EXHIBIT 10.45
MORTGAGE AND SECURITY AGREEMENT
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This MORTGAGE AND SECURITY AGREEMENT dated as of the 9th day of August,
1996, is from XXXXXX MACHINE CORPORATION, a Delaware corporation, having a
mailing address at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("MORTGAGOR"), to
AFFILIATED BUSINESS CREDIT CORPORATION, a Connecticut corporation having an
office at 00 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred
to as "MORTGAGEE").
WHEREAS Mortgagor is justly indebted to Mortgagee for the payment and
performance of the Obligations as defined below;
(S)1. GRANTING CLAUSE
NOW THIS INDENTURE WITNESSETH, that Mortgagor, in consideration of the
Obligations, and to secure the payment to Mortgagee of the principal with
interest, and all other sums provided for in the Obligations, and in this
Mortgage, according to their respective terms and conditions, and for
performance of the agreements, conditions, covenants, provisions and
stipulations contained herein and therein, and in certain other agreements and
instruments made and given or to be given by Mortgagor to Mortgagee in
connection therewith, including, without limitation, financing statements and
any assignment of rents and leases, does hereby grant, bargain, sell convey,
warrant, assign, transfer, mortgage, pledge and set over unto Mortgagee and its
successors and assigns with MORTGAGE COVENANTS all of the property described in
Schedule A attached hereto and incorporated herein by reference as if fully set
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out herein (the "PROPERTY").
(S)2. CERTAIN COVENANTS AND CONDITIONS
The Mortgagor covenants and agrees as follows.
(S)2.1. GOVERNMENTAL CHARGES.
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Mortgagor shall pay before the same become delinquent all taxes,
charges, sewer use fees, water rates and assessments of every name and
nature, whether or not assessed against Mortgagor, if applicable or related
to the Property, or any interest therein, or applicable or related to any
of the Obligations, which, if unpaid, shall by law become a lien or charge
upon all or any part of the Property; provided, however, that, so long as
no distraint, foreclosure sale or other levy upon or transfer with respect
to the Property or any part thereof shall have been effected or threatened,
and no Event of Default shall have occurred and be continuing, Mortgagor
shall not be required to pay any such taxes, charges, fees, rates and
assessments by reason of this (S)2.1 if (a) the amount, applicability or
validity thereof is currently being
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contested by Mortgagor in good faith by appropriate legal proceedings, (b)
Mortgagor shall have set aside on its books reserves (segregated to the
extent required by sound accounting principles and practices) reasonably
deemed by Mortgagee to be adequate with respect hereto and (c) Mortgagor
shall have provided to the Mortgagee a bond or other security of such
nature and in such amount as Mortgagee deems sufficient as security for
payment thereof.
(S)2.2. HAZARD AND OTHER INSURANCE.
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(a) Mortgagor, at its expense, shall procure and maintain for the
benefit of Mortgagor and Mortgagee, insurance policies issued by such
insurance companies, in such amounts, in such form and substance, and
with such coverages, endorsements, deductibles, and expiration dates
as are acceptable to Mortgagee, providing the following types of
insurance covering the Property.
(i) "All Risks" property insurance (including broad form flood
(if required), broad form earthquake (if required) and
comprehensive boiler and machinery coverages) on the Improvements
and the Mortgagor's contents therein in an amount not less than
one hundred percent (100%) of the full replacement cost of the
Improvements and the Mortgagor's contents therein determined
annually by an insurer or qualified appraiser selected and paid
for by Mortgagor and acceptable to Mortgagee, with deductibles
not to exceed $5,000 for any one occurrence, with a replacement
cost coverage endorsement, an agreed amount endorsement, and, if
requested by Mortgagee, a contingent liability from operation of
building laws endorsement, a demolition cost endorsement and an
increased cost of construction endorsement in such amounts as
Mortgagee may require. Full replacement cost as used herein means
the cost of replacing the Improvements (exclusive of the cost of
excavations, foundations and footings below the lowest basement
floor) and the Mortgagor's contents therein without deduction for
physical depreciation thereof.
(ii) During the course of construction or repair of any
Improvements on the Property, the insurance required by clause
(i) above shall be written on a builders risk, completed value,
non-reporting form, meeting all of the terms required by clause
(i) above, covering the total value of work performed, materials,
equipment, machinery and supplies
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furnished, existing structures, and temporary structures being
erected on or near the Premises, including coverage against
collapse and damage during transit or while being stored off-
site, and containing a soft costs (including loss of rents)
coverage endorsement and a permission to occupy endorsement.
