OPEN-END MORTGAGE
COMMERCIAL MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES
AND RENTS
This OPEN-END COMMERCIAL MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
LEASES AND RENTS (this "Mortgage") entered into at New Britain, Connecticut, as
of March 5, 2004 between EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation,
with an address of 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the
"Mortgagor") and BANKNORTH, N.A., a national banking association with an address
of 000 Xxxx Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxx 00000 (the "Bank").
The real property which is the subject matter of this Mortgage has the
following address: 1790, 1798 AND 0000 XXX XXXXXXX XXXXXX, XXXXXXXXXX,
XXXXXXXXXXX (the "Address(es)").
THE CONDITION OF THIS DEED IS SUCH THAT WHEREAS, Mortgagor is justly
indebted to Bank in the principal amount of $1,659,000.00 as evidenced by
Mortgagor's Five Year Adjustable Term Note of even date herewith in the
principal amount of $1,659,000.00 (the "Five Year Term Note"), a copy of which
is attached hereto as Exhibit B; and
WHEREAS, MORTGAGOR AND THE BANK EACH ACKNOWLEDGE THE TRUTH OF THE
FOREGOING AND AGREE TO BE BOUND THEREBY.
1. MORTGAGE, OBLIGATIONS AND FUTURE ADVANCES
1.1 Mortgage. For valuable consideration paid and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Mortgagor hereby mortgages, grants, bargains, transfers, sells, conveys, sets
over and assigns to the Bank and its successors and assigns forever, with
MORTGAGE COVENANTS upon the STATUTORY CONDITION, all of Mortgagor's right, title
and interest in and to the "Property" described below, to secure the prompt
payment and performance of the Obligations (as hereinafter defined), including
without limitation, all amounts due and owing to the Bank and all obligations
respecting the Five Year Adjustable Term Note, dated March 5, 2004 in favor of
Bank in the original principal amount of $1,659,000.00 (the "Note"; and
collectively, along with all other agreements, documents, certificates and
instruments delivered in connection therewith, the "Loan Documents"), and any
substitutions, modifications, extensions or amendments to any of the Loan
Documents.
The amount of principal obligations outstanding and evidenced by the Loan
Documents and secured by this Mortgage total $1,659,000.00 as of the date of
this Mortgage but this Mortgage shall nevertheless secure payment and
performance of all Obligations.
1.2 Security Interest in Property. As continuing security for the Obligations
the Mortgagor hereby pledges, assigns and grants to the Bank, and its successors
and assigns, a security interest in any of the Property (as hereinafter defined)
constituting fixtures. This Mortgage is and shall be deemed to be a security
agreement and financing statement pursuant to the terms of the Uniform
Commercial Code of Connecticut (the "Uniform Commercial Code") as to any and all
fixtures and as to all such property the Bank shall have the rights and remedies
of a secured party under the Uniform Commercial Code in addition to its rights
hereunder. This Mortgage constitutes a financing statement filed as a fixture
filing
under C.G.S.A., Section 42a-9-502(c) of the Uniform Commercial Code covering any
Property which now is or later may become a fixture.
1.3 Collateral Assignment of Leases and Rents. The Mortgagor hereby
irrevocably and unconditionally assigns to the Bank, and its successors and
assigns, as collateral security for the Obligations all of the Mortgagor's
rights and benefits under any and all Leases (as hereinafter defined) and any
and all rents and other amounts now or hereafter owing with respect to the
Leases or the use or occupancy of the Property. This collateral assignment shall
be absolute and effective immediately, but the Mortgagor shall have a license,
revocable by the Bank, to continue to collect rents owing under the Leases until
an Event of Default (as hereinafter defined) occurs and the Bank exercises its
rights and remedies to collect such rents as set forth herein.
1.4 Conditions to Grant. To have and to hold the above granted Property unto
and to the use and benefit of the Bank, and its successors and assigns, forever;
provided, however, the conveyances, grants and assignments contained in this
Mortgage are upon the express condition that, if Mortgagor shall pay and perform
the Obligations in full, including, without limitation, all principal, interest
and premium thereon and other charges, if applicable, in accordance with the
terms and conditions in the Loan Documents and this Mortgage, shall pay and
perform all other Obligations as set forth in this Mortgage and shall abide by
and comply with each and every covenant and condition set forth herein and in
the Loan Documents, the conveyances, grants and assignments contained in this
Mortgage shall cease, terminate and be void.
