EXHIBIT 10(e)
[LOGO OF UNION TRUST COMPANY] Union Trust Company
A First Fidelity Bank
Mortgage, Assignment of Leases, and
Security Agreement-Commercial
(Connecticut)
Record and Return to:
First Fidelity Bank
000 Xxxx Xxxxxx
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Xxxxxxxx, XX 00000
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Attn: Xxxx X. Xxxxx
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THIS MORTGAGE, ASSIGNMENT OF LEASES AND SECURITY AGREEMENT (this "Mortgage")
dated July 6, 1995, is made by STAR STRUCK, INC., having an office at 8 Xxxxxxx
X. Xxxxx Cir., Bethel, CT (the "Mortgage") in favor of First Fidelity Bank (the
"Bank").
A. Liabilities Secured. This Mortgage is executed, acknowledged and delivered
by the Mortgagor to secure and enforce the following obligations and
liabilities:
1. Present and Future Liabilities. ANY AND ALL PRESENT AND FUTURE
OBLIGATIONS AND INDEBTEDNESS OF EVERY KIND AND DESCRIPTION OF THE
MORTGAGOR TO THE BANK AND/OR ANY AFFILIATE (as herein defined) arising
out of all sums due under the Loan Documents (as herein defined) in
connection with financial accommodations in the principal amount of up
to EIGHT HUNDRED THOUSAND AND XX/100 Dollars ($800,000.00) at the
interest rate set forth in the Promissory Note attached hereto as
Exhibit A and incorporated herein by reference, including, without
limitation, principal, interest, fees, late fees, expenses, attorneys'
fees and costs and/or allocated fees and costs of the Bank's in-house
legal counsel, that have been or may hereafter be contracted or
incurred (collectively, the "Liabilities"); and
2. Performance; Loan Documents. The performance of all of the terms,
covenants, conditions, agreements, obligations and liabilities of the
Mortgagor under this Mortgage, and all credit accommodations, loan
agreements, notes, and any other agreements and documents, now or
hereafter existing, creating, evidencing, guarantying, securing or
relating to any or all of the Liabilities, together with all
amendments, modifications, renewals or extensions thereof (all of the
foregoing collectively referred to as the "Loan Documents").
The Liabilities secured by this Mortgage were obtained solely for the
purpose of carrying on or acquiring a business or commercial investment and
not for residential, consumer or household purposes.
B. Definitions. As used herein, the following terms shall have the following
meanings:
1. Affiliate. The term "Affiliate" means First Fidelity Bancorporation and
any of its direct and indirect affiliates and subsidiaries.
2. Obligor. The term "Obligor" means the Mortgagor, and each and every
maker, endorser, guarantor, or surety of or for the Liabilities.
3. Uniform Commercial Code. The term "Uniform Commercial Code" means the
Uniform Commercial Code in effect from time to time in Connecticut.
X. Xxxxx of Mortgage. To secure the payment and performance of all Liabilities,
the Mortgagor hereby mortgages, grants, conveys, gives, bargains, sells,
confirms and assigns to the Bank, and grants to the Bank a lien on and a
security interest in, all of the land, buildings, improvements, fixtures,
equipment, easements, rights, appurtenances, leases, rents, contract rights
and all of the following property, whether presently in existence or to come
into existence at some future time (collectively, the "Mortgaged Property"):