(iii) Flood insurance if at any time the improvements are located
in any federally designated "special hazard area" (including any
area having special flood, mudslide and/or flood-related erosion
hazards, and shown on a Flood Hazard Boundary Map or a Flood
Insurance Rate Map published by the Federal Emergency Management
Agency as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M or
E) and the broad form flood coverage required by clause (i) above
is not available, in an amount equal to the full replacement cost
or the maximum amount then available under the National Flood
Insurance Program.
(iv) Commercial general liability insurance against claims for
personal injury (to include, without limitation, bodily injury
and personal injury) and property damage liability, all on an
occurrence basis, if available, with such coverages as Mortgagee
may reasonably request (including, without limitation,
contractual liability coverage, completed operations coverage for
a period of two (2) years following completion of construction of
any improvements on the Property, and coverages equivalent to an
ISO broad form endorsement), with a general aggregate limit of
not less than $1,000,000, a completed operations aggregate limit
of not less than $1,000,000, and a combined single "per
occurrence" limit of not less than $1,000,000 for bodily injury,
property damage and medical payments.
(v) During the course of construction or repair of any
improvements on the Property, owner's contingent or protective
liability insurance covering claims not covered by or under the
terms or provisions of the insurance required by clause (v)
above.
(vi) Employers liability insurance.
(vii) Worker's compensation insurance for all employees of
Mortgagor engaged on or with respect to the Property.
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(viii) Such other insurance in such form and in such amounts as
may from time to time be reasonably required by Mortgagee against
other insurable hazards and casualties which at the time are
commonly insured against in the case of properties of similar
character and location to the Property.
Mortgagor shall pay all premiums on insurance policies. The
insurance policies provided for in clauses (v), (vi) and (viii) above
shall name Mortgagee as an additional insured and shall contain a
cross liability/severability endorsement. The insurance policies
provided for in clauses (i), (ii), (iii) and (iv) above shall name
Mortgagee as mortgagee and loss payee, shall be first payable in case
of loss to Mortgagee, and shall contain mortgage clauses and lender's
loss payable endorsements in form and substance acceptable to
Mortgagee. Mortgagor shall deliver duplicate originals or certified
copies of all such policies to Mortgagee, and Mortgagor shall promptly
furnish to Mortgagee all renewal notices and all receipts of paid
premiums. At least thirty (30) days prior to the expiration date of
the policies, Mortgagor shall deliver to Mortgagee evidence reasonable
satisfactory to Mortgagee that all such policies have been renewed,
duplicate originals or certified copies of renewal policies in form
satisfactory to Mortgagee.
(b) All policies of insurance required by this Mortgage shall
contain clauses or endorsements to the effect that (i) no act or
omission of either Mortgagor or anyone acting for Mortgagor
(including, without limitation, any representations made by Mortgagor
in the procurement of such insurance), which might otherwise result in
a forfeiture of such insurance or any part thereof, no occupancy or
use of the Property of purposes more hazardous than permitted by the
terms of the policy, and no foreclosure or any other change in title
to the Property or any part thereof, shall affect the validity or
enforceability of such insurance insofar as Mortgagee is concerned,
(ii) the insurer waives any right of setoff, counterclaim,
subrogation, or any deduction in respect of any liability of Mortgagor
and Mortgagee, (iii) such insurance is primary and without right of
contribution from any other insurance which may be available, (iv)
such policies shall not be modified, cancelled or terminated without
the insurer thereunder giving at least thirty (30) days prior written
notice to Mortgagee by certified or registered mail, and (v) Mortgagee
shall not be liable for any premiums thereon or subject to any
assessments thereunder, and shall in all events be in amounts
sufficient to avoid any coinsurance liability; provided, however, that
Mortgagor shall not be liable for
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any failure of the insurance company (ies) to do anything required by
it under such policy.
(c) The insurance required by this Mortgage may be effected through a
blanket policy or policies covering additional locations and property
of Mortgagor not included in the Property, provided that such blanket
policy or policies comply with all of the terms and provisions of this
(S)2.2 and contain endorsements or clauses assuring that any claim
recovery will not be less than that which a separate policy would
provide, including, without limitation, a priority claim endorsement
in the case of property insurance and an aggregate limits of insurance
per location endorsement in the case of liability insurance.
