OPEN-END MORTGAGE DEED
THIS MORTGAGE SECURES FUTURE ADVANCES
THIS OPEN-END MORTGAGE DEED MADE THIS ____ day of September, 1997,
between SONICS & MATERIALS, INC., a Delaware corporation (the "Mortgagor"),
having an address at __________________________, and delivered to BROWN BROTHERS
XXXXXXXX & CO., a private bank (the "Mortgagee").
W I T N E S S E T H:
Background
WHEREAS, in accordance with the provisions of a Credit Agreement
dated of even date herewith (the "Credit Agreement"), Xxxxxxxxx has executed and
delivered to Mortgagee the following (each dated as of the date hereof):
(1) its Bridge Loan Note (the "Bridge Loan Note") pursuant to which
Xxxxxxxxx has agreed to pay to Mortgagee the principal sum of One Million
Six Hundred Thousand Dollars ($1,600,000), advanced by Mortgagee to
Mortgagor, with interest thereon, all according to the terms and
conditions specified in the Bridge Loan Note, all of which
are incorporated hereby by reference;
(2) its Line of Credit Note (the "Line of Credit Note") pursuant to
which Xxxxxxxxx has agreed to pay to Mortgagee the principal sum of One
Million Five Hundred Thousand Dollars ($1,500,000), advanced by Mortgagee
to Mortgagor, with interest thereon, all according to the terms and
conditions specified in the Line of Credit Note, all of which are
incorporated hereby by reference; and
(3) its Term Loan Note (the "Term Loan Note") pursuant to which
Xxxxxxxxx has agreed to pay to Mortgagee the principal sum of Four Hundred
Twenty Seven Thousand Dollars ($427,000), advanced by Mortgagee to
Mortgagor, with interest thereon, all according to the terms and
conditions specified in the Term Note, all of which are incorporated
hereby by reference; and
WHEREAS, improvements on the Mortgaged Premises (as defined
below) are to be erected or repaired; and
WHEREAS, Mortgagee has agreed to make the loan evidenced by the
Bridge Loan Note to be paid over to Mortgagor in installments as work
progresses, the time and amount of each advancement to be at the sole discretion
and upon the estimate of Mortgagee, so that when all of the work on the
Mortgaged Premises shall have been completed to the satisfaction of Mortgagee,
said Mortgagee shall then pay over to the Mortgagor any balance necessary to
complete the full loan of $1,600,000; and
WHEREAS, Xxxxxxxxx agrees to complete the erection or repair of said
buildings to the satisfaction of Mortgagee within a reasonable time from the
date hereof or at the latest on or before December 31, 1997; and
WHEREAS, The Connecticut Development Authority expects to issue to
the Mortgagee its Industrial Development Revenue Bond (Sonics & Materials, Inc.
Project), Series of 1997 in the aggregate principal amount of $2,945,000, the
proceeds of which will be advanced to or for the benefit of Mortgagor to
refinance the Bridge Loan Note and to pay additional costs of the Construction
Project (as defined in the Credit Agreement).
