Exhibit 99.11
COMMERCIAL REAL ESTATE MORTGAGE
AND SECURITY AGREEMENT
THIS COMMERCIAL REAL ESTATE MORTGAGE AND SECURITY AGREEMENT (as
amended from time to time, this "Mortgage"), is made this 29th day
of September, 1999, by and from PITTSFIELD MOLD & TOOL, INC., a
Massachusetts corporation, which has its principal place of
business at Stearnsville Industrial Park 00 XXXXX Xxxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Mortgagor"), to the
XXXXXXXX FAMILY NOMINEE TRUST, under Declaration of Trust, dated
February 6, 1996 and recorded with the Berkshire County (District)
Registry of Deeds in Book 910, Page 800, having its principal
xxxxxx xx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Bank");
1. Mortgage, Obligations and Future Advances
1.1 Mortgage. For valuable consideration paid, the receipt and
sufficiency of which is hereby acknowledged, Mortgagor hereby
grants to the Bank, with MORTGAGE COVENANTS, the "Property"
described in Section 1.4 below, to secure the prompt payment and
performance of any and all obligations of Mortgagor to the Bank,
whether direct or indirect, absolute or contingent, primary or
secondary, due or to become due, now existing or hereafter arising
or acquired, and whether arising out of this present transaction,
or a transaction separate and unrelated hereto (the "Obligations"),
including without limitation:
(a) all obligations under a Promissory Note of even date herewith
from Mortgagor payable to the order of the Bank in the original
principal amount of $1,750,000.00, as the same may be amended or
extended and under a Promissory Note of even date herewith from
Mortgagor payable to the order of the Bank in the original
principal amount of $2,200,000.00, as the same may be amended or
extended (collectively the "Note");
1.2 Security Interest in Personal Property. As continuing
security for the Obligations, Mortgagor hereby pledges assigns and
grants to the Bank a security interest in any of the Property (as
defined in Section 1.4 below) constituting personal property or
fixtures. This Mortgage shall be deemed to be a security agreement
and financing statement pursuant to the terms of the Uniform
Commercial Code of Massachusetts.
1.3 Collateral Assignment of Leases and Rents. Mortgagor hereby
assigns to the Bank as collateral security for the Obligations all
of Mortgagor's rights and benefits under any and all Leases (as
defined in Section 1.4 below) and any and all rents and other
amounts now or hereafter owing with respect to the Leases or the
use or occupancy of the Properties. This collateral assignment
shall be absolute and effective immediately, but Mortgage shall
continue to collect rents owing under the Leases until an Event of
Default (as defined in Section 6.1 below) occurs and the Bank
exercises its rights and remedies to collect such rents as set
forth in Section 6.2(c) hereof.
1.4 Property. The term "Property", as used in this Mortgage,
shall mean that certain parcel of land and the structures and
improvements now or hereafter thereon known as Stearnsville
Industrial Park, 00 XXXXX Xxxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 as more particularly described in Exhibit A
attached hereto, together with (i) all rights now or hereafter
existing, belonging or pertaining thereto (ii) all goods,
furniture, machinery, equipment, fixtures, accounts, contract
rights, documents, instruments, proceeds of insurance, general
intangibles and other items of personal property of Mortgagor or in
which it has an interest, now owned or hereafter acquired, that are
located on or used in connection with the Property and any
substitutions, replacements, accessions and proceeds of any of the
foregoing; (iii) all judgments, awards of damages and settlements
hereafter made as a result or in lieu of any Taking (as defined in
Section 3 hereof); (iv) all of the rights and benefits of Mortgagor
under any present or future leases or agreements relating to the
Property, or the use or occupancy thereof together with any
extensions and renewals thereof (the "Leases"); (v) all contracts,
permits and licenses respecting the use, operation or maintenance
of the Property.
1.5 Cross-Collateral. It is the express intention of Mortgagor
that this Mortgage secure payment and performance of all of the
Obligations. Notice of the continuing grant of this Mortgage shall
not be required to be stated on the face of any document evidencing
any of the Obligations, nor shall such documents be required to
otherwise specify that they are secured hereby.