(d) All policies of insurance required by this Mortgage shall be
issued by companies licensed to do business in the State where the
policy is issued and also in the Commonwealth of Massachusetts and
having a rating in Best's Key Rating Guide of at least "A" and a
financial size category of at least "VIII".
(e) Mortgagor shall not carry separate insurance, concurrent in kind
or form or contributing in the event of loss, with any insurance
required under this Mortgage unless such insurance complies with the
terms and provisions of this (S)2.2.
(f) In the event of any loss or damage to the Property, Mortgagor
shall give immediate written notice to the insurance carrier and
Mortgagee. Mortgagor hereby irrevocably authorizes and empowers
Mortgagee, at Mortgagee's option and in Mortgagee's sole discretion,
as attorney in fact for Mortgagor, to make proof of such loss, to
adjust and compromise any claim under insurance policies, to appear in
and prosecute any action arising from such insurance policies, to
collect and receive insurance proceeds, and to deduct therefrom
Mortgagee's expenses incurred in the collection of such proceeds,
provided, however, that so long as Mortgagee has not made demand for
payment of any of the Obligations and no Event of Default has occurred
and shall be continuing, Mortgagor shall be entitled to utilize any
insurance proceeds to repair, replace or rebuild any of the Property.
If the Property is sold or the Property is acquired by Mortgagee, all
right, title and interest of Mortgagor in and to any insurance
policies and unearned premiums thereon and in and to the proceeds
thereof resulting from loss or damage to the Property prior to the
sale or acquisition shall pass to Mortgagee
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or any other successor in interest to Mortgagor or purchaser or
grantor of the Property.
(S)2.3. CASUALTIES AND TAKING.
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All proceeds of any property or casualty insurance or awards of
damages on account of any taking or condemnation for public use of or
injury to the Property shall be paid to the Mortgagee. In the case of a
casualty loss, or taking, the Mortgagee may, in its sole discretion, apply
such proceeds to or toward the Obligations or release to Mortgagor such
portion of the proceeds paid to it as Mortgagee shall in its sole
discretion determine to be necessary and appropriate for the repair or
restoration of that part of the Property so damaged by such casualty loss
or remaining after such taking, such proceeds to be advanced in accordance
with and subject to the requirements of Mortgagee's usual procedures for
funding construction advances and to be applied to the cost of repairing
and restoring the Property or the remaining portion thereof, with any
balance remaining to be applied to or toward the Obligations, provided,
however, that, so long as Mortgagee has not made demand for payment of any
of the Obligations and no Event of Default has occurred, the Mortgagee
shall release to Mortgagor any such proceeds to be applied by Mortgagor in
accordance with the terms hereof.
(S)2.4. LEASES; ASSIGNMENTS; SUBORDINATION.
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Except to the extent expressly permitted pursuant to the Loan
Agreement, Mortgagor shall not lease the Property or any part thereof
without the prior written consent of the Mortgagee. If Mortgagee shall
consent and Mortgagor shall enter into a lease, Mortgagor shall faithfully
keep, observe and satisfy all the obligations on the part of the lessor to
be kept, performed and satisfied under every lease from time to time in
force with reference to the Property, and shall not alter or terminate any
such lease, or any guarantee of such lease, or accept any rentals for more
than one month in advance. As part of the consideration for the
Obligations, Mortgagor has absolutely and unconditionally assigned and
transferred to Mortgagee all of Mortgagor's right, title and interest in
and to the leases of the Property and the rents and profits therefrom,
provided, that Mortgagor shall be entitled to retain such rents and profits
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as trustee for the benefit of Mortgagee until an Event of Default shall
have occurred. Mortgagee shall have no obligations or liabilities to
tenants under any such leases unless and until the Mortgagee takes actual
possession of the Property after the occurrence and during the continuance
of an Event of Default, in which case the obligations of the Mortgagee will
be limited to those arising after the Mortgagee takes possession of the
Property. Until Mortgagee has taken possession or has given Mortgagor
notice of termination of any such rights the Mortgagor may exercise all
rights of landlord under such leases
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except as expressly limited hereunder or under the other Security
Documents. At any time on notice from the Mortgagee, Mortgagor shall submit
to the Mortgagee for examination all such leases. The Mortgagee shall have
the right, by the execution of suitable written instruments from time to
time, to subordinate this Mortgage, and the rights of the Mortgagee
hereunder, to any lease or leases from time to time in force with reference
to the Property, and, on the execution of any such instrument, this
Mortgage shall be subordinate to the lease for which such subordination is
applicable with the same force and effect as if such lease had been
executed and delivered, and a notice thereof recorded to the extent
required to give notice to third persons, prior to the execution, delivery
and recording of this Mortgage.