1.5 Property. The term "Property," as used in this Mortgage, shall mean that
certain parcel of land and the fixtures, structures and improvements and all
personal property constituting fixtures, as that term is defined in the Uniform
Commercial Code, now or hereafter thereon located at the Address, as more
particularly described in Exhibit A attached hereto, together with: (i) all
judgments, awards of damages and settlements hereafter made as a result or in
lieu of any Taking, as hereinafter defined; (ii) all of the rights and benefits
of the Mortgagor under any present or future leases and agreements relating to
the Property, including, without limitation, rents, issues and profits, or the
use or occupancy thereof together with any extensions and renewals thereof,
specifically excluding all duties or obligations of the Mortgagor of any kind
arising thereunder (the "Leases"); and (iii) all contracts, permits and licenses
respecting the use, operation or maintenance of the Property.
1.6 Obligations. The term "Obligation(s)," as used in this Mortgage, shall
mean the Note and any liabilities and amounts, liquidated or unliquidated, owing
by the Mortgagor to the Bank arising under this Mortgage or any of the Loan
Documents. A copy of the Note is attached hereto as Exhibit B.
1.7 Open-End Mortgage. The Bank has made a loan to the Mortgagor pursuant to
the Loan Documents and evidenced by the Note attached hereto as Exhibit B. The
Mortgagor and the Bank agree it is their mutual intent that this Mortgage
constitute, inter alia, a lien securing the Obligations including without
limitation, to the extent any amounts are to be advanced at a later date
pursuant to the terms of the Loan Documents or Note, in accordance with Section
49-2(c) of the Connecticut General Statutes, and that the Bank and the Mortgagor
shall have all of the rights, powers and protections to which the parties of an
open-end mortgage are entitled under Connecticut law.
2. REPRESENTATIONS, WARRANTIES, COVENANTS
2.1 Representations and Warranties. The Mortgagor represents and warrants
that:
(a) This Mortgage has been duly executed and delivered by the Mortgagor
and is the legal, valid and binding obligation of the 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) The Mortgagor is the sole legal owner of the Property, holding good
and marketable fee simple title to the Property, subject to no
liens, encumbrances, leases, security interests or
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rights of others, other than as set forth in detail in Exhibit C
hereto (the "Permitted Encumbrances");
(c) The Mortgagor is the sole legal owner of the entire lessor's
interest in the Leases with full power and authority to encumber the
Property in the manner set forth herein and the Mortgagor has not
executed any other assignment of the Leases or any of the rights or
rents arising thereunder; and
(d) Each Obligation is a commercial obligation and does not represent a
loan used for personal, family or household purposes and is not a
consumer transaction or otherwise subject to the provisions of the
Federal Truth in Lending Act, Federal Reserve Board Regulation Z,
Connecticut Truth In Lending Act, CGSA, Section 36a-675, or other
such consumer statutes or regulations and restrictions.
2.2 Recording; Further Assurances. The Mortgagor covenants that it shall, at
its sole cost and expense and upon the request of the Bank, cause this Mortgage,
and each amendment, modification or supplement hereto, to be recorded and filed
in such manner and in such places, and shall at all times comply with all such
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. Mortgagor will from time to time execute and
deliver to the Bank, and take or cause to be taken, all such other further
action as the Bank may request in order to effect and confirm or vest more
securely in the Bank all rights contemplated by this Mortgage or to vest more
fully in, or assure to the Bank the security interest in, the Property or to
comply with applicable statute or law. To the extent permitted by applicable
law, Mortgagor authorizes the Bank to file financing statements, continuation
statements or amendments without Mortgagor's signature appearing thereon, and
any such financing statements, continuation statements or amendments may be
signed or authenticated by the Bank on behalf of Mortgagor, if necessary, and
may be filed at any time in any jurisdiction. Mortgagor agrees to furnish any
such information to the Bank promptly upon request. In addition, Mortgagor shall
at any time and from time to time, take such steps as the Bank may reasonably
request for the Bank to insure the continued perfection and priority of the
Bank's security interest in any of the Property and the preservation of its
rights therein. Mortgagor hereby constitutes the Bank its attorney-in-fact to
execute and file all filings required or so requested for the foregoing
purposes, all acts of such attorney being hereby ratified and confirmed; and
such power, being coupled with an interest, shall be irrevocable until this
Mortgage terminates in accordance with its terms, all Obligations are paid in
full and the Property is released.