NOW, THIS OPEN-END MORTGAGE DEED that Xxxxxxxxx, in consideration of
the principal indebtedness of the Mortgagor evidenced by the Bridge Loan Note,
the Line of Credit Note and the Term Loan Note (collectively, the "Notes") and
to secure the payment thereof and of all other sums due or to become due to the
Mortgagee under the Notes, the Credit Agreement, this Mortgage and the other
documents evidencing or securing the loans (collectively, the "Financing
Agreements") and the performance of all of the other provisions of the Financing
Agreements on the part of Mortgagor to be performed, has granted, bargained,
sold, aliened, released, conveyed, mortgaged and confirmed unto Mortgagee and
does hereby grant, bargain, sell, alien, release, convey, mortgage and confirm
unto Mortgagee, all of its interests in that certain real estate situated in
Newtown, Connecticut, as more particularly described on Exhibit "A" attached
hereto and made a part hereof (said real estate, together with the Improvements
and Fixtures hereinafter described, being referred to herein collectively as the
"Mortgaged Premises"); and also
TOGETHER with all and singular the buildings, streets, alleys,
passages, ways, waters, watercourses, rights, liberties, privileges,
improvements, hereditaments and appurtenances whatsoever thereunto belonging or
in any way appertaining, and the reversions and remainders and rents, issues and
profits thereof (collectively, the "Improvements"); and also
TOGETHER with all and singular the fixtures now or hereafter
installed in the aforesaid premises (the "Fixtures"); and also
TOGETHER with all right, title and interest of the Mortgagor in and
to all equipment, machinery, furniture and fixtures (together with all related
attachments, accessaries, tools and parts) located on the Mortgaged Premises,
whether now owned or hereafter acquired (collectively, the "Equipment" and,
together with the Mortgaged Premises, the "Mortgaged Property"), and all
proceeds (including insurance proceeds) and products thereof;
TO HAVE AND TO HOLD the Mortgaged Property and other property hereby
granted, or mentioned and intended so to be, with the appurtenances, unto
Mortgagee, its heirs, executors, administrators, successors and assigns
(including any Person succeeding to the rights of the Mortgagee as a transferee
of the Notes), to its or their own use forever.
PROVIDED ALWAYS, that if Mortgagor shall promptly and fully pay and
discharge all sums outstanding and becoming due under the Financing Agreements
and shall perform all the other provisions therein contained, then the estate
hereby granted shall cease, terminate and become void, but otherwise shall
remain in full force and effect.
AND XXXXXXXXX XXXXXX FURTHER COVENANTS AND AGREES WITH MORTGAGEE
AS FOLLOWS:
1. Warranty of Title1. Warranty of Title. The Mortgagor warrants
that: the Mortgagor has good and marketable title to an estate in fee simple
absolute in the Mortgaged Premises and the Fixtures; that the Mortgagor has or
will have good title to the Equipment; this Mortgage is a valid and enforceable
first lien on the Mortgaged Property; subject to the liens and security
interests listed on Exhibit E to the Credit Agreement; and the Mortgagee shall,
subject to the Mortgagor's rights of possession prior to any default hereunder,
quietly enjoy and possess the Mortgaged Property. The Mortgagor, at its own
expense, shall preserve such title and the validity and priority of the lien
hereof and shall forever warrant and defend the same to the Mortgagee against
the claims of all persons and parties whomsoever.
2. Covenants of Mortgagor. Mortgagor will pay to the Mortgagee all
amounts due under the Notes with respect to the principal of and interest
accrued on the Notes and all other sums due and becoming due under the Financing
Agreements, all such payments to be made as and when due. Xxxxxxxxx will observe
and perform all of the terms, conditions and provisions on the part of Mortgagor
to be observed and performed under the Financing Agreements, and Mortgagor
shall, at its own expense, preserve, protect and defend the title, validity and
priority of this Mortgage against all claims and demands whatsoever.
3. Security Agreement; Fixtures Filing. Mortgagor hereby grants to
Mortgagee a security interest in the Equipment in accordance with the Uniform
Commercial Code as in effect in the State of Connecticut (the "Uniform
Commercial Code") and for such purpose this Mortgage shall constitute a security
agreement under the Uniform Commercial Code and, further, shall be effective as
a financing statement filed as a fixture filing under the Uniform Commercial
Code with respect to the Fixtures. Mortgagor will furnish to Mortgagee from time
to time statements and schedules further identifying and describing the
Equipment and such other reports in connection with the Equipment as Mortgagee
may reasonably request, all in reasonable detail. Mortgagor shall further give,
execute, deliver and file or record in the proper governmental offices, any
instrument, paper or document, including but not limited to one or more
financing statements under the Uniform Commercial Code, satisfactory to
Mortgagee, or take any action, which Mortgagee may deem necessary or desirable
in order to create, preserve, perfect, extend, modify, terminate or otherwise
affect any security interest granted pursuant hereto, or to enable Mortgagee to
exercise or enforce any of its rights hereunder.
