction. 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. If Mortgagor
receives any
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proceeds of any item of Bond Collateral in excess of its original cost, then it
shall apply such proceeds as provided in the last two (2) sentences of
Section 7 hereof.
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9. Restrictions on Use of Property and Prohibition Against Sale.
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Mortgagor shall not sell, lease, 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 while any part of the indebtedness secured
hereby remains unpaid without the prior approval of Mortgagee. Further, unless
required by applicable law or unless Mortgagee has otherwise agreed in writing,
Mortgagor shall not allow changes in the nature of the occupancy for which the
Premises were intended on the date of this Mortgage, including, but not limited
to, any change in any private restrictive covenant or private restrictions, if
any, limiting or defining the uses which may be made of any part of the
Premises.
10. 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 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. 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. 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. Mortgagor hereby appoints Mortgagee its
attorney-in-fact, coupled with an interest, and authorizes, directs and empowers
such Attorney, at its option following the occurrence of an Event of Default, on
behalf of Mortgagor, to adjust, compromise or settle the claim for any such
award or payment, to collect, receive and retain the proceeds thereof, 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 require, to confirm or assign all 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 sums
secured hereby at the rate provided in the Letter of Credit, and to make all
payments required by the Reimbursement Agreement and this Mortgage. Any
reduction in the principal sums 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,
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incurred by Mortgagee, may be applied by Mortgagee, at its sole option, toward
payment of the indebtedness secured hereby whether or not same shall be then due
or payable, 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
Mortgaged Property, with interest thereon at the highest rate set forth in the
Letter of Credit, whether or not a deficiency judgment on this Mortgage shall
have been sought or recovered or denied, and to the extent of the reasonable
counsel fees, costs and disbursements incurred by Mortgagee in connection with
the collection of such award or payment.
Notwithstanding anything to the contrary provided above in this
Section 10, as long as any of the Bonds remain outstanding, if any of the
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proceeds resulting from any taking, alteration of grade, other injury to or
decrease in value of the Bond Collateral, or reacquisition of title, or
agreement, after deducting the expenses of collection, are for any reason not
applied to altering or restoring such Bond Collateral, then such insurance
proceeds will be applied as follows: first, paid to Mortgagee as reimbursement
for the amount of any then unreimbursed draws for principal under the Letter of
Credit to the extent thereof (if any) as a result of an extraordinary redemption
pursuant to Section 310(a) of the Indenture (as defined in the Reimbursement
Agreement); and the balance (if any) paid to the Trustee for application to
payment of the Bonds pursuant to the Indenture.
11. Right to Cure. At its option, Mortgagee may pay any expense or
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item (including, but not limited to, taxes, rates, assessments, other charges,
insurance premiums, maintenance and repair expenses, expenses incurred in
protection of the lien of this Mortgage, etc.) which Mortgagor herein agrees to
pay in case Mortgagor shall fail to pay the same when due, and may perform any
acts or covenants which Mortgagor herein agrees and shall fail to perform, and
may make any payments under or secured by any other mortgage on the Mortgaged
Property, and may add the same, and the expense thereof, including, but not
limited to, counsel fees and other costs, charges and disbursements incurred by
Mortgagee in connection therewith, to the indebtedness secured hereby or may at
its option deduct the same from any part of money thereafter advanced; and
Mortgagor agrees to repay immediately on demand, the same to Mortgagee, together
with interest thereon at the highest rate set forth in the Letter of Credit,
from the date on which such payment or expense is made 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 secured by this Mortgage.
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12. Protection of Lien. Mortgagor shall pay all costs, expenses and
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counsel fees incurred by Mortgagee in protecting or sustaining the lien of this
Mortgage, including without limitation all expenses incurred by Mortgagee in
connection with containment, monitoring, prevention or clean-up of hazardous
substances upon or in connection with the Mortgaged Property. Mortgagor shall
indemnify and save Mortgagee harmless from all such costs and expenses,
including, but not limited to, counsel fees, recording fees and costs of a title
search, 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 date
of such payment at the highest rate set forth in the Letter of Credit shall be
additional indebtedness secured hereby, and shall be immediately and without
notice due and payable to Mortgagee by Mortgagor.