2.3 Restrictions on the Mortgagor. The Mortgagor covenants that it will not,
nor will it permit any other person to, directly or indirectly, without the
prior written approval of the Bank in each instance:
(a) Sell, convey, assign, transfer, mortgage, pledge, hypothecate, lease
or dispose of all or any part of the Property or any part thereof or
permit any of the foregoing, except as expressly permitted by the
terms of this Mortgage; or
(b) Permit to be created or suffer to exist any mortgage, lien, security
interest, attachment or other encumbrance or charge on the Property
or any part thereof or interest therein (except for the Permitted
Encumbrances), including, without limitation, (i) any lien arising
under any Federal, state or local statute, rule, regulation or law
pertaining to the release or cleanup of Hazardous Substances and
(ii) any mechanics' or materialmen's lien. The Mortgagor further
agrees to give the Bank prompt written notice of the imposition, or
notice, of any lien referred to in this Section and to take any
action necessary to secure the prompt discharge or release of the
same. The Mortgagor agrees to defend its title to the Property and
the Bank's interest therein against the claims of all persons and,
unless the Bank requests otherwise, to appear in and diligently
contest, at the Mortgagor's sole cost and expense, any action or
proceeding that purports to affect the Mortgagor's title to the
Property or the priority or validity of this Mortgage or the Bank's
interest hereunder.
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2.4 Operation of Property. The Mortgagor covenants and agrees as follows:
(a) The Mortgagor will not permit the Property to be used for any
unlawful or improper purpose, will at all times comply with all
Federal, state and local laws, ordinances and regulations, and the
provisions of any Lease, easement or other agreement affecting all
or any part of the Property, and will obtain and maintain all
governmental or other approvals relating to the Mortgagor, the
Property or the use thereof, including without limitation, any
applicable zoning or building codes or regulations and any laws or
regulations relating to the handling, storage, release or cleanup of
Hazardous Substances, and will give prompt written notice to the
Bank of (i) any violation of any such law, ordinance or regulation
by the Mortgagor or relating to the Property, (ii) receipt of notice
from any Federal, state or local authority alleging any such
violation and (iii) the release on the Property of any Hazardous
Substances;
(b) The Mortgagor will at all times keep the Property insured for such
losses or damage, in such amounts and by such companies as may be
required by law or which the Bank may require, provided that, in any
case, the Mortgagor shall maintain: (i) physical hazard insurance on
an "all risks" basis in an amount not less than 100% of the full
replacement cost of the Property; (ii) flood insurance if and as
required by applicable Federal law and as otherwise required by the
Bank; (iii) comprehensive commercial general liability insurance;
(iv) rent loss and business interruption insurance; and (v) such
other insurance as the Bank may require from time to time, including
builder's risk insurance in the case of construction loans. All
policies regarding such insurance shall be issued by companies
licensed to do business in the state where the policy is issued and
also in the state where the Property is located, be otherwise
acceptable to the Bank, provide deductible amounts acceptable to the
Bank, name the Bank as mortgagee, loss payee and additional insured,
and provide that no cancellation or material modification of such
policies shall occur without at least thirty (30) days' prior
written notice to the Bank. Such policies shall include (i) a
mortgage endorsement determined by the Bank in good faith to be
equivalent to the "standard" mortgage endorsement so that the
insurance, as to the interest of the Bank, shall not be invalidated
by any act or neglect of the Mortgagor or the owner of the Property,
any foreclosure or other proceedings or notice of sale relating to
the Property, any change in the title to or ownership of the
Property, or the occupation or use of the Property for purposes more
hazardous than are permitted at the date of inception of such
insurance policies; (ii) a replacement cost endorsement; (iii) an
agreed amount endorsement; (iv) a contingent liability from
operation endorsement; and (v) such other endorsements as the Bank
may request. The Mortgagor will furnish to the Bank upon request
such original policies, certificates of insurance or other evidence
of the foregoing as are acceptable to the Bank. The terms of all
insurance policies shall be such that no coinsurance provisions
apply, or if a policy does contain a coinsurance provision, the
Mortgagor shall insure the Property in an amount sufficient to
prevent the application of the coinsurance provisions;
(c) Mortgagor will not enter into or modify the Leases without the prior
written consent of the Bank, execute any assignment of the Leases
except in favor of the Bank, or accept any rentals under any Lease
for more than one month in advance and will at all times perform and
fulfill every term and condition of the Leases;
(d) Mortgagor will at all times (i) maintain complete and accurate
records and books regarding the Property in accordance with
generally accepted accounting principles and (ii) permit the Bank
and the Bank's agents, employees and representatives, at such
reasonable times as the Bank may request, to enter and inspect the
Property and such books and records; and
(e) Mortgagor will at all times keep the Property in good and first-rate
repair and condition (damage from casualty not excepted) and will
not commit or permit any strip, waste, impairment, deterioration or
alteration of the Property or any part thereof.