4. Escrows. Upon the occurrence of an Event of Default, or of an
event that would, with the passage of time or the giving of notice or both, be
such an Event of Default, under the Financing Agreements, Mortgagor shall, if
requested by Mortgagee, also pay to the Mortgagee, in monthly payments on each
Interest Payment Date, installments on account of the annual taxes and water
rents and sewer charges assessed or to be assessed against the Mortgaged
Premises, and the premiums on all policies of insurance held by Mortgagee
pursuant to the provisions of Section 6 hereof, in amounts sufficient to permit
the Mortgagee to pay said taxes, water and sewer charges and insurance premiums
as and when they become due. Such installment payments may be used by Mortgagee
for the purposes designated at such time or times as Mortgagee in its sole
discretion may determine, but may not be commingled with the general funds of
Mortgagee, and the interest payable thereon, if any, and income therefrom, if
any, shall be used by the Mortgagee for the benefit of Mortgagor.
5. Lienable Charges. Unless the same are paid into escrow with
Mortgagee pursuant to Section 4 hereof, Mortgagor shall pay before they become
delinquent, or shall procure the discharge or release of, all taxes (including
corporate taxes), water and sewer charges and other charges, claims,
assessments, liens and encumbrances now or hereafter assessed with respect to
the Mortgaged Property and the improvements thereon which shall or might have
priority in lien or payment to the indebtedness secured by this Mortgage, and
shall deliver the receipts for the same (or copies thereof) to Mortgagee upon
request of the Mortgagee.
6. Insurance; Damage by Casualty or Condemnation. Mortgagor shall
keep the Mortgaged Property insured for the benefit of Mortgagee against loss by
fire and other casualties and hazards required by Mortgagee, upon terms and in
companies and amounts satisfactory to the Mortgagee, and shall assign and
deliver all such policies of insurance to the Mortgagee as additional security,
with Mortgagee named as mortgagee and as the loss payee thereon. Mortgagee may
settle all claims under all such policies and may demand, receive and receipt
for all moneys becoming payable thereunder. Upon the occurrence of any casualty
damage or condemnation to the Mortgaged Property or any portion thereof, the
proceeds (a) under any policy of insurance or (b) from any condemnation award
(or deed in lieu thereof), shall be paid directly to the Mortgagee, and the
Mortgagee shall release the proceeds to Mortgagor as the alteration,
reconstruction, repair, restoration or replacement of the damaged and/or untaken
portion, as the case may be, of the Mortgaged Property progresses, subject to
the following conditions:
a. Borrower is not in default under the terms,
covenants, and conditions of the Financing Agreements
or any other agreements between Borrower and Bank;
b. Bank approves in writing the plans and specifications
for restoration;
c. There are sufficient funds on deposit at all times
with Bank to complete the rebuilding, as certified by
an architect approved by Bank;
d. Borrower provides suitable completion, payment and
performance bonds, and builder's all risk insurance
in form and amount acceptable to Bank;
e. Bank shall have the option of applying, at par, any
surplus insurance proceeds which remain after
rebuilding to the reduction of the outstanding
principal balance of the indebtedness secured by this
Mortgage;
f. Prior to any disbursement, an inspecting
engineer/architect of Bank's choice, whose fees shall be
paid by Borrower, shall certify completion of work in
place in accordance with approved plans and
specifications, and in accordance with all applicable
building codes, zoning ordinances, and all other local
or federal governmental regulations; and
g. Such other conditions as would customarily be
required by a local construction lender, or are
otherwise reasonable.