13. Indemnification. Any and all expenses incurred in connection with
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the Reimbursement Agreement and the Letter of Credit, and secured by this
Mortgage, shall be paid by Mortgagor, including, but not limited to, the cost of
title insurance premiums and charges, recording fees, fees charged for servicing
said Letter of Credit, appraisal fees, and Mortgagee's attorneys fees.
Mortgagor agrees to pay all such fees and indemnify and save Mortgagee harmless
against the claims of any person(s) claiming any fee(s), reimbursement(s),
commission(s) and/or costs arising out of said Letter of Credit.
14. Right to Enter Premises. Mortgagee and any persons authorized by
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Mortgagee shall have the right to enter and inspect the Mortgaged Property at
all times upon prior reasonable notice to Mortgagor. Upon and after the
occurrence of an Event of Default, Mortgagee may conduct such environmental
assessments and testings of the Mortgaged Property as Mortgagee desires,
including without limitation the conducting of soil borings, installation and
monitoring of groundwater monitoring xxxxx and equipment, the use of ground
penetrating radar, and the conducting of tests of underground storage tanks.
15. [omitted]
16. No Waiver, Etc. Any failure by Mortgagee to insist upon the
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strict performance by Mortgagor of any of the terms and provisions hereof shall
not be deemed to be a waiver of any of the terms and provisions hereof, and
Mortgagee, notwithstanding any such failure, shall have the right thereafter to
insist upon the strict performance by Mortgagor, of any and all of the terms and
provisions of this Mortgage and the Reimbursement Agreement to be performed by
Mortgagor; and neither Mortgagor nor any other person now or hereafter obligated
for the payment of the whole or any part of the sums now or hereafter secured by
this Mortgage shall be relieved of such obligation by reason of the failure of
Mortgagee to comply with any request of Mortgagor 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,
-10-
of the whole or any part of the security held for the indebtedness secured by
this Mortgage; 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 secured by this Mortgage or any part of the security held for said
indebtedness and may extend the time of payment or otherwise modify the terms of
the Reimbursement Agreement 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 affecting the Premises whether or not such lease be subordinate to this
Mortgage; and Mortgagee may resort for the payment of the indebtedness secured
hereby to any other security therefor, held by Mortgagee in such order and
manner as Mortgagee.
17. Compliance with Laws, etc. Mortgagor shall comply with (a) all
-------------------------
present and future laws, regulations and other requirements of every
governmental body having jurisdiction over the Mortgaged Property or the use or
occupation of the improvements thereon, and (b) all terms, covenants and
conditions of all instruments of record affecting the Mortgaged Property,
noncompliance with which may affect the security of this Mortgage or impose any
duty or obligation upon Mortgagor or Mortgagee.
18. Partial Foreclosure. Mortgagee may, at its option, foreclose this
-------------------
Mortgage for any portion of the debt or any other sums secured thereby which are
then due and payable, subject to the continuing lien of this Mortgage for the
balance not then due, but nothing in this paragraph contained shall impair or
affect any right or remedy which Mortgagee might now or hereafter have, were it
not for this paragraph, but the right given by this paragraph shall be in
addition to any others which Mortgagee may have hereunder.
19. Marshalling. Except as hereinafter provided, 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 said indebtedness to the extent of the value of such part or
parts; and shall not be compelled to accept or allow any apportionment of the
said 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. 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
-11-
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 secured hereby 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.
Without in any way limiting the generality of the foregoing, Mortgagee
shall have the right from time to time to take action to recover any sums,
whether interest, principal or any installment of either, or any other sums
required to be paid under the terms of this Mortgage or the Reimbursement
Agreement, as the same become due, without regard to whether or not the
principal sums secured or any other sums secured hereby shall be due, and
without prejudice to the right of Mortgagee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by Mortgagor
existing at the time such earlier action was commenced.
21. Foreclosure Expenses. If this Mortgage shall be foreclosed, there
--------------------
shall be included to the extent permitted by law in the computation of the
indebtedness secured hereby, the amount of a reasonable 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 by
Mortgagee in connection with such foreclosure action or proceeding.