2. Representations, Warranties, Covenants
2.1 Representations and Warranties. Mortgagor represents and
warrants that to its actual knowledge without any independent
investigation,
(a) (i) Mortgagor is a Massachusetts corporation, duly organized
and validly existing; (ii) Mortgagor has all requisite power to own
the Property and conduct its business as now conducted and as
presently contemplated, to execute and deliver this Mortgage and
convey the Property as contemplated hereby and to grant the
security interests and assignment of Leases contained herein; (iii)
the execution, delivery and performance of this Mortgage have been
authorized by all necessary proceedings of the Mortgagor and do not
contravene any provision of Mortgagor's charter or other
organizational documents or any law, rule or regulation applicable
to Mortgagor or any agreement, instrument, order or undertaking
binding on Mortgagor or by which the Property is bound or affected;
(iv) this Mortgage has been duly executed and delivered by
Mortgagor and is the legal, valid and binding obligation of
Mortgagor enforceable in accordance with its terms except as
limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights
generally;
(b) Mortgagor is the sole legal and equitable owner of the
Property, holding good and marketable fee simple title to the
Property, subject to no liens, encumbrances, leases, security
interests or rights of others other than as set forth in detail in
Exhibit B hereto (the "Permitted Encumbrances");
(c) As of the date hereof, there are no Hazardous Substances (as
defined in Section 2.3(b) hereof) in, on or under the Property;
and
(d) In making such representations and warranties, Mortgagor may
rely on sellers' representations and warranties in that certain
Stock Purchase Agreement between Bank and others (as Sellers) and
Mortgagor.
2.2 Recording; Further Assurances. Mortgagor covenants that it
shall at all times comply with all statutes and regulations, as may
be required by law in order to establish, preserve and protect the
interest of the Bank in the Property and the rights of the Bank
under this Mortgage. Upon the written request of the Bank,
Mortgagor will promptly execute and deliver such further instru-
ments and documents and take such further actions as the Bank may
reasonably deem desirable to obtain the full benefits of this
Mortgage and of the rights and powers herein granted, including,
without limitation, filing financing statements under the Uniform
Commercial Code and obtaining any consents or estoppel certificates
of lessees under the Leases that the Bank deems appropriate. Mort-
gagor authorizes the Bank to file a copy of this Agreement in lieu
of a financing statement.
3. Takings
In case of any condemnation for public use of, or any damage by
reason of the action of any public or governmental entity or
authority to, all or any part of the Property (a "Taking"), or the
commencement of any proceedings or negotiations that might result
in a Taking, the Bank may, at its option, appear in any proceeding
for a Taking or any negotiations relating to a Taking, and
Mortgagor shall give to the Bank copies of all notices, pleadings,
determinations and other papers relating thereto.
6. Defaults and Remedies
6.1 Event of Defaults. Each of the following events shall consti-
tute an "Event of Default" under this Mortgage:
(a) Failure by Mortgagor to make any payment of principal, interest
or other sums within five (5) days of when due under the Note or
this Mortgage or any other Obligation giving effect to any cure
period therein;
(b) Failure by Mortgagor to perform, observe or comply with any of
the covenants, agreements, terms or conditions set forth, or the
occurrence of a default under, this Mortgage, the Note, or any
other agreement, instrument or other document evidencing, securing
or otherwise delivered in connection with any Obligation, not cured
within twenty (20) days from written notice of the occurrence
thereof or any cure period contained therein, if any;
(c) "USC Default" as that term is defined per a certain Cross-
Default and Cross-Collateral Agreement of even date executed by
Mortgagor and Bank;
(d) "Change of Control". A Change of Control of Mortgagor shall be
deemed to have occurred if: (i) any "person" (as such term is used
in Section 13 (d) and 14 (d) (2) of the Securities Exchange Act of
1937, as amended) other than United Xxxxxxx Corporation ("USC")
becomes the beneficial owner, directly or indirectly, of securities
of Mortgagor representing more than fifty (50%) percent of the
aggregate voting power of all cases of Mortgagor then outstanding
voting securities; or (ii) the shareholder(s) of Mortgagor
approve(s) (A) a plan of merger, consolidation or share exchange
between Mortgagor and any person or entity other than a merger,
consolidation or other business combination with USC or with
another wholly-owned subsidiary of USC, or (B) a proposal with
respect to the sale, lease, exchange or other disposal of all, or
substantially all, of Mortgagor's property.