Mortgagor shall deliver to the Mortgagee a renewal or replacement of each such
policy not less than thirty (30) days prior to the expiration thereof, together
with evidence of the payment of all premiums due for such policy. Mortgagor
shall promptly notify Mortgagee upon the occurrence of any casualty damage or
condemnation, or threatened condemnation, affecting the Mortgaged Property.
7. Repair and Condition of Mortgaged Premises; Removal of Equipment.
Subject to the provisions of Section 6 above with respect to any loss or
casualty, Mortgagor shall keep the Mortgaged Property in good condition and
repair, and shall not remove, demolish or materially alter the Mortgaged
Premises, nor commit or suffer waste with respect thereto. Mortgagor shall
comply with all laws, rules, regulations and ordinances made or promulgated by
lawful authority which may now or hereafter become applicable to the Mortgaged
Property, and Mortgagor shall prohibit any use of the Mortgaged Property which
would permit the confiscation or seizure thereof. Mortgagor shall permit
Mortgagee's agents at any reasonable time and from time to time to enter upon
the Mortgaged Premises for the purpose of inspecting and appraising any part of
the Mortgaged Property. Mortgagor shall not take or permit any action with
respect to the Mortgaged Property which will in any manner impair the security
of this Mortgage. The Mortgagor shall not remove any of the Equipment from the
Mortgaged Premises without the prior written consent of the Mortgagee.
8. Mortgagee's Right to Cure. In the event of the failure of
Mortgagor to pay the taxes, water and sewer charges and other charges, claims,
assessments, liens, or encumbrances described in Section 5 hereof, or to furnish
and pay for the insurance as set forth in Section 6 hereof, or to keep the
Mortgaged Property in good condition and repair as provided in Section 7 hereof,
Mortgagee may, at its option, but without any obligation to do so, pay any or
all such items, together with penalties and interest thereon, and procure and
pay for such insurance and repairs; and Mortgagee may at any time and from time
to time advance such additional sum or sums as Mortgagee in its sole discretion
may deem necessary to protect the security of this Mortgage. All such sums so
paid or advanced by Mortgagee shall immediately and without demand be repaid by
Mortgagor to Mortgagee, together with interest thereon at the Mortgagee's Base
Rate plus 2% on the indebtedness evidenced thereby, and shall be added to the
principal indebtedness secured by this Mortgage. The production of a receipt by
Mortgagee shall be conclusive proof of a payment or advance authorized hereby,
and the amount and validity thereof.
9. Leases. Mortgagor shall, if requested by Mortgagee, and whether
or not there shall be any default under any of the Financing Agreements, assign
to Mortgagee, as additional security, any and all leases now existing or
hereafter created covering any part of the Mortgaged Premises. The Mortgagor
does hereby assign and pledge to the Mortgagee all of its rights in and to any
lease on the Mortgaged Premises. Mortgagor hereby assign and transfer to
Mortgagee any and all rents now or hereafter issuing from the Mortgaged
Premises, or any portion thereof, and Mortgagor agrees that, upon the occurrence
of an event of default, or an event that would, with the passage of time or the
giving of notice or both, be such an event of default, under any of the
Financing Agreements, Mortgagee may collect and apply the same to the payment of
any sum required to be paid by Mortgagor thereunder, in such order of priority
as Mortgagee in its sole discretion may determine.
10. Environmental. (a) Mortgagor represents and warrants that, to
the best of its knowledge based solely on the Environmental Reports (as defined
below), and except for the use, storage and disposal of Hazardous Substances in
the ordinary course of Mortgagor's business in compliance with all Environmental
Laws (as defined below) or as disclosed in the Environmental Reports, the
Mortgaged Premises are not now and have never been used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer,
produce, process or in any manner deal with Hazardous Materials, and that no
Hazardous Materials have ever been installed, placed or in any manner dealt with
on the Mortgaged Premises, and that no owner of the Mortgaged Premises or any
tenant, subtenant, occupant, prior tenant, prior subtenant, prior occupant or
person (collectively, "Occupant") has received any notice or advice from any
governmental agency or any Occupant with regard to Hazardous Materials on, from
or affecting the Mortgaged Premises.