(S)2.5. ENCUMBRANCES.
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Mortgagor shall not create or permit to be created or permit to exist
any encumbrance on the Property (other than any lien for property taxes not
yet due and payable and the Permitted Encumbrances) even if such
encumbrance is inferior to this Mortgage, without the prior express written
consent of Mortgagee.
(S)2.6. TRANSFERS OF OWNERSHIP.
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Mortgagor shall not sell or permit any transfer of any interest in
the Property, or any part thereof, without the prior express written
consent of Mortgagee.
(S)2.7. EXPENSES.
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Mortgagor shall pay when due all fees and charges (including
reasonable attorneys' fees) incurred by the Mortgagee incident to the
transactions evidenced by the Obligations and secured by this Mortgage, the
assurance of the security represented by this Mortgage, and incident to the
enforcement of the Obligations and this Mortgage, including without
limitation, all filing, registration, recording, search, appraisal and
information fees, all title insurance premiums, all transfer taxes and
expenses incident to the execution and acknowledgment of this Mortgage and
all other documents securing the Obligations, and all federal, state,
county, municipal and other taxes, duties, stamps, imposts, assessments and
charges arising out of or in connection with the execution and delivery of
this Mortgage and the instruments evidencing the Obligations. Such fees
and charges shall be secured by the lien of this Mortgage and shall accrue
interest at the rates set forth in the Notes.
(S)2.8. PRIORITY OF LIEN; AFTER-ACQUIRED PROPERTY.
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This Mortgage is and will be maintained as a valid mortgage lien on
the Property subject only to the Permitted Encumbrances. All property of
every kind acquired by the Mortgagor after the date hereof which, by the
terms hereof, is required or intended to be subjected to the lien of this
Mortgage shall, immediately upon the acquisition thereof by the
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Mortgagor, and without any further mortgage, conveyance, assignment or
transfer, become subject to the lien of this Mortgage. The Mortgagor will
do, execute, acknowledge and deliver all and every such further
conveyances, mortgages, and assurances as the Mortgagee shall reasonably
require for accomplishing the purposes of this Mortgage. If any action or
proceeding shall be instituted to recover possession of the Property or for
the foreclosure of any other mortgage or for any other purpose affecting
the Property or this Mortgage, the Mortgagor will immediately, upon service
thereof on or by the Mortgagor, deliver to the Mortgagee a true copy of
each precept, petition, summons, complaint, notice of motion, order to show
cause, and all other process, pleadings and papers, however designated,
served in any such action or proceeding.
(S)2.9. WAIVER AND MODIFICATION.
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Whether or not for additional interest or other consideration paid or
payable to the Mortgagee, no forbearance on the part of the Mortgagee or
extension of the time for the payment of the whole or any part of the
Obligations secured hereby, whether oral or in writing, or any other
indulgence given by the Mortgagee to Mortgagor or to any other party
claiming any interest in or to the Property, shall operate to release or in
any manner affect the original liability of Mortgagor, or the priority of
this Mortgage or to limit, prejudice or impair any right of the Mortgagee,
including, without limitation, the right to realize upon the security, or
any part thereof, for the Obligations secured hereby or any of them, notice
of any such extension, forbearance or indulgence being hereby waived by
Mortgagor and all those claiming by, through or under Mortgagor. No
consent or waiver, express or implied, by the Mortgagee to or of any
default by Mortgagor shall be construed as a consent or waiver to or of any
further default in the same or any other term, condition, covenant or
provision of this Mortgage or of the Obligations secured hereby.
(S)2.10. FIXTURES AND EQUIPMENT; FINANCING STATEMENT.