6.2 Remedies. On the occurrence of any Event of Default the Bank
may, at any time thereafter, at its option and, to the extent
permitted by applicable law, without notice, exercise any or all of
the following remedies:
(a) Declare the Obligations due and payable, and the Obligations
shall thereupon become immediately due and payable, without
presentment, protest, demand or notice of any kind, all of which
are hereby expressly waived by Mortgagor;
(b) Take possession of the Property (including all records and
documents pertaining thereto) and exclude Mortgagor therefrom, and
operate the Property as a mortgagee in possession with all the
powers as could be exercised by a receiver or as otherwise provided
herein or by applicable law;
(c) Receive and collect all rents, income and profits from the
Property, including as may arise under the Leases, and Mortgagor
appoints the Bank as its true and lawful attorney with the power
for the Bank in its own name and capacity to demand and collect
such rents, income and profits and take any action that Mortgagor
is authorized to take under the Leases. Lessees under the Leases
are hereby authorized and directed, following notice from the Bank,
to pay all amounts due Mortgagor under the Leases to the Bank,
whereupon such lessees shall be relieved of any and all duty and
obligation to Mortgagor with respect to such payments so made;
(d) Sell the Property or any part thereof or interest therein
pursuant to exercise of its STATUTORY POWER OF SALE or otherwise at
public auction on terms and conditions as the Bank may determine or
otherwise foreclose this Mortgage in any manner permitted by law,
and upon such sale, Mortgagor shall execute and deliver such
instruments as the Bank may request in order to convey and transfer
all of Mortgagor's interest in the Property, and the same shall
operate to divest all rights, title and interest of Mortgagor in
and to the Property. In the event this Mortgage shall include more
than one parcel of property or subdivision (each hereinafter called
a "portion"), the Bank shall, in its sole and exclusive discretion,
be empowered to foreclose upon any such portion without impairing
its right to foreclose subsequently upon any other portion or the
entirety of the Property from time to time thereafter;
(e) Cause one or more environmental assessments to be taken,
arrange for the clean-up of any Hazardous Substances, or otherwise
cure Mortgagor's failure to comply with any statute, regulation or
ordinance relating to the presence or clean-up of Hazardous
Substances; provided that the exercise of any of such remedies
shall not be deemed to have relieved Mortgagor from any
responsibility therefor or given the Bank "control" over the
Property or cause the Bank to be considered to be a mortgagee in
possession, "owner" or "operator" of the Property for purposes of
any applicable law, rule or regulation pertaining to Hazardous
Substances;
(f) Take such other actions or proceedings as the Bank deems
necessary or advisable to protect its interest in the Property and
ensure payment and performance of the Obligations including,
without limitation, appointment of a receiver (and Mortgagor hereby
waives any right to object to such appointment) and exercise of any
of the Bank's remedies provided in the Note or in any document
evidencing, securing or relating to any of the Obligations or
available to a secured party under the Uniform Commercial Code of
Massachusetts or under other applicable law;
(g) Obtain a release of the obligations of Xxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxxxxx under the Non-Competition Agreements;
(h) Prosecute the $250,000.00 letter of credit referred to at
Section 8.8 (i) of the Stock Purchase Agreement; and
(i) Xxxxxx X. Xxxxxxxx shall be entitled to a release of his
obligations under the Employment Agreement.
This Mortgage is upon the STATUTORY CONDITION, for any breach of
which the Bank shall have the STATUTORY POWER OF SALE and any other
remedies provided by applicable law including, without limitation,
the right to pursue a judicial sale of the Property or any portion
thereof by deed, assignment or otherwise. Mortgagor agrees and
acknowledges that the acceptance by the Bank of any payments from
Mortgagor after the occurrence of any Event of Default, the
exercise by the Bank of any remedy set forth herein or the
commencement of foreclosure proceedings against the Property shall
not waive the Bank's right to foreclose or operate as a bar or
estoppel to the exercise of any other rights or remedies of the
Bank. Mortgagor agrees and acknowledges that the Bank, by making
payments or incurring costs described herein, shall be subrogated
to any right of Mortgagor to seek reimbursement from any third
parties, including without limitation, any predecessor in interest
to Mortgagor's title or other party who may be responsible under
any law, regulation or ordinance relating to the presence or clean-
up of Hazardous Substances.
6.3 Cumulative Rights and Remedies. All of the foregoing rights,
remedies and options are cumulative and in addition to any rights
the Bank might otherwise have, whether at law or by agreement and
may be exercised separately or concurrently. Mortgagor further
agrees that the Bank may exercise any or all of its rights or
remedies set forth herein without having to pay Mortgagor any sums
for use or occupancy of the Property.