The term "Environmental Reports" as used in this Mortgage means the
following reports: (i) Phase II Environmental Site Assessment prepared by Xxxxxx
Engineers and Associates, Inc. dated November 13, 1987 (the "1987 Phase II
Report"), (ii) Review of the 1987 Phase II Reprot prepared by Land Tech
Remedial, Inc. dated March 28, 1996, and (iii) Phase I Environmental Site
Assessmenet and Preliminary Phase II Site Assessment prepared by Land Tech
Remedial, Inc. dated August 14, 1997 (Land Tech Remedial Project #12567).
The term "Hazardous Materials" as used in this Mortgage shall
include, without limitation, gasoline, petroleum products, explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic
substances, polychlorinated biphenyls or related or similar materials, asbestos
or any material containing asbestos, or any other substance or material as may
be defined as a hazardous or toxic substance by any Federal, state or
environmental law, ordinance, rule or regulation including, without limitation,
The Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C., Sections 9601 et seq.), The Hazardous Materials
Transportation Act, as amended (49 U.S.C., Sections 1801 et seq.), The Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C., Sections 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. Sections 1251 et
seq.), The Clean Air Act (42 U.S.C. Sections 7401 et seq.), Connecticut General
Statutes (Rev. 1958) Sections 22a-134, 22a-432(a) and 22a-454, and in the
regulations adopted and publications promulgated pursuant thereto.
(b) Mortgagor covenants that the Mortgaged Premises shall not be
used to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, process or in any manner deal with Hazardous Materials in an
unlawful manner, and Mortgagor shall not cause or permit, as a result of any
intentional or unintentional act or omission on the part of Mortgagor or any
present or future Occupants, any of the following to occur in an unlawful
manner: the installation or placement of Hazardous Materials in or on the
Mortgaged Premises or a release of Hazardous Materials onto the Mortgaged
Premises or onto any other property or suffer the presence of Hazardous
Materials on the Mortgaged Premises. Mortgagor shall comply with, and shall
require that all tenants, subtenants and other occupants of the Mortgaged
Premises comply with, all applicable federal, state and local laws, ordinances,
rules and regulations with respect to Hazardous Materials, and shall keep the
Mortgaged Premises free and clear of any liens imposed pursuant to such laws,
ordinances, rules and regulations. In the event that Mortgagor receive any
notice or advice from any governmental agency or any Occupant with regard to
Hazardous Materials on, from or affecting the Mortgaged Premises, Mortgagor
shall immediately notify Mortgagee. Mortgagor shall conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal, and
other actions necessary to clean up and remove all Hazardous Materials on, from
or affecting the Mortgaged Premises in accordance with all applicable federal,
state, and local laws, ordinances, rules, regulations, and policies. The
obligations and liabilities of Mortgagor under this Section shall survive the
foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure.
(c) Mortgagor shall indemnify and hold Mortgagee harmless from and
against any and all liabilities, losses, damages or costs suffered or incurred
as a result of any claim, demand, cost or judgment in favor of a third party
(including any public or governmental body) arising from or out of the
generation, manufacture, refining, transportation, treatment, storage, handling,
disposal, transfer, production, processing or any manner dealing with Hazardous
Materials on or about the Mortgaged Premises by the Mortgagor or any other
Person, including all costs of removal, remediation, abatement, correction or
cleanup or any liability for personal injury to a third party arising therefrom
or in connection therewith. The indemnity set forth in this paragraph shall
survive the payment of the indebtedness secured hereby and the satisfaction of
this Mortgage.