22. Future Laws Affecting Mortgages. In the event of the passage,
-------------------------------
after the date of this Mortgage, of any law, federal, state or local, or in the
event of the rendition of a decision of any court of competent jurisdiction,
imposing upon Mortgagee the taxes, charges or assessments previously paid by
Mortgagor, or changing in any way the laws for the taxation of mortgages or
indebtedness secured by mortgages, or imposing a tax, directly or indirectly, on
this Mortgage or the Reimbursement Agreement, or changing the manner of the
collection of any such taxes, charges or assessments, so as to affect this
Mortgage or lessen the net income on the indebtedness secured by this Mortgage
or upon the rendition of any court of competent jurisdiction of a decision that
any undertaking by Mortgagor as in this paragraph or elsewhere in this Mortgage
provided, is legally inoperative, then Mortgagee shall have the right, at its
option, to give sixty (60) days written notice to Mortgagor requiring the
payment of the mortgage debt, and the mortgage debt shall become due and payable
and collectible, at the expiration of said sixty (60) days; provided, however,
said option shall be unavailing and the Reimbursement Agreement and this
Mortgage shall remain in effect as though said law had not been enacted or
decision rendered, if under such law or decision Mortgagor lawfully may pay any
such tax, charge or assessment to or for Mortgagee and does in fact pay same
when payable and any and all security and collateral granted by Mortgagor to
Mortgagee under this Mortgage and the Financing Agreements, hereinafter defined,
is not impaired by said law or decision.
-12-
23. Reliance on Documents, Etc. Mortgagee, in making any payment
--------------------------
herein authorized in the place and stead of Mortgagor which (a) relates to
taxes, assessments, water rates, sewer use and rentals and 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 (b) 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 (c) relates to the
expense of repairs or replacement of any buildings' improvements, Fixtures or
any other Mortgaged Property; or (d) otherwise relates to any other purpose not
specifically enumerated in this Article, may do so whenever, in its 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 its 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 shall be repayable by
Mortgagor without demand and shall be secured hereby.
24. Event(s) of Default and Remedies. Upon the occurrence of any one
--------------------------------
or more Events of Default under the Reimbursement Agreement, or upon the
occurrence of any event of default or the commencement of any foreclosure
proceedings under any other mortgage lien affecting the Mortgaged Property
(each called an "Event of Default" and more than one herein called "Events of
Default"), (a) the whole of the principal sums due under the Reimbursement
Agreement, interest accrued thereon, and any and all indebtedness secured
hereby, shall become due and payable in full pursuant to the terms of the
Reimbursement Agreement, at the option of Mortgagee; (b) Mortgagee may, at its
option, exercise its Statutory Power of Sale pursuant to M.G.L.A. Ch. 183,
Section 21, as amended, which is hereby incorporated herein by reference in its
entirety as if set forth herein; and (c) Mortgagee may, at its option, commence
or take any action permitted under the laws of the Commonwealth of Massachusetts
or the United States of America, including without limitation the taking of
possession of the Mortgaged Property as Mortgagee in possession pursuant to
Massachusetts laws. In the event of a sale of the Mortgaged Property, Mortgagee
shall receive the proceeds of such sale or sales, and from such proceeds shall
retain all sums hereby secured, whether then due or to fall due thereafter, or
the part thereof then remaining unpaid, and also the interest then due on the
same, including, without limitations, all expenses incident to such sale or
sales, for making deeds hereunder, for reasonable fees of counsel and attorneys,
and, also without limitation, all costs or expenses incurred in the exercise or
defense of the rights and powers of Mortgagee hereunder and all taxes, water and
sewer rates, assessments, premiums for insurance and expenses incurred in
repairing or preserving the Premises, either theretofore paid by Mortgagee or
then remaining unpaid, rendering and paying the surplus of said proceeds of
sale, if any there be, over and above the amounts so to be retained as
aforesaid, together with a true and particular account of such sale or sales,
expenses and charges to Mortgagor, which sale or sales, expenses and charges to
Mortgagor, which sale or sales shall forever be a perpetual bar, both in law and
equity, against the Mortgagor and all persons claiming or to claim the Mortgaged
Property so sold by, from or under Mortgagor. Upon the occurrence of an Event
of Default and written request from
-13-
Mortgagee, Mortgagor shall pay to Mortgagee monthly, in addition to all sums
called for by the Reimbursement Agreement, such sums as shall, from time to
time, in the estimation of Mortgagee, be equal to one-twelfth of the annual real
estate taxes to be assessed upon the Mortgaged Property and/or premiums to be
paid for insurance required hereunder. Such sums shall be applied by Mortgagee
to the payment of such taxes and/or insurance premiums, but if default be made
in any payment required by the Reimbursement Agreement, such sums or any part
thereof may, at the option of Mortgagee, be applied against the indebtedness
hereby secured.