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2.5 Payments. The Mortgagor covenants to pay prior to any delinquency: all
Federal, state, municipal or other taxes, betterment and improvement assessments
and other governmental levies, water rates, sewer charges, insurance premiums
and other charges on the Property, this Mortgage or any Obligation secured
hereby that could, if unpaid, result in a lien on the Property or on any
interest therein. If and when requested by the Bank, the Mortgagor shall deposit
from time to time with the Bank sums determined by the Bank to be sufficient to
pay when due the amounts referred to in this Section. The Mortgagor shall have
the right to contest any notice, lien, encumbrance, claim, tax, charge,
betterment assessment or premium filed or asserted against or relating to the
Property; provided that it contests the same diligently and in good faith and by
proper proceedings and, at the Bank's request, provides the Bank with adequate
cash security, in the Bank's reasonable judgment, against the enforcement
thereof. The Mortgagor shall furnish to the Bank the receipted real estate tax
bills or other evidence of payment of real estate taxes or of all other payments
referred to above for the Property within fifteen (15) days after written
request therefor by the Bank.
2.6 Notices; Notice of Default. The Mortgagor will deliver to the Bank,
promptly upon receipt of the same, copies of all notices or other documents it
receives that affect the Property or its use, or claim that the Mortgagor is in
default in the performance or observance of any of the terms hereof or that the
Mortgagor or any tenant is in default of any terms of the Leases. The Mortgagor
further agrees to deliver to the Bank written notice promptly upon the
occurrence of any Event of Default hereunder or event that with the giving of
notice or lapse of time, or both, would constitute an Event of Default
hereunder.
2.7 Takings. In case of any condemnation or expropriation 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 Mortgagor
shall promptly give written notice to the Bank, describing the nature and extent
thereof. The Bank may, at its option, appear in any proceeding for a Taking or
any negotiations relating to a Taking and the Mortgagor shall promptly give to
the Bank copies of all notices, pleadings, determinations and other papers
relating thereto. The Mortgagor shall in good faith and with due diligence and
by proper proceedings file and prosecute its claims for any award or payment on
account of any Taking. The Mortgagor shall not settle any such claim without the
Bank's prior written consent. The Mortgagor shall hold any amounts received with
respect to such awards or claims, by settlement, judicial decree or otherwise,
in trust for the Bank and promptly pay the same to the Bank. The Mortgagor
authorizes any award or settlement due in connection with a Taking to be paid
directly to the Bank in amounts not exceeding the Obligations. The Bank may
apply such amounts to the Obligations in such order as the Bank may determine.
2.8 Insurance Proceeds. The proceeds of any insurance resulting from any loss
with respect to the Property shall be paid to the Bank and, at the option of the
Bank, be applied to the Obligations in such order as the Bank may determine;
provided, however, that if the Bank shall require repair of the Property, the
Bank may release all or any portion of such proceeds to the Mortgagor for such
purpose. Any insurance proceeds paid to the Mortgagor shall be held in trust for
the Bank and promptly paid to it.
3. CERTAIN RIGHTS OF THE BANK
3.1 Legal Proceedings. The Bank shall have the right, but not the duty, to
intervene or otherwise participate in any legal or equitable proceeding that, in
the Bank's reasonable judgment, might affect the Property or any of the rights
created or secured by this Mortgage. The Bank shall have such right whether or
not there shall have occurred an Event of Default hereunder.
3.2 Appraisals/Assessments. The Bank shall have the right, at the Mortgagor's
sole cost and expense, to obtain appraisals if required by a regulatory
authority, environmental site assessments upon the reasonable belief that a
spill has occurred or other inspections of the portions of the Property that are
real estate at such times as the Bank deems necessary or as may be required by
applicable law, or its prevailing credit or underwriting policies.
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3.3 Financial Statements and Tax Returns. The Mortgagor will furnish financial
information and tax returns as required by the Loan Agreement of even date
herewith.
3.4 Leases and Rent Roll. The Mortgagor shall deliver to the Bank during each
calendar year and at such other times as the Bank shall request a rent roll for
the Property, in form acceptable to the Bank, listing all tenants and occupants
and describing all of the Leases.