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This Mortgage constitutes a security agreement under the Uniform
Commercial Code, and Mortgagor hereby grants to the Mortgagee to secure the
payment and performance of the Obligations and also to secure the
performance of all agreements and covenants herein contained, a security
interest in all fixtures, Building Service Equipment and any other property
included in the Property, now owned or hereafter acquired by Mortgagor,
which might otherwise be deemed "personal property" (and all accessions
thereto and the proceeds thereof). The Mortgagor covenants and agrees that
upon the subsequent acquisition of fixtures or Building Service Equipment,
it will provide to the Mortgagee such further assurances as may be required
by the Mortgagee to establish the Mortgagee's first and prior security
interest in such fixtures and Building
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Service Equipment. IT IS INTENDED BY MORTGAGOR AND THE MORTGAGEE THAT THIS
MORTGAGE BE EFFECTIVE AS A FINANCING STATEMENT FILED WITH THE REAL ESTATE
RECORDS AS A FIXTURE FILING. Mortgagor shall execute, deliver and cause to
be recorded and filed from time to time with all necessary public offices,
at Mortgagor's sole cost and expense, continuances and such other
instruments as will maintain the Mortgagee's priority of security in all
fixtures and Building Service Equipment. The names and addresses of the
Mortgagor and the Mortgagee from which information concerning the security
interest may be obtained are set forth in Section 5.1 hereof.
(S)3. DEFAULT AND REMEDIES
(S)3.1. DEFAULT; ACCELERATION OF OBLIGATIONS.
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If an Event of Default shall occur and be continuing the Mortgagee
may exercise any and all remedies provided under this Mortgage, under the
Notes, and under any and all other instruments and documents providing
security for the Obligations, or any other remedies available under
applicable law or any one or more of such remedies.
(S)3.2. STATUTORY CONDITION AND STATUTORY POWER OF SALE; OTHER
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REMEDIES.
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This Mortgage is upon the STATUTORY CONDITION and upon the further
condition that all covenants and agreements on the part of the Mortgagor
herein undertaken shall be kept and fully and timely performed and that no
breach of any of the covenants or conditions specified in this Mortgage
shall be permitted for any breach of which, upon the occurrence and during
the continuance of an Event of Default, the Mortgagee shall have the
STATUTORY POWER OF SALE together with all other remedies now or hereafter
permitted by law. Such remedies shall include the right to collect and
receive the rents and profits from the leases of the Property assigned to
the Mortgagee. Mortgagor agrees that neither the prior assignment of the
leases to Mortgagee nor the exercise of any of Mortgagee's rights and
remedies shall be deemed to make Mortgagee a mortgagee-in-possession or
otherwise responsible or liable in any manner with respect to the leases
the Property or the use, occupancy, enjoyment or operation of all or any
portion thereof, unless and until Mortgagee, in person or by agent, assumes
actual possession thereof. No remedy herein conferred on the Mortgagee is
intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing.
(S)3.3. RIGHT OF MORTGAGEE TO CURE AN EVENT OF DEFAULT.
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If an Event of Default shall have occurred and be continuing, the
Mortgagee
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shall have the right, but without any obligation so to do, to cure such
default for the account of the Mortgagor and to make any payment or take
any action necessary to effect such cure. Without limiting the generality
of the foregoing, the Mortgagor hereby authorizes the Mortgagee to pay all
taxes, sewer use fees, water rates and assessments, with interest, costs
and charges accrued thereon, which may at any time be a lien upon the
Property, or any part thereof; to pay the premiums for any insurance
required hereunder; to incur and pay reasonable expenses in protecting its
rights hereunder and the security hereby granted; and to pay any balance
due under any security agreement on any fixtures and equipment included as
a part of the Property under financing arrangements; and the payment of all
amounts so incurred shall be secured hereby as fully and effectually as any
other obligation of the Mortgagor secured hereby. If Mortgagee shall make
any payment or take action in accordance with this section, Mortgagee will
give to Mortgagor written notice of the making of any such payment or the
taking of any such action. In any such event, Mortgagee and any person
designated by the Mortgagee shall have, and is hereby granted, the right to
enter upon the demised premises at reasonable times and from any time and
from time to time for the purpose of taking any such action, and all monies
expended by Mortgagee in connection therewith (including, but not limited
to, reasonable legal expenses and disbursements), together with interest
thereon at an annual rate of interest equal to the rate applicable to
overdue payments under the Notes (or the highest rate permitted by law,
whichever shall be less), from the date of each such expenditure, shall be
paid by Mortgagor to Mortgagee forthwith upon demand by Mortgagee, and
shall be secured by this Mortgage, and Mortgagee shall have, in addition to
any other right or remedy of Mortgagee, the same rights and remedies in the
event of nonpayment of any such sums by Mortgagor as in the case of a
default by Mortgagor in the payment of any installment of principal or
interest due and payable under the Notes.