11. Expenses of Mortgagee. Mortgagor shall reimburse Mortgagee on
demand for all reasonable costs and expenses (including the reasonable fees and
expenses of legal counsel for Mortgagee) incurred in connection with (A) the
protection, exercise or enforcement of Mortgagee's rights hereunder, including
(without limitation) Mortgagee's rights to (i) take possession of all or any
part of the Mortgaged Property, (ii) hold the Mortgaged Property, (iii) prepare
the Mortgaged Property for sale or other disposition and (iv) sell or otherwise
dispose of the Mortgaged Property and (B) the assertion, protection, exercise or
enforcement of Mortgagee's rights in any proceeding under the United States
Bankruptcy Code, including (without limitation) the preparation, filing and
prosecution of (i) proofs of claim, (ii) motions for relief from the automatic
stay, (iii) motions for adequate protection and (iv) complaints, answers and
other pleadings in adversary proceedings by or against Mortgagee or relating in
any way to any of the Mortgaged Property.
12. Events of Default; Certain Remedies. If Mortgagor shall (a) fail
to pay any sum required to be paid by Xxxxxxxxx (i) under the Notes when due or
under this Mortgage within ten (10) Business Days after the same becomes due and
payable as herein provided, (b) be in default (subject to any applicable notice
and grace periods) under any Financing Agreement, (c) fail to perform any other
provision hereof on the part of Mortgagor to be performed and such failure
continues for thirty (30) days following written notice from Mortgagee, or (d)
be declared bankrupt or insolvent and the same is not discharged within sixty
(60) days, or if proceedings under the Federal Bankruptcy Code or any similar
statute are instituted by Mortgagor or if such proceedings are instituted
against Mortgagor and are not discharged within sixty (60) days, or if a
receiver is appointed for all or any portion of the property of any Mortgagor;
then in any such event (each, an "Event of Default"), at the option of
Mortgagee: (a) the whole unpaid balance of the principal indebtedness, together
with all interest thereon and all other sums hereby secured, shall become due
and payable immediately, without notice to Mortgagor, and shall be recoverable
by Mortgagee forthwith or at any time or times thereafter, without stay of
execution or other process; (b) Mortgagee may take possession of all or any part
of the Mortgaged Property; (c) Mortgagee may apply on account of the
indebtedness hereby secured the balance of accumulated installment payments made
by Mortgagor for taxes, water and sewer charges and insurance premiums under
Section 4 hereof; and (d) Mortgagee may forthwith exercise all other rights and
remedies provided in the Financing Agreements, or which may be available to
Mortgagee by law, including the right to institute foreclosure proceedings
hereunder, and all rights with respect to the Equipment permitted under the
Uniform Commercial Code. All such rights and remedies shall be cumulative and
concurrent and may be pursued singly, successively or together, at Mortgagee's
sole discretion, and may be exercised as often as occasion therefor shall occur.
13. Operation of Mortgaged Premises. If Mortgagee shall take
possession of the Mortgaged Premises as provided in Section 12 hereof, Mortgagee
may: (a) hold, manage, operate and lease the same to Mortgagor or any other
person or persons on such terms and for such periods of time as Mortgagee may
deem proper, and the provisions of any lease made by Mortgagee pursuant hereto
shall be valid and binding upon Mortgagor's notwithstanding that Mortgagee's
right of possession may terminate or this Mortgage may be satisfied of record
prior to the expiration of the term of such lease; (b) make such alterations,
additions, improvements, renovations, repairs and replacements thereto as
Mortgagee may deem proper; (c) demolish any part or all of the improvements
situate upon the Mortgaged Premises which in the reasonable business judgment of
Mortgagee may be in unsafe condition and dangerous to life and property; (d)
remodel such improvements so as to make the same available in whole or in part
for business purposes; and (e) collect the rents, issues and profits arising
from the Mortgaged Premises, past due and thereafter becoming due, and apply the
same, in such order of priority as Mortgagee may determine, to the payment of
all charges and commissions incidental to the collection of rents and the
management of the Mortgaged Premises and all other sums or charges required to
be paid by Xxxxxxxxx hereunder. All moneys advanced by Mortgagee for the
purposes aforesaid and not repaid out of the rents collected shall immediately
and without demand be repaid by Mortgagor to Mortgagee, together with interest
thereon at the Taxable Rate, and shall be added to the principal indebtedness
hereby secured. The taking of possession and collection of rents by Mortgagee as
aforesaid shall not be construed to be an affirmation of any lease of the
Mortgaged Premises or any portion thereof, and Mortgagee or any other purchaser
at any foreclosure sale may (if otherwise entitled to do so) exercise the right
to terminate any such lease as though such taking of possession and collection
of rents had not occurred.