7. Miscellaneous
7.1 Payments by the Bank. To the extent permitted by applicable
law, Mortgagor shall pay to the Bank, on demand, all reasonable
expenses (including attorneys' fees and expenses and reasonable
consulting, accounting, appraisal, brokerage and similar
professional fees and charges) incurred by the Bank in connection
with the Bank's exercise, preservation or enforcement of any of its
rights, remedies and options set forth in this Mortgage (including
without limitation any amounts expended pursuant to Section 5.1 and
6.2(e) hereof) and in connection with any litigation, proceeding or
dispute whether arising hereunder or otherwise relating to the
Obligations, together with interest thereon to the extent permitted
by applicable law until paid in full by Mortgagor at a rate per
annum equal to the greater of 18% or four percent (4%) above the
prime rate of interest per annum as published from time to time by
The Wall Street Journal, provided such interest rate not exceed the
maximum amount permitted by law. Any amounts owed by Mortgagor
hereunder shall be, until paid, part of the Obligations, and the
Bank shall be entitled, to the extent permitted by law, to receive
and retain such amounts in any action for a deficiency against or
redemption by Mortgagor, or any accounting for the proceeds of a
foreclosure sale or of insurance proceeds. All references to
"attorneys" in this Section 7 and elsewhere in this Mortgage shall
include without limitation any attorney or law firm engaged by the
Bank and the Bank's in-house counsel, and all references to any
"fees and expenses" in this Mortgage shall include without
limitation any fees of such attorney or law firm and any allocated
charges and allocation costs of the Bank's in-house counsel. The
obligations of Mortgagor hereunder shall survive any payment or
satisfaction of any of the other Obligations.
7.2 No Waiver or Release. No failure of the Bank to exercise or
delay by the Bank in exercising, any right or remedy or option
provided for herein or otherwise shall be deemed to be a waiver of
that right, remedy or option or of any other right or option. No
sale of all or any part of the Property, no forbearance on the part
of the Bank, no release or partial release of any of the Property,
and no extension of the time for the payment of the whole or any
part of any of the Obligations or any other indulgence given by the
Bank to Mortgagor or any other person or entity, shall operate to
release or in any manner affect the lien of this Mortgage or the
original liability of the Mortgagor except to the extent
specifically provided in any written instrument signed by the Bank
accomplishing any of the foregoing. Notice of any such extensions
or indulgences is waived by Mortgagor. This Mortgage may not be
waived, changed or discharged orally, but only by an agreement in
writing signed by the Bank, and any oral waiver, change or
discharge of any provision of this Mortgage shall be without
authority and of no force and effect. A waiver on any one occasion
shall be limited to its express terms and conditions and the
circumstances giving rise to such waiver and shall not be construed
to be a bar to or waiver of any right on any future occasion.
7.3 Notices. Any demand upon or notice to Mortgagor hereunder
shall be effective when delivered by hand, properly deposited in
the mails postage prepaid, or sent by telex, answerback received,
or electronic facsimile transmission, receipt acknowledged, or
delivered to a telegraph company or overnight courier, in each case
addressed to Mortgagor to United Xxxxxxx Corporation, 000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxx 00000, or as it appears on the books
and records of the Bank. Demands or notices addressed to any other
address at which the Bank customarily communicates with Mortgagor
also shall be effective. Any notice by Mortgagor to the Bank shall
be given as aforesaid, addressed to the Bank c/o Mr. and Xxx. Xxxxx
X. Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 or such other
address the Bank may advise Mortgagor in writing.
7.4 Mortgagor's Waivers. Mortgagor waives presentment, demand,
notice, protest, and all other demands and notices in connection
with the delivery, acceptance, performance, default or enforcement
of this Mortgage (except for such demands and notices as are
specifically required to be provided to Mortgagor under this
Mortgage) and assents to any extension or postponement of the time
of payment or performance or any other indulgence with respect to
any of the Obligations, to any substitution, exchange or release of
any collateral for any of the Obligations and/or to the addition or
release of any other party or person primarily or secondarily
liable hereunder or in connection with any of the Obligations.
7.5 Entire Agreement; Severability; Captions. The terms and
conditions of this Mortgage constitute the entire agreement, and
supersede all prior agreements and understandings, both written and
oral, with respect to the subject matter hereof. The invalidity of
any provisions of this Mortgage shall in no way affect the validity
of any other provision. Each party signing this Mortgage submits to
personal jurisdiction in The Commonwealth of Massachusetts and
waives any and all rights to object to such jurisdiction. Each such
party agrees that service of process may be made and personal
jurisdiction obtained by serving Mortgagor at any location provided
in Section 7.6 hereof.
7.6 JURY WAIVER. THE MORTGAGEE (BY ITS ACCEPTANCE HEREOF) AND THE
MORTGAGOR AGREE THAT NEITHER OF THEM, NOR ANY ASSIGNEE OR SUCCESSOR
SHALL (A) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER ACTION BASED UPON, OR ARISING OUT OF,
THIS AGREEMENT, ANY RELATED INSTRUMENTS, ANY COLLATERAL OR THE
DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF THEM, OR (B)
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF
THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE MORTGAGEE AND THE
MORTGAGOR, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
EXECUTED under the seal as of the date first above written.