(S)3.4. RECEIVER.
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Upon the occurrence of an Event of Default, or any actual or
threatened waste to all or any part of the Property, or at any time while a
suit is pending to foreclose or reform this Mortgage or to enforce any
provision hereof, Mortgagee shall have the right to apply for the
appointment of a receiver of all or any part of the Property and the rents
and profits thereof, and such receiver shall have all the broad and
effective functions and powers anywhere entrusted by a court to a receiver.
Mortgagee shall be entitled to the appointment of such receiver forthwith
as a matter of absolute right, without regard to the adequacy or inadequacy
of the value of the Property or the solvency or insolvency of Mortgagor or
any other defendant, and Mortgagor hereby waives any right to object to the
appointment of such receiver and expressly consents
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thereto. The income, profits, rents, issues and revenues from the Property
shall be applied by such receiver according to the provisions of this
Mortgage and the practice of the court appointing such receiver.
(S)3.5. CERTAIN TERMS OF FORECLOSURE SALE.
---------------------------------
At any foreclosure sale, any combination, or all, of the Property or
security given to secure the indebtedness secured hereby, may be offered
for sale for one total price, and the proceeds of such sale accounted for
in one account without distinction between the items of security or without
assigning to them any proportion of such proceeds, the Mortgagor hereby
waiving the application of any doctrine of marshalling; and, in case the
Mortgagee, in the exercise of the power of sale herein given, elects to
sell in parts or parcels, said sales may be held from time to time, and the
power shall not be fully executed until all of the property or security not
previously sold shall have been sold.
(S)3.6. UNIFORM COMMERCIAL CODE.
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If the provisions of the Uniform Commercial Code as adopted in
Massachusetts are applicable to any property or security given to secure
the indebtedness secured hereby which is sold in combination with or as a
part of the Property, or any part thereof, at one or more foreclosure
sales, any notice required under such provisions shall be fully satisfied
by the notice given in execution of the Statutory Power of Sale (described
to below) with respect to the Property or any part thereof.
(S)4. DEFINITIONS
The following terms as used herein shall have the following meanings:
"Building Service Equipment" shall mean all apparatus, fixtures and
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articles of personal property owned by the Mortgagor now or hereafter
attached to or used or procured for use in connection with the operation or
maintenance of any building, structure or other improvement located on or
included in the Property, including, but without limiting the generality of
the foregoing, all engines, furnaces, boilers, stokers, pumps, heaters,
tanks, dynamos, motors, generators, switchboards, electrical equipment,
heating, plumbing, lifting and ventilating apparatus, air-cooling and air-
conditioning apparatus, gas and electric fixtures, elevators, escalators,
fittings, and machinery and all other equipment of every kind and
description, used or procured for use in the operation of the building
standing on the mortgaged Property (except apparatus, fixtures or articles
of personal property belonging to lessees or other occupants of such
building or to persons other than the Mortgagor unless the same be
abandoned by any such lessee or other occupant or person), together with
any and all replacements thereof and additions thereto.
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"Default" shall mean any event which, with the giving of notice or the
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lapse of time, or both, would become an Event of Default.
"Event of Default" shall mean (a) any Event of Default under the Loan
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Agreement, as defined therein, or (b) any default in the payment or
performance of the obligations of the Mortgagor hereunder, or (c) any
representation or warranty of the Mortgagor hereunder proving to be untrue
in any material respect or (d) any default in the performance of the
obligations of the Mortgagor under any of the Loan Documents.
"Improvements" shall mean all buildings, structures and other
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improvements located on the Premises.
"Loan Agreement" shall mean the Commercial Revolving Loan, Term Loan
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and Security Agreement between Mortgagor and Mortgagee dated as of the date
hereof (the "LOAN AGREEMENT").
"Loan Documents" shall mean this Mortgage, the Loan Agreement, the
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Notes and any other agreements, documents or instruments now or hereafter
executed in connection therewith, including but not limited to any
assignment of leases and rents and any indemnity agreement regarding
hazardous materials.
"Mortgage" See page 1 of this instrument.