1. Real Property.
Street Address: 8 Xxxxxxx X. Xxxxxx Circle
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Municipality/County/State: Bethel, Fairfield County, Connecticut
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Tax Xxx xxx Xxxxx: Xxx 00, Xxxxx 00, Xxx 150-31
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Dead Book Volume 527, Page 329
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as more fully described in the attached Schedule A, together with all
buildings, structures and improvements of every kind erected thereon
(the "Real Property");
2. Fixtures; Leases; Estates, etc. All fixtures, machinery, equipment and
other articles of real, personal or mixed property attached to, situate
or installed in or upon, or used in the operation or maintenance of,
the Real Property or any plant or business situated thereon, whether or
not such real, personal or mixed property is or shall be affixed to the
Real Property, and all replacements, substitutions, accretions and
proceeds of the foregoing (collectively, "Fixtures"). All leases,
licenses, occupancy agreements or agreements to lease all or any part
of the Real Property and all extensions, renewals, amendments, and
modifications thereof, and any options, rights of first refusal or
guarantees relating thereto (collectively, "Leases"); all rents,
income,
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receipts, revenues, security deposits, escrow accounts, reserves,
issues, profits, awards and payments of any kind payable under the
Leases or otherwise arising from the Real Property (collectively, the
"Income"); all contract rights, accounts receivable and general
intangibles relating to the Real Property or the use, occupancy,
maintenance, construction, repair or operation thereof; all management
agreements, franchise agreements, utility agreements and deposits, all
maps, plans, surveys and specifications; all warranties and guaranties;
all permits, licenses and approvals; all insurance policies. All
estates, rights, tenements, hereditaments, privileges, easements, and
appurtenances of any kind benefiting the Real Property; all means of
access to and from the Real Property, whether public or private; all
water and mineral rights; all rights of the Mortgagor as grantor,
declarant or unit owner under any condominium master deed, declaration
or by-laws or in any association applicable to the Real Property; and
3. Proceeds. All "Proceeds" of any of the above-described property, which
term shall have the meaning given to it in the Uniform Commercial code
and shall additionally include whatever is received upon the use,
lease, sale, exchange, collection, or other utilization or any
disposition of any of the foregoing property, voluntary or involuntary,
whether cash or non-cash, including proceeds of insurance and
condemnation awards, rental or lease payments, accounts, chattel paper,
instruments, documents, contract rights, general intangibles, equipment
and inventory.
D. Extent and Priority of Lien of Mortgage.
1. Purchase Money Mortgage. If all or any part of the Liabilities secured
by this Mortgage were used in whole or in part to fund the acquisition
of all or any part of the Mortgaged Property, this Mortgage shall
constitute a purchase money mortgage and shall be entitled to all
benefits as such under applicable laws of the state in which the
Mortgaged Property is located.
2. Future Advances. This Mortgage secures all existing and future advances
under the Loan Documents; provided, however, that repayment of all
future advances shall not extend beyond the date of the original debt
as set forth in the Loan Documents. Without limiting anything contained
in any provision of this Mortgage, this Mortgage secures the
Mortgagor's obligation to repay all advances of principal under the
Liabilities made at closing or thereafter and all interest, late
charges, fees, and other amounts due under the Liabilities or this
Mortgage, and in addition thereto (i) all advances by the Bank to the
Mortgagor or any other person to pay costs of erection, construction,
alteration, repair, restoration, maintenance and/or completion of any
part of the Mortgaged Property, (ii) any and all advances made or costs
incurred by the Bank for the payment of taxes, assessments, maintenance
charges, insurance premiums, and similar charges with respect to the
Mortgaged Property, (iii) any and all costs incurred for the protection
of all or any part of the Mortgaged Property or the lien of this
Mortgage, and (iv) any and all legal fees, costs, and other expenses
incurred by the Bank by reason of any default or otherwise in
connection with the Liabilities.
3. Changes in Mortgage. The Mortgagor and the Bank may agree to change the
interest rate and/or the maturity date applicable to the Liabilities,
release collateral for the Liabilities or otherwise alter any other
term of the Loan Documents; none of such changes shall affect the
priority of the lien on this Mortgage.
4. Defeasance. This Mortgage shall terminate upon indefeasible payment and
performance in full of the Liabilities. Thereupon, the Bank shall
release the Mortgaged Property and shall execute at the request of the
Mortgagor a release of this Mortgage and any other instrument to that
effect deemed necessary or desirable.