WITNESSES: BORROWER:
PITTSFIELD MOLD & TOOL, INC.
/s/ By: /s/ Xxxxxxx X. Xxxx, III
Xxxxxxx X. Xxxx, III
ITS: President
COMMONWEALTH OF MASSACHUSETTS
Berkshire, ss. September 29, 1999
Then personally appeared the above-named Xxxxxxx X. Xxxx, III,
President as aforesaid, and acknowledged the foregoing to be his
free act and deed and the free act and deed of the corporation,
before me,
__________________
Notary Public:
My Commission Expires:
EXHIBIT A
to
Commercial Real Estate Mortgage and Security Agreement
The land in Pittsfield, Berkshire County, Massachusetts, bounded
and described as follows:
Being Xxx X0-0-000 on a plan of land entitled "Building Lot Plan of
Stearnsville Business Park surveyed for BETNR Industrial
Development Corporation, Pittsfield, Massachusetts" prepared by SK
Design Group, Inc. dated March 1, 1996 and recorded with Berkshire
Middle District Registry of Deeds in Plat D, Plan No. 362 and
containing, according to said Plan, 6.97 acres of land.
SUBJECT TO the terms and conditions of a Declaration of Covenants
and Restrictions made by BETNR Industrial Development Corporation
by instrument dated March 27, 1996 and recorded with Berkshire
Middle District Registry of Deeds in Book 1509, Page 850 (the
"Declaration").
TOGETHER WITH, in common with the Grantor, its successors and
assigns, the easements reserved by Grantor in the First 100-Foot
Buffer-Zone (as defined in the Declaration) and the right to
enforce such Easements.
TOGETHER WITH the benefit of three water line easements granted to
BETNR by:
1. Xxxxxxxx Xxxxxxx, Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx, as they
are Trustees of Cobblestone Cove Nominee Trust, dated May 29, 1996
and recorded with said Registry in Book 1517, Page 210.
2. Xxxxx X. Xxxxxxx, as he is Trustee of Xxxx Development Nominee
Trust, dated May 29, 1996 and recorded with said Registry in Book
1517, Page 214.
3. Xxxxxx X. Xxxxx, as he is Trustee of Xxxxxx Road Nominee Trust,
dated October 15, 1996 and recorded with said Registry in Book
1534, Page 128.
SUBJECT TO the terms of and TOGETHER WITH the benefit of a 100 foot
building construction buffer as shown on the plan hereinbefore
mentioned.
SUBJECT TO a fifteen foot utility easement for the benefit of Xxx
X0-0-000 as shown on the plan herein above mentioned to be conveyed
as appurtenant to Lot D6-7-117.
Being the same premises conveyed to the Mortgagors herein by deed
of the Xxxxxxxx Family Nominee Trust of even date and recorded with
the Berkshire County (Middle District) Registry of Deeds
simultaneously herewith.
EXHIBIT B
to
Commercial Real Estate Mortgage and Security Agreement
Permitted Encumbrances
1. Subject to a mortgage in the principal amount of $2,500,000.00
given to Berkshire Bank dated September 29, 1999 and recorded with
the Berkshire County (Middle District) Registry of Deeds
simultaneously herewith.
2. Subject to a second mortgage in the principal amount of
$1,900,000.00 given to Berkshire Bank dated September 29, 1999 and
recorded with the Berkshire County (Middle District) Registry of
Deeds simultaneously herewith.
3. Subject to the terms and conditions of a Declaration of
Covenants and Restrictions made by BETNR Industrial Development
Corporation by instrument, dated March 27, 1996, and recorded with
the Berkshire County (Middle District) Registry of Deeds in Book
1509, Page 850 (the "Declaration").
4. Subject to the terms of a 100 foot Building Construction Buffer
as shown on the plan of land entitled "Building Lot Plan of
Stearnsville Business Park surveyed for BETNR Industrial
Development Corporation, Pittsfield, Massachusetts", prepared by SK
Design Group, Inc., dated March 1, 1996, and recorded with the
Berkshire County (Middle District) Registry of Deeds in Plat D,
Plan Number 362.
5. Subject to a fifteen foot utility easement for the benefit of
Xxx X0-0-000 as shown on the plan of land entitled "Building Lot
Plan of Stearnsville Business Park surveyed for BETNR Industrial
Development Corporation, Pittsfield, Massachusetts", prepared by SK
Design Group, Inc., dated March 1, 1996, and recorded with
Berkshire County (Middle District) in Plat D, Plan Number 362.