4. DEFAULTS AND REMEDIES
4.1 Events of Default. Event of Default shall mean the occurrence of any one
or more of the following events:
(a) failure to pay in full and within 15 days of any due date of any
installment of principal and interest or default of the Mortgagor of
any other liability, obligation or undertaking under any other Loan
Document;
(b) failure by the Mortgagor to perform, observe or comply with any of
the covenants, agreements, terms or conditions set forth in this
Mortgage;
(c) the (i) occurrence of any material loss, theft, damage or
destruction of, or (ii) issuance or making of any levy, seizure,
attachment, execution or similar process on a material portion of
the Property;
(d) if any statement, representation or warranty heretofore, now or
hereafter made by the Mortgagor in connection with this Mortgage or
in any supporting financial statement of the Mortgagor shall be
determined by the Bank to have been false in any material respect
when made;
(e) if the Mortgagor is a corporation, trust, partnership or limited
liability company, the liquidation, termination or dissolution of
any such organization, or the merger or consolidation of such
organization into another entity, or its ceasing to carry on
actively its present business or the appointment of a receiver for
its property;
(f) the institution by or against (if not dismissed within 60 days) the
Mortgagor of any proceedings under the Bankruptcy Code 11 USC
Section 101 et seq. or any other law in which the Mortgagor is
alleged to be insolvent or unable to pay its debts as they mature,
or the making by the Mortgagor of an assignment for the benefit of
creditors or the granting by the Mortgagor of a trust mortgage for
the benefit of creditors;
4.2 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 the Mortgagor except for Obligations due and
payable on demand, which shall be due and payable on demand whether
or not an event of default has occurred hereunder;
(b) Enter, take possession of, manage and operate the Property
(including all personal property and all records and documents
pertaining thereto) and any part thereof and exclude the Mortgagor
therefrom, take all actions it deems necessary or proper to preserve
the Property 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; provided,
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however, the entry by the Bank upon the Property for any reason
shall not cause the Bank to be a mortgagee in possession, except
upon the express written declaration of the Bank;
(c) With or without taking possession, receive and collect all rents,
income, issues and profits ("Rents") from the Property (including
all real estate and personal property and whether past due or
thereafter accruing), including as may arise under the Leases, and
the 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 Rents and take any action that the Mortgagor is authorized
to take under the Leases. The Bank shall (after payment of all costs
and expenses incurred) apply any Rents received by it to the
Obligations in such order as the Bank determines, or in accordance
with any applicable statute, and the Mortgagor agrees that exercise
of such rights and disposition of such funds shall not be deemed to
cure any default or constitute a waiver of any foreclosure once
commenced nor preclude the later commencement of foreclosure for
breach thereof. The Bank shall be liable to account only for such
Rents actually received by the Bank. Lessees under the Leases are
hereby authorized and directed, following notice from the Bank, to
pay all amounts due the Mortgagor under the Leases to the Bank,
whereupon such lessees shall be relieved of any and all duty and
obligation to the Mortgagor with respect to such payments so made;
(d) In addition to any other remedies, to sell the Property or any part
thereof or interest therein pursuant to exercise of its 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 the Mortgagor shall
execute and deliver such instruments as the Bank may request in
order to convey and transfer all of the Mortgagor's interest in the
Property, and the same shall operate to divest all rights, title and
interest of the 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 and to the extent permitted by
applicable law, 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. In addition, the Bank may in its discretion subordinate
this Mortgage to one or more Leases for the sole purpose of
preserving any such Lease in the event of a foreclosure;
(e) Cause one or more environmental assessments to be taken, arrange for
the cleanup of any Hazardous Substances or otherwise cure the
Mortgagor's failure to comply with any statute, regulation or
ordinance relating to the presence or cleanup of Hazardous
Substances, and the Mortgagor shall provide the Bank or its agents
with access to the Property for such purposes; provided that the
exercise of any of such remedies shall not be deemed to have
relieved the 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; and
(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 the Mortgagor hereby
waives any right to object to such appointment) and exercise of any
of the Bank's remedies provided herein or in any other document
evidencing, securing or relating to any of the Obligations or
available to a secured party under the Uniform Commercial Code or
under other applicable law.
In addition, the Bank shall have all 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.