E. Assignment of Leases. The Mortgagor hereby assigns and pledges to the Bank,
as further security for the payment of the Liabilities, all existing and
future Leases and Income. The Mortgagor shall, upon demand, deliver to the
Bank the original and/or an executed copy of each such Lease. The Mortgagor
grants to the Bank the right to (i) enter the Mortgaged Property and collect
the Income with or without taking possession of the Mortgaged Property; (ii)
with or without legal process, dispossess by usual summary proceeding any
tenant defaulting in the performance of its obligations under its lease;
(iii) let the Mortgaged Property or any part thereof; and (iv) apply the
Income to the payment of any charges and expenses of the Mortgaged Property
or to the repayment of the Liabilities in such order and amounts as the Bank
shall determine in its sole discretion. This assignment shall continue in
effect until this Mortgage is paid in full and discharged of record;
however, so long as there shall exist no Event of Default (hereinafter
defined), the Mortgagor shall have a license to collect the Income as it
becomes due, but not prior to the accrual. Without the prior written consent
of the Bank, the Mortgagor shall not enter into, or amend, modify or
terminate, any Lease of the Mortgaged Property. The Mortgagor shall not
collect any of the rent from the Mortgaged Property in advance of the time
when the same shall become due under any lease or tenancy arrangement or, in
any event, more than one (1) month in advance. The provisions of this
Paragraph are for the sole benefit of the Bank and are not for the benefit
of any other person or entity.
F. Security Agreement. This Mortgage constitutes a security agreement under the
Uniform Commercial Code and shall be deemed to constitute a financing
statement. The Mortgagor hereby grants to the Bank a security interest in
the personal and other property included in the Mortgaged Property, and all
replacements of, substitutions for, and additions to, such property, and the
Proceeds thereof. The Mortgagor shall, all the Mortgagor's own expense,
execute, deliver, and file any financing or continuation statements or other
security agreements the Bank may require from time to time, to perfect,
confirm, and maintain the lien of this Mortgage with respect to such
property. Without limiting the foregoing, the Mortgagor hereby irrevocably
appoints the Bank (and any of its attorneys, officers, employees or agents)
as the Mortgagor's true and lawful attorney-in-fact, said appointment being
coupled with an interest, with full power of substitution in the name of the
Mortgagor, the Bank or otherwise, for the sole use and benefit of the Bank
in its sole discretion but at the Mortgagor's expense, to exercise to the
extent permitted by law, in its name or in the name of the Mortgagor or
otherwise, the powers set forth herein, whether or not any of the
Liabilities are due (i) to execute, deliver and/or file financing statements
and other agreements for or on behalf of the Mortgagor; (ii) to notify
lessees under any Lease of the Bank's interest therein and require such
lessees to pay all sums due thereunder to the Bank; and (iii) to correspond
and negotiate directly with insurance carriers.
G. Representations and Covenants.
1. Payment and Performance. The Mortgagor shall pay and perform promptly
as and when due (i) the Liabilities in accordance with their stated
terms and conditions; (ii) all obligations and liabilities under any
Permitted Encumbrances (hereinafter defined); and (iii) all of its
obligations as landlord under the Leases.
2. Warranty of Title. The Mortgagor warrants to the Bank that the
Mortgagor has good and marketable fee simple absolute title to the
Mortgaged Property subject only to those exceptions to title which are
more particularly described in the title report issued to the Bank and
which exceptions are accepted by the Bank in connection with this
transaction (the "Permitted Encumbrances"). The Mortgagor hereby
covenants that the Mortgagor shall (i) preserve such title and the
validity and priority of the lien of this Mortgage and shall forever
warrant and defend the same to the Bank against all lawful claims
whatsoever excepting only those claiming under Permitted Encumbrances;
and (ii) execute, acknowledge, and deliver all such further documents
or assurances, cause to be done all such further acts as may at any
time hereafter be required by the Bank to protect fully the lien of
this Mortgage and pay all costs related thereto.