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"Mortgagee" shall mean the Mortgagee named at the beginning of this
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instrument, and any subsequent holder or holders of this Mortgage.
"Mortgagor" shall mean the person or persons named at the beginning of
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this instrument as the Mortgagor, and any subsequent owner or owners of the
equity of redemption of the Property.
"Notes" shall mean the Revolving Promissory Note in the original
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principal amount of up to $1,500,000 and the Term Promissory Note in the
original principal amount of $1,135,000, both from the Mortgagor and Memry
Corporation to the Mortgagee and both dated the date hereof, as originally
executed, or if varied, extended, supplemented, consolidated, amended or
restated from time to time as so varied, extended, supplemented,
consolidated, amended or restated.
"Obligations" shall mean any and all indebtedness, obligations and
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liabilities of Mortgagor to Mortgagee existing on the date hereof or
arising or incurred hereafter under the Loan Agreement, the Notes, any
other Loan Documents, or other instruments at any time evidencing any
thereof, and any and all other indebtedness, obligations and liabilities of
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Mortgagor to Mortgagee however incurred, now existing or hereafter coming
into existence, whether individually or collectively, direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated
or unliquidated, secured or unsecured, arising thereunder or hereunder by
contract, operation of law or otherwise.
"Permitted Encumbrances" shall mean the encumbrances listed on
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Schedule B to the title insurance policy delivered to the Mortgagor in
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connection herewith.
"Premises" shall have the meaning assigned to that term in Schedule B
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hereto, which is incorporated herein by reference as if fully set forth
herein.
"Property" shall have the meaning set forth in Schedule A to this
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Mortgage.
(S)5. MISCELLANEOUS
(S)5.1. NOTICES.
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All notices, requests and other communications hereunder shall be
made in writing and delivered in hand or mailed by first-class mail,
postage prepaid, or sent by commercial overnight courier delivery service,
charges prepaid, or sent by telex, telecopier or hand delivery, addressed
as follows:
(a) If to Mortgagor:
Xxxxxx Machine Corporation
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
with a copy to:
Memry Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
(b) If to Mortgagee:
Affiliated Business Credit Corporation
00 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
-14-
Any such notice shall be deemed to have been given when delivered in
hand to an officer of the addressee, or one (1) day after being delivered
to a commercial overnight courier delivery service, charges prepaid, for
next day delivery, or when deposited in the United States mails, registered
or certified mail, postage prepaid, and, in each case addressed as provided
above or to such other address as the party to whom such communication is
being sent shall have notified the other party hereto (in the manner
specified herein) to be its address for purposes of this Mortgage.
(S)5.2. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY; PARTIAL
------------------------------------------------------------
INVALIDITY.
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All the covenants and agreements of the Mortgagor herein contained
shall be binding upon the Mortgagor and the successors and assigns of the
Mortgagor. In case any one or more of the provisions of this Mortgage may
be found to be invalid, or unenforceable for any reason or in any respect,
such invalidity or unenforceability shall not limit or impair enforcement
of any other provision thereof.
(S)5.3. MODIFICATION.
------------
No change, amendment, modification, cancellation or discharge of this
Mortgage, or any part hereof, shall be valid unless in writing and signed
by the parties hereto or their respective successors and assigns.
(S)5.4. CAPTIONS.
--------
Section headings are inserted for convenience of reference only, do
not form part of this Mortgage and shall be disregarded for purposes of the
interpretation of the terms of this Mortgage.
(S)5.5. GOVERNING LAW.
-------------
This Mortgage shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
-15-
IN WITNESS WHEREOF, this Mortgage and Security Agreement has been executed as a
sealed instrument this 9th day of August, 1996.
XXXXXX MACHINE CORPORATION
/s/ Xxxxx Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------ -------------------------
Xxxxx Xxxxxxxxxxx Xxxxx X. Xxxxx
Its President
/s/ Xxxxx X. Xxxxx Duly Authorized
------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------ -------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx Its Secretary
------------------------ Duly Authorized
-00-
XXXXX XX XXXXXXXXXXX )
) ss: Hartford
COUNTY OF HARTFORD )
On this the 9th day of August, 1996 before me, Xxxx X. Xxxxx, the
undersigned officer, personally appeared Xxxxx X. Xxxxx, who acknowledged
himself to be the President of Xxxxxx Machine Corporation, a corporation and
that he as such President, being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as such President and as his/her and its free act and
deed.