14. Releases and Extensions of Time. The granting of an extension or
extensions of time by Mortgagee with respect to the performance of any provision
of the Financing Agreements on the part of Mortgagor to be performed, or the
taking of any additional security, or the waiver by Mortgagee or failure by
Mortgagee to enforce any provision of the Financing Agreements or to declare a
default with respect thereto, shall not operate as a waiver of any subsequent
default or defaults or affect the right of Mortgagee to exercise all rights or
remedies stipulated herein and therein.
15. Restrictions on Transfers and Encumbrances. It is specifically
agreed and understood that Xxxxxxxxx shall not have the right to transfer the
benefit of the financing evidenced by the Financing Agreements and the interest
rate therein specified to any person acquiring title to the Mortgaged Property
from Mortgagor. Unless Mortgagee gives its prior consent in writing, it shall be
an Event of Default under this Mortgage if Mortgagor (a) transfers, or attempts
to transfer, directly or indirectly, voluntarily or by operation of law, all or
any part of the Mortgaged Property under and subject to this Mortgage, or (b)
further encumbers the Mortgaged Property, voluntarily or involuntarily,
including, without limitation, any lien junior or subordinate to the lien of
this Mortgage, and in any such event, the whole unpaid balance of the principal
indebtedness, together with all interest thereon and all other sums hereby
secured, shall, at Mortgagee's option, become due and payable immediately,
without notice.
16. Miscellaneous.
a. In the event that there is more than one party named herein
as Mortgagor, the word "Mortgagor" wherever occurring herein shall mean the
plural. The obligation of each and every party hereto, and also the authority
and powers conferred herein, shall be joint and several and shall inure to the
benefit of and bind each and every party hereto and its, his, her and their, and
each of their, respective heirs, executors, administrators, successors and
assigns.
b. Notices hereunder shall be in writing sent via registered
or certified mail, return receipt requested, or by express courier service
guarantying overnight delivery, addressed to the respective addresses
hereinabove set forth or to such other address as either party may hereafter
specify by written notice to the other.
c. This Mortgage may only be amended by an instrument in
writing signed by Xxxxxxxxx and Mortgagee.
d. This Mortgage shall be governed by and construed in
accordance with the laws of the State of Connecticut.
e. Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Financing Agreements, unless the
context clearly otherwise requires.
f. This Mortgage shall inure to the benefit of the parties
hereto and their respective successors and assigns, including any person
succeeding to the rights of the Mortgagee as the Owner of the Notes; provided,
however, that no assignment or purported assignment of any benefit of this
Mortgage by the Mortgagor, whether by contract or by operation of law, shall
relieve the Mortgagor of its obligations hereunder.
17. Open-End Mortgage. This Mortgage is an "Open-end Mortgage" for
the purposes of section 49-2(c) of the Connecticut General Statutes, as amended.