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3. Insurance. The Mortgagor hereby covenants to obtain and maintain at all
times, throughout the xxx of this Mortgage, insurance covering the
Mortgaged Property, in such amounts, on such xxx and written by such
companies, as the Bank may xxx from time to time, including, but not
limited to (i) comprehensive general public liability insurance; (ii)
an "All-Risk" policy covering damage due to fire and extended hazard
insurance (together with vandalism and malicious mischief
endorsements); (iii) if the Mortgaged Property is required or eligible
to be insured pursuant to the Flood Disaster Protection Act of 1973 or
the National Flood Insurance Act of 1968, flood insurance; and (iv)
business interruption and/or rental loss coverage. Each insurance
policy required under this Paragraph shall be written or endorsed so as
to (i) contain a standard mortgagee or secured party endorsement, as
the case may be, or its equivalent; (ii) make all losses and all
returns of unearned premiums payable directly to the Bank, without
contribution; (iii) with respect to public liability coverage, name the
Bank as an additional insured, as its interest may appear; and (iv)
waive all rights of set-off, counterclaim, deduction, or subrogation
against the Mortgagor (so as not to interfere with the Bank's rights).
Each insurance policy required under this Paragraph shall contain a
provision to the effect that such policy shall not be canceled,
altered, in any way limited in coverage, or reduced in amount unless
the Bank is notified in writing at least thirty (30) days prior to such
change. At least thirty (30) days prior to the expiration of any such
policy, the Mortgagor shall furnish evidence satisfactory to the Bank
that such policy has been renewed, replaced, or is no longer required
by this Paragraph, together with proof of payment of any premiums then
owing. At the request of the Bank, the Mortgagor shall deliver all
original insurance policies to the Bank. The Mortgagor shall not take
out any separate or additional insurance with respect to the Mortgaged
Property which is contributing in the event of loss, unless it is
properly compatible with all of the requirements of this Paragraph.
4. Taxes and Other Charges. The Mortgagor shall prepare and timely file
all federal, state, and local tax returns required to be filed by the
Mortgagor and promptly pay and discharge all taxes, assessments, water
and sewer rents, and other governmental charges or claims of any kind
imposed upon the Mortgagor, the Mortgaged Property, or on any of the
Mortgagor's other property before the same shall become in default or
become a lien upon such property except for those taxes, assessments,
and other governmental charges then being contested in good faith by
the Mortgagor by appropriate proceedings and for which the Mortgagor
has maintained adequate reserves in the sole judgment of the Bank. The
Mortgagor shall submit to the Bank, upon request, an affidavit signed
by the Mortgagor certifying that all federal, state, and local tax
returns have been filed to date and all real property taxes,
assessments, and other governmental charges with respect to the
Mortgagor's properties have been paid to date.
5. Tax Escrows. The Mortgagor shall, if requested by the Bank, pay to the
Bank at the time of each installment of principal and interest due
under any of the Loan Documents, one twelfth (1/12) of the annual taxes
and assessments levied or assessed against the Mortgaged Property, as
estimated by the Bank, from time to time, unless the Mortgagor
demonstrates to the Bank that it is paying such taxes and assessments
to a holder of a prior Permitted Encumbrance. Such payment shall be
held by the Bank to be used by the Bank in payment of such taxes and
assessments. If such escrow funds are not sufficient to pay such taxes
and assessments, as the same become payable, the Mortgagor shall pay to
the Bank, upon request, such additional amounts as the Bank shall
estimate to be sufficient to make up any such deficiency. No amount
paid to the Bank hereunder shall be deemed to be trust funds but may be
commingled with general funds of the Bank, and no interest shall be
payable thereon. If the Mortgagor is not required to pay such tax
escrows pursuant to this Section, the Mortgagor shall provide to the
Bank, not later than the last date such payment is due and payable
without interest or penalty, official receipted tax bills, canceled
checks, or other satisfactory to the Bank evidencing that such taxes
and assessments have been paid in a timely manner.