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The Mortgagor agrees and acknowledges that the acceptance by the Bank of
any payments from either the Mortgagor or any guarantor after the occurrence of
any Event of Default, the exercise by the Bank of any remedy set forth herein or
the commencement, discontinuance or abandonment of foreclosure proceedings
against the Property shall not waive the Bank's subsequent or concurrent right
to foreclose or operate as a bar or estoppel to the exercise of any other rights
or remedies of the Bank. The Mortgagor agrees and acknowledges that the Bank, by
making payments or incurring costs described herein, shall be subrogated to any
right of the Mortgagor to seek reimbursement from any third parties, including,
without limitation, any predecessor in interest to the Mortgagor's title or
other party who may be responsible under any law, regulation or ordinance
relating to the presence or cleanup of Hazardous Substances.
4.3 Advances. If the Mortgagor fails to pay or perform any of its obligations
respecting the Property, the Bank may in its sole discretion do so without
waiving or releasing Mortgagor from any such obligation. Any such payments may
include, but are not limited to, payments for taxes, assessments and other
governmental levies, water rates, insurance premiums, maintenance, repairs or
improvements constituting part of the Property. Any amounts paid by the Bank
hereunder shall be, until paid, part of the Obligations and secured by this
Mortgage, and shall be due and payable to the Bank, on demand, together with
interest thereon to the extent permitted by applicable law, at the highest rate
permitted under the Note.
4.4 Cumulative Rights and Remedies. All of the foregoing rights, remedies and
options (including without limitation the right to enter and take possession of
the Property, the right to manage and operate the same, and the right to collect
Rents, in each case whether by a receiver or otherwise) 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 and none of which
shall be exclusive of any other. The Mortgagor further agrees that the Bank may
exercise any or all of its rights or remedies set forth herein without having to
pay the Mortgagor any sums for use or occupancy of the Property.
4.5 Mortgagor's Waiver of Certain Rights. To the extent permitted by
applicable law, the Mortgagor hereby waives the benefit of all present and
future laws (i) providing for any appraisal before sale of all or any portion of
the Property or (ii) in any way extending the time for the enforcement of the
collection of the Obligations or creating or extending a period of redemption
from any sale made hereunder.
5. MISCELLANEOUS
5.1 Costs and Expenses. To the extent permitted by applicable law, the
Mortgagor shall pay to the Bank, on demand, all reasonable expenses (including
attorneys' fees (which may include allocable cost of the Bank's internal Legal
Department), and expenses and reasonable consulting, accounting, appraisal,
brokerage and similar professional fees and charges) incurred by the Bank in
connection with the Bank's interpretation, exercise, preservation or enforcement
of any of its rights, remedies and options set forth in this Mortgage 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 the Mortgagor at the
highest rate set forth in the Note. Any amounts owed by the Mortgagor hereunder
shall be, until paid, part of the Obligations and secured by this Mortgage, 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 the
Mortgagor, or any accounting for the proceeds of a foreclosure sale or of
insurance proceeds.
5.2 Indemnification Regarding Leases. Subject to the same limitations provided
in the Hazardous Substance Certificate and Indemnity Agreement of even date
herewith, the Mortgagor hereby agrees to defend, and does hereby indemnify and
hold the Bank and each of its directors, officers, employees, agents and
attorneys (each an "Indemnitee") harmless from all losses, damages, claims,
costs or expenses (including attorneys' fees and expenses) resulting from the
assignment of the Leases and from all demands that may be asserted against such
Indemnitees arising from any undertakings on the part of the Bank to perform any
obligations under the Leases except for negligence or intentional act on the
part
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of the Bank. It is understood that the assignment of the Leases shall not
operate to place responsibility for the control or management of the Property
upon the Bank or any Indemnitee or make them liable for performance of any of
the obligations of the Mortgagor under Leases, respecting any condition of the
Property or any other agreement or arrangement, written or oral, or applicable
law.
5.3 Indemnification Regarding Hazardous Substances. The Mortgagor hereby
agrees to defend, and does hereby indemnify and hold harmless the Bank in regard
to matters relating to Hazardous Substances as provided in the Hazardous
Substance Certificate and Indemnity Agreement of even date herewith.
5.4 Indemnitee's Expenses. Subject to the same limitations provided in the
Hazardous Substance Certificate and Indemnity Agreement of even date herewith,
if any Indemnitee is made a party defendant to any litigation or any claim is
threatened or brought against such Indemnitee concerning this Mortgage or the
Property or any part thereof or therein or concerning the construction,
maintenance, operation or the occupancy or use thereof by the Mortgagor or other
person or entity, then the Mortgagor shall indemnify, defend and hold each
Indemnitee harmless from and against all liability by reason of said litigation
or claims, including attorneys' fees and expenses incurred by such Indemnitee in
connection with any such litigation or claim, whether or not any such litigation
or claim is prosecuted to judgment. The within indemnification shall survive
payment of the Obligations, and/or any termination, release or discharge
executed by the Bank in favor of the Mortgagor.