In witness whereof I hereunto set my hand.
/s/ Xxxx X. Xxxxx
--------------------------
Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
) ss: Hartford
COUNTY OF HARTFORD )
On this the 9th day of August, 1996 before me, Xxxxxxx Xxxxx, the
undersigned officer, personally appeared Xxxxx X. Xxxxxxxx, who acknowledged
him/herself to be the Secretary of Xxxxxx Machine Corporation, a corporation and
that he/she as such Secretary, being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by him/herself as such Secretary and as his/her and its free act and
deed.
In witness whereof I hereunto set my hand.
/s/ Xxxxxxx Xxxxx
-----------------------------
Notary Public
My Commission Expires:
SCHEDULE A
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(a) All that certain tract or parcel of land more particularly described
and set forth in Schedule B attached hereto and made a part hereof (the
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"PREMISES"):
(b) All and singular the tenements, hereditaments, easements,
appurtenances, passages (and all waters, water courses and riparian rights, if
any), pipes, conduits, electrical and other utility lines, other rights,
liberties and privileges thereof or in any way now or hereafter appertaining to
the Premises, including any other claim at law or in equity as well as any after
acquired title, franchise or license and the reversion and reversions and
remainder and remainders thereof, and all of the estate, right, title, claim or
Term whatsoever of Mortgagor therein and in the streets, ways and areas adjacent
thereto:
(c) All buildings and other improvements of every kind and description now
or hereafter erected or placed on the Premises or any part thereof owned by the
Mortgagor, and all of the right, title and interest of Mortgagor in and to all
materials intended for construction, reconstruction, alteration and repairs of
such improvements now or hereafter erected thereon, all of which materials shall
be deemed to be included within the Premises immediately upon the delivery
thereof to the Premises, and all fixtures, Building Service Equipment, and all
renewals or replacements thereof or articles in substitution therefor; it being
mutually agreed that all the aforesaid property owned or to be owned by
Mortgagor and placed by it on the Premises and such buildings and improvements
shall, so far as permitted by law, be deemed to be affixed thereto and covered
by this Mortgage;
(d) All of the estate, right, title and interest now owned or hereafter
acquired by Mortgagor in and to any and all sidewalks and alleys, and all strips
and gores of land, adjacent to or in connection with the Premises;
(e) All present and future leases and licenses of space in the buildings
and improvements now or hereafter erected on the Premises (collectively
"LEASES", and individually a "LEASE") and the rents, revenues, income, issues
and profits thereunder subject, however, to the right of Mortgagor to receive
and use the same and to exercise all rights and privileges as landlord under all
of the leases until an Event of Default shall have occurred and be continuing
under this Mortgage, together with all the rights and privileges of the
Mortgagor as landlord thereunder;
(f) All unearned premiums accrued, accruing or to accrue under any and all
insurance policies now or hereafter obtained by the Mortgagor pursuant to the
provisions of the Mortgage;
-2-
(g) All proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or liquidated claims, including, but without limitation,
proceeds of insurance provided for in this Mortgage and proceeds of condemnation
awards and awards for restriction of access to, or change of grade of, streets;
(h) All transferable building service, building maintenance, construction,
management and other similar agreements and contracts, written or oral, express
or implied, now or hereafter entered into arising or in any manner related to
the construction, design, improvement, use, operation, occupation, enjoyment,
sale, conversion or other disposition (voluntary or involuntary) of the
Premises, or the buildings and improvements now or hereafter located thereon, or
any other interest in the Premises, or any combination thereof, including all
property management agreements, sales contracts, contract deposits, xxxxxxx
money deposits, prepaid items and payments due and to become due thereunder, and
further including all payment and performance bonds, construction guaranties,
warranties, construction contracts, architects agreements, general contract
agreements, design agreements, engineering agreements technical service
agreements, architectural plans and specifications, sewer and water and other
utility agreements, permits, approvals, licenses, building permits, service
contracts, advertising contracts, purchase orders and equipment leases; and
(i) All proceeds and products of the foregoing of every type.
All of the foregoing described property, rights, privileges, interests and
franchises more particularly described in paragraphs (a) through (i) above
herein granted are intended to be, and are collectively referred to herein as,
the "Property."
SCHEDULE B
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[LEGAL DESCRIPTION OF PREMISES]
Intentionally Omitted