Subject to and upon the terms and conditions set forth in the Credit Agreement,
including the conditions precedent set forth in the Credit Agreement, including
the conditions precedent set forth in Articles 2 and 3 of the Credit Agreement,
Mortgagee may make future advances to Xxxxxxxxx. Any such advancements are made
pursuant to the Credit Agreement, which is a commercial revolving loan agreement
for the purposes of section 49-2(c) of the Connecticut General Statutes, as
amended. The maximum principal amount of the indebtedness authorized under the
Credit Agreement is up to Three Million Five Hundred Twenty Seven Thousand
Dollars ($3,527,000.00 in the aggregate to be outstanding at any time. Future
advances made under the Bridge Loan Note are due and payable in full on December
31, 1997 unless sooner due and payable pursuant to the provisions of the
Financing Agreements. Future advances made under the Term Loan Note are due and
payable in full on September 30, 2000 unless sooner due and payable pursuant to
the provisions of the Financing Agreements. Future advances made under the Line
of Credit Note are due and payable in full upon written demand of Mortgagee
unless sooner due and payable pursuant to the provisions of the Financing
Agreements. Xxxxxxxxx represents that it is a Delaware corporation, organized
for profit and engaged primarily in commercial, manufacturing or industrial
pursuits and that the indebtedness evidenced by the Notes entails advances of
all or part of the loan proceeds and repayments of all or part of the
outstanding balance of the indebtedness evidenced by the Notes from time to
time.
18. Waiver of Termination Rights. Xxxxxxxxx hereby waives, for
itself and any of its permitted assigns who assume this Mortgage, any and all
rights it or they may now or hereafter have under section 49-2(c)(7) of the
Connecticut General Statutes, as amended, or otherwise, to terminate or to
record a written notice terminating the right of Mortgagee to make "optional
future advances", as defined under said statutory section, secured by this
Mortgage or limiting such advances to not more than the amount actually advanced
at the time of the recording of such notice.
19. Prejudgment Remedy Waiver. XXXXXXXXX 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. XXXXXXXXX XXXXXX XXXXXX ALL RIGHTS TO NOTICE AND PRIOR COURT
HEARING OR COURT ORDER UNDER CHAPTER 903a OF THE 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, XXXXXXXXX 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.
XXXXXXXXX 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. XXXXXXXXX FURTHER HEREBY WAIVES ANY REQUIREMENT OR
OBLIGATION OF MORTGAGEE TO POST A BOND OR OTHER SECURITY IN CONNECTION WITH ANY
PREJUDGMENT REMEDY 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 PARTY PRIMARILY OR SECONDARILY LIABLE
UNDER ANY OF THE OTHER LOAN DOCUMENTS TO ANY ACTION BROUGHT BY MORTGAGEE.
XXXXXXXXX ACKNOWLEDGES AND AGREES THAT ALL OF THE WAIVERS CONTAINED IN THIS
PARAGRAPH HAVE BEEN MADE KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
INTELLIGENTLY, AND WITH THE ADVISE OF ITS COUNSEL.
20. Non-Merger. In the event Mortgagee shall acquire title to the
Mortgaged Property by conveyance from Mortgagor or as a result of the
foreclosure of this Mortgage, this Mortgage shall not merge in the fee estate of
the Mortgaged Property but shall remain and continue as an existing and
enforceable lien for the debt secured hereby until the same shall be released of
record by Mortgagee in writing.
IN WITNESS WHEREOF, the Mortgagor has caused these presents to be
duly executed, under seal, the day and year first above written.
Signed, Sealed and
Delivered in the
Presence of:
_______________________________________ SONICS & MATERIALS, INC.
_______________________________________ By:_______________________________
Name:
Title:
[CORPORATE SEAL]
STATE OF ________________ :
:
COUNTY OF _______________ :
On this, the ___ day of September, 1997, before me, the undersigned
officer, personally appeared ________________, who acknowledged himself/herself
to be the ______________ of SONICS & MATERIALS, INC., a Delaware corporation,
and that he/she, as such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the
respective names of such corporation, by himself/herself as such officer and as
the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunder set my hand and official seal.
[SEAL] Notary Public
My Commission Expires:
PHTRANS:168951_5.WP5
EXHIBIT A
Description of Mortgaged Premises