5.5 Waivers. The Mortgagor waives notice of nonpayment, demand, presentment,
protest or notice of protest of the Obligations and all other notices, consents
to any renewals or extensions of time of payment thereof, and generally waives
any and all suretyship defenses and defenses in the nature thereof. No delay or
omission of the Bank in exercising or enforcing any of its rights, powers,
privileges, remedies, immunities or discretion (all of which are hereinafter
collectively referred to as "the Bank's rights and remedies") hereunder shall
constitute a waiver thereof; and no waiver by the Bank of any default of the
Mortgagor hereunder or of any demand shall operate as a waiver of any other
default hereunder or of any other demand. No term or provision hereof shall be
waived, altered or modified except with the prior written consent of the Bank,
which consent makes explicit reference to this Mortgage. Except as provided in
the preceding sentence, no other agreement or transaction, of whatsoever nature,
entered into between the Bank and the Mortgagor at any time (whether before,
during or after the effective date or term of this Mortgage) shall be construed
as a waiver, modification or limitation of any of the Bank's rights and remedies
under this Mortgage (nor shall anything in this Mortgage be construed as a
waiver, modification or limitation of any of the Bank's rights and remedies
under any such other agreement or transaction) but all the Bank's rights and
remedies not only under the provisions of this Mortgage but also under any such
other agreement or transaction shall be cumulative and not alternative or
exclusive, and may be exercised by the Bank at such time or times and in such
order of preference as the Bank in its sole discretion may determine.
5.6 Waiver of Homestead. To the maximum extent permitted under applicable law,
the Mortgagor hereby waives and terminates any homestead rights and/or
exemptions respecting the Property under the provisions of any applicable
homestead laws, including without limitation, Section 52-352b of the Connecticut
General Statutes Annotated.
5.7 Severability. If any provision of this Mortgage or portion of such
provision or the application thereof to any person or circumstance shall to any
extent be held invalid or unenforceable, the remainder of this Mortgage (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
5.8 Complete Agreement. This Mortgage and the other Loan Documents constitute
the entire agreement and understanding between and among the parties hereto
relating to the subject matter hereof, and supersedes all prior proposals,
negotiations, agreements and understandings among the parties hereto with
respect to such subject matter.
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5.9 Binding Effect of Agreement. This Mortgage shall run with the land and be
binding upon and inure to the benefit of the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, and shall remain in full force and effect (and the Bank shall be
entitled to rely thereon) until all Obligations are fully and indefeasibly paid.
The Bank may transfer and assign this Mortgage and deliver any collateral to the
assignee, who shall thereupon have all of the rights of the Bank; and the Bank
shall, after the assignment, be relieved and discharged of any responsibility or
liability with respect to this Mortgage and such collateral. Except as expressly
provided herein or in the other Loan Documents, nothing, expressed or implied,
is intended to confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this Mortgage or the
other Loan Documents.
5.10 Notices. Any notices under or pursuant to this Mortgage shall be deemed
duly received and effective if delivered in hand to any officer of agent of the
Mortgagor or the Bank, or if mailed by registered or certified mail, return
receipt requested, addressed to the Mortgagor or the Bank at the address set
forth in this Mortgage or as any party may from time to time designate by
written notice to the other party.
5.11 Governing Law. This Mortgage shall be governed by Connecticut law without
giving effect to the conflicts of laws principles thereof.
5.12 Reproductions. This Mortgage and all documents which have been or may be
hereinafter furnished by the Mortgagor to the Bank may be reproduced by the Bank
by any photographic, photostatic, microfilm, xerographic or similar process, and
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course of
business) provided Bank is in fact the holder of the Note.
5.13 Jurisdiction and Venue. The Mortgagor irrevocably submits to the
nonexclusive jurisdiction of any Federal or state court sitting in Connecticut,
over any suit, action or proceeding arising out of or relating to this Mortgage.