25. Miscellaneous Provisions.
------------------------
(a) In the event of a foreclosure of this Mortgage, the purchaser of
the Mortgaged Property, if Mortgagee so consents, shall succeed to all the
rights of Mortgagor to the Mortgaged Property, including, without limitation,
any right to unearned premiums, in and to all policies of insurance assigned and
delivered to Mortgagee pursuant to the provisions hereof.
(b) A demand upon or notice to Mortgagor or Mortgagee hereunder shall
be sufficient notice and shall be effective if deposited in the United States
mail, certified, return receipt requested, postage prepaid, addressed as
follows:
(i) If to Mortgagor, to: AFC Cable Systems, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Chairman,
with a copy to: Xxxxxxxx Xxxx, Esq.
Xxxxxxxx, Xxxxx & Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000;
(ii) If to Mortgagee, to: Fleet National Bank
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Vice President,
with a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxxxxxx, Snow & Xxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000.
Either party may change its address for such notice purposes upon ten (10) days'
advance written notice given as aforesaid.
-14-
(c) Mortgagor is hereby notified that Mortgagor has the right of free
choice in the selection of the agent and insurer through or by which insurance
required in connection with the Reimbursement Agreement is to be placed.
(d) Notwithstanding anything in this Mortgage or any other instrument
to the contrary, Mortgagor shall not be required to pay interest on the
indebtedness secured by this Mortgage in excess of the maximum interest
permissible under applicable law. In the event Mortgagor shall pay or be
charged in an amount in excess of said maximum permitted interest, such excess
amount shall be applied to reduce the principal balance of the indebtedness
secured by this Mortgage and not to payment of interest.
(e) Mortgagor shall observe, perform or comply with all obligations,
conditions and covenants contained herein and in the Financing Agreements. Any
and all provisions of the Financing Agreements are hereby made a part hereof to
the same extent as if fully set forth herein. 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
owing to Mortgagee, including, but not limited to, the Reimbursement Agreement,
this Mortgage, the Letter of Credit, and such other agreements as are executed
by Mortgagor on this date or in the future, and any modification,
supplementation or amendment thereof made from time to time.
(f) The liens and other rights and interests in and relative to any of
the real or personal property of Mortgagor now or hereafter granted to Mortgagee
by Mortgagor by or in any instrument or agreement, including but not limited to
the Financing Agreements, shall serve as security for any and all liabilities of
Mortgagor to Mortgagee, including but not limited to the liabilities described
in the Reimbursement Agreement, and, for the repayment thereof, Mortgagee may
resort to any security held by it in such order and manner as it may elect.
(g) Mortgagor shall immediately give prompt notice to Mortgagee of the
occurrence of any of the following events:
(i) a fire or other casualty causing damage to the Mortgaged
Property;
(ii) receipt of notice of eminent domain proceedings or condemnation
of the Mortgaged Property;
(iii) receipt of notice from any governmental authority relating to
the structure, use or occupancy of or appearance of hazardous
substances upon the Mortgaged Property or any real property
adjacent to the Mortgaged Property;
(iv) commencement of any litigation affecting the Mortgaged Property;
-15-
(v) any contract or agreement with respect to any sale or other
transfer of any part of the Mortgaged Property;
(vi) commencement of any foreclosure proceedings, including by the
giving of notice thereof, affecting the Mortgaged Property.
(h) 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", the term "mortgage debt", shall
mean "any and all indebtedness of Mortgagor to Mortgagee as evidenced by the
Reimbursement Agreement and/or secured by this Mortgage" and the word "person"
shall include "an individual, corporation, partnership or unincorporated
association", and plural or singular shall include each other, and pronouns in
any gender shall be construed as masculines, feminine or neuter as the context
requires.