The Mortgagor irrevocably waives, to the fullest extent it may effectively do so
under applicable law, any objection it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding brought in any such court
and any claim that the same has been brought in an inconvenient forum. The
Mortgagor hereby consents to process being served in any such suit, action or
proceeding (i) by the mailing of a copy thereof by registered or certified mail,
postage prepaid, return receipt requested, to the Mortgagor's address set forth
herein or such other address as has been provided in writing to the Bank and
(ii) in any other manner permitted by law, and agrees that such service shall in
every respect be deemed effective service upon the Mortgagor.
5.14 JURY WAIVER. THE MORTGAGOR AND THE BANK EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A)
WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN
CONNECTION WITH THIS MORTGAGE, THE OBLIGATIONS, ALL MATTERS CONTEMPLATED HEREBY
AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREE NOT TO CONSOLIDATE
ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS
NOT BEEN WAIVED. THE MORTGAGOR CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS
REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
THE BANK WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO TRIAL BY JURY.
5.15 PREJUDGMENT REMEDY WAIVER. MORTGAGOR HEREBY REPRESENTS, COVENANTS AND
AGREES THAT THE PROCEEDS OF THE LOANS SECURED BY THIS MORTGAGE SHALL BE USED FOR
GENERAL COMMERCIAL PURPOSES AND THAT ANY SUCH LOAN IS A COMMERCIAL TRANSACTION
AS DEFINED BY THE STATUTES OF THE STATE OF CONNECTICUT. MORTGAGOR HEREBY WAIVES
ALL RIGHTS TO NOTICE AND PRIOR COURT HEARING OR COURT ORDER UNDER CONNECTICUT
GENERAL STATUTES ANNOTATED, SECTION 52-278A
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ET. SEQ., AS AMENDED, OR UNDER ANY OTHER STATE OR FEDERAL LAW WITH RESPECT TO
ANY AND ALL PREJUDGMENT REMEDIES THE BANK MAY EMPLOY TO ENFORCE ITS RIGHTS AND
REMEDIES HEREUNDER. MORE SPECIFICALLY, MORTGAGOR ACKNOWLEDGES THAT THE BANK'S
ATTORNEY MAY, PURSUANT TO CONNECTICUT GENERAL STATUTES ANNOTATED, SECTION
52-278F, ISSUE A WRIT FOR PREJUDGMENT REMEDY WITHOUT SECURING A COURT ORDER.
MORTGAGOR ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE AND A HEARING SUBSEQUENT
TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY BY THE BANK'S ATTORNEY, AND THE
BANK ACKNOWLEDGES MORTGAGOR'S RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE
OF SAID WRIT. MORTGAGOR FURTHER HEREBY WAIVES ANY REQUIREMENT OR OBLIGATION OF
THE BANK TO POST A BOND OR OTHER SECURITY IN CONNECTION WITH ANY PREJUDGMENT
REMEDY OBTAINED BY THE BANK AND WAIVES ANY OBJECTIONS TO ANY PREJUDGMENT REMEDY
OBTAINED BY THE BANK BASED ON ANY OFFSETS, CLAIMS, DEFENSES OR COUNTERCLAIMS OF
MORTGAGOR OR ANY OTHER OBLIGATED PARTY TO ANY ACTION BROUGHT BY THE BANK.
MORTGAGOR ACKNOWLEDGES AND AGREES THAT ALL OF THE WAIVERS CONTAINED IN THIS
SECTION HAVE BEEN MADE KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY,
AND WITH THE ADVICE OF ITS COUNSEL.
EXECUTED under seal as of the date first above written.
Witnesses: Mortgagor:
EDAC TECHNOLOGIES CORPORATION
/s/Xxxxxx X. Xxxx By: /s/Xxxxx X. Purple
---------------------------- --------------------------
Xxxxx X. Purple
Its Vice President-Finance, duly authorized
/s/Xxxxxxx X. Carrier
----------------------------
STATE OF CONNECTICUT
COUNTY OF HARTFORD, SS. NEW BRITAIN
The foregoing instrument was acknowledged before me this 5th day of March,
2004, by Xxxxx X. Purple, Vice President-Finance of EDAC Technologies
Corporation, a Wisconsin corporation.
/s/Xxxxxxx X. Carrier
---------------------------------
COMMISSIONER OF SUPERIOR COURT
AFTER RECORDING RETURN TO:
Xxxx Xxxxxxx
Banknorth Connecticut
000 Xxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
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EXHIBIT "A"
PROPERTY DESCRIPTION
12
EXHIBIT "B"
COPY OF $1,659,000 FIVE YEAR ADJUSTABLE TERM NOTE
13
EXHIBIT "C"
PERMITTED ENCUMBRANCES
14