(i) "Hazardous substance" as used herein shall mean "solid waste" or
"hazardous waste," "hazardous material," "hazardous substance," and "oil" as
defined in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Hazardous Material
Transportation Act, the Federal Water Pollution Control Act and the Superfund
Amendments and Reauthorization Act of 1986 and any similar or successor federal
law or applicable statute and local statutes and ordinances and any rules,
regulations and policies promulgated thereunder, as any of such federal, state
and local statutes, ordinances and regulations may be amended from time to time.
(j) 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.
(k) 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.
(l) This Mortgage shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts. 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 successors and
assigns of Mortgagor and Mortgagee.
26. Mortgage Condition. If all of the obligations of Mortgagor as set
------------------
forth herein, in the Reimbursement Agreement, in the Letter of Credit and in any
additional indebtedness secured hereby, and any extensions or renewals thereof,
shall be paid and satisfied according to their tenor, and if all agreements and
provisions contained in the
-16-
Financing Agreements are fully kept and performed, then this Mortgage shall,
upon payment or performance of the last such obligation, become null and void;
otherwise to remain in full force and effect.
27. Waiver of Jury Trial; Service of Process. In the event that
----------------------------------------
Mortgagee brings any action or proceeding in connection herewith in any court of
record of the State of Rhode Island, Commonwealth of Massachusetts, or the
United States for any district located in any of the foregoing states, the
Mortgagor hereby irrevocably consents to and confers personal jurisdiction of
such court over Mortgagor by such court. In any such action or proceeding,
Mortgagor hereby waives personal service of any summons, complaint or other
process and agrees that service thereof may be made upon Mortgagor by mailing a
copy of such summons, complaint or other process by United States certified
mail, return receipt requested, postage prepaid, to the address set forth in
Section 25(b) hereof. MORTGAGOR HEREBY WAIVES TRIAL BY JURY IN ANY LITIGATION
IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS
MORTGAGE OR ANY INSTRUMENT OR DOCUMENT DELIVERED IN CONNECTION HEREWITH, OR THE
VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY
OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN MORTGAGOR AND MORTGAGEE.
-17-
IN WITNESS WHEREOF, Mortgagor and Mortgagee have executed this
Mortgage, by their duly authorized representatives, as of the 1st day of July,
1996.
Witnessed by: Mortgagor:
AFC CABLE SYSTEMS, INC.
By:
-------------------------- ----------------------------------
Witnessed by: Mortgagee:
FLEET NATIONAL BANK
By:
-------------------------- ----------------------------------
Xxxxxxx X. Xxxxx, Vice President
Witnessed by:
By:
-------------------------- ----------------------------------
-18-
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Providence, in said County, on the _______ day of _______, 1996,
before me personally appeared the above-named _______________________________,
to me known and known by me to be a _____________________________ of, and the
person executing these presents on behalf of, AFC Cable Systems, Inc., the party
executing the foregoing instrument, and he acknowledged said instrument by him
so executed to be his free act and deed as such officer, and the free act and
deed of said AFC Cable Systems, Inc.
--------------------------------------
Notary Public
Print Name:
My Commission Expires:
----------------
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Providence, in said County, on the _______ day of ________, 1996,
before me personally appeared the above-named Xxxxxxx X. Xxxxx, to me known and
known by me to be a Vice President of, and the person executing these presents
on behalf of, Fleet National Bank, the party executing the foregoing instrument,
and he acknowledged said instrument by him so executed to be his free act and
deed as such Vice President, and the free act and deed of said Fleet National
Bank.
--------------------------------------
Notary Public
Print Name:
My Commission Expires:
----------------
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Providence, in said County, on the _______ day of _________, 1996,
before me personally appeared the above-named ________________________________,
to me known and known by me to be a _______________________ of, and the person
executing these presents on behalf of, Fleet National Bank, the party executing
the foregoing instrument, and he acknowledged said instrument by him so executed
to be his free act and deed as such officer, and the free act and deed of said
Fleet National Bank.
--------------------------------------
Notary Public
Print Name:
My Commission Expires:
----------------
-19-
EXHIBIT A
---------
Legal Description
-20-