6. Transfer of Title. Without the prior written consent of the Bank in
each instance, which consent may be given or withheld in the Bank's
sole discretion, the Mortgagor shall not voluntarily or involuntarily
cause or permit, any transfer of the Mortgaged Property or any portion
thereof, whether voluntary, involuntary, by operation of law, or
otherwise, nor shall the Mortgagor enter into any agreement or
transaction to transfer, or accomplish in form or substance a transfer,
of the Mortgaged Property. A "transfer" of the Mortgaged Property
includes (i) the direct or indirect sale, transfer or conveyance of the
Mortgaged Property or any portion thereof or interest therein; (ii) the
execution of an installment sale contract or similar instrument
affecting all or a portion of the Mortgaged Property; (iii) the
transfer (whether in one transaction or a series of transactions) of
stock, partnership or other ownership interests constituting a
controlling interest in the Mortgagor (if the Mortgagor is a
partnership, joint venture or corporation); and (iv) a lease or leases
which, separately or in the aggregate, cover cumulatively more than
twenty percent (20%) of the usable space on the Mortgaged Property.
7. No Liens; Removal of Fixtures. At no time during the term of this
Mortgage shall the Mortgagor create or suffer to exist any mortgage,
lien, security interest, encumbrance, attachment, levy, distraint, or
other judicial process or burden of any kind on the Mortgaged Property
or any part thereof, whether superior or inferior to the lien of this
Mortgage, without the prior written consent of the Bank, which consent
may be given or withheld in the Bank's sole discretion. The Mortgagor
shall not remove or suffer to be removed from the Mortgaged Property
any fixtures presently or in the future located on the Mortgaged
Property (unless such fixtures have been replaced with similar fixtures
of equal or greater utility and value).
8. Maintenance and Repair; Compliance with Laws. The Mortgaged Property
shall, at the Mortgagor's own cost and expense, be kept and maintained
in good repair, working order, and condition, and in compliance with
all applicable laws, ordinances, codes, rules and regulations
(collectively, "Legal Requirements") of any federal, state or local
governmental entity or authority having jurisdiction (collectively,
"Governmental Authorities"). The Mortgagor agrees to comply, and to
cause its tenants to comply with all Legal Requirements made or
promulgated by any Governmental Authority now or hereafter applicable
to the Mortgaged Property. The Mortgagor shall from time to time make,
or cause to be made, all necessary and proper repairs and replacements
required under Legal Requirements, the Leases, or otherwise required to
keep the Mortgaged Property in good condition and the Mortgagor shall
abstain from and shall not permit the commission of waste on or about
the Mortgaged Property. The Mortgagor shall not remove, demolish,
materially alter, or discontinue the use of the Mortgaged Property, or
permit the Mortgaged Property to become vacant, deserted, or unguarded.
The Bank shall have the right, but not the obligation, to enter upon
and inspect the Mortgaged Property at any reasonable hour.
9. Damage, Destruction and Condemnation. If all or any part of the
Mortgaged Property shall be partially or totally damaged or destroyed,
or if title to or the use of the whole or any part of the Mortgaged
Property shall be taken or condemned by a competent authority for any
public use or purpose, then (i) there shall be no abatement or
reduction in the amounts payable by the Mortgagor under the Loan
Documents, and the Mortgagor shall continue to be obligated to make
such payments; (ii) the Mortgagor shall immediately give notice thereof
to the Bank in accordance with the terms of this Mortgage; (iii) the
Mortgagor hereby authorizes and directs any affected insurance company
or condemning authority to make payment of such proceeds directly to
the Bank as its interest appears; and (iv) the Mortgagor hereby
authorizes and empowers the Bank to settle, adjust or compromise, any
claims for loss, damage,
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destruction to or condemnation of the Mortgaged Property. The Mortgagor
shall pay all costs of collection of insurance proceeds payable on
account of such damage or destruction. The Mortgagor shall, at its sole
cost and expense, diligently prosecute any condemnation proceeding and
shall consult with the Bank, its attorneys, and experts and cooperate
with it in the defense of any such proceedings. The Bank shall have the
right, in any condemnation proceedings, to do or refrain from doing
whatever it deems necessary or convenient. The Mortgagor shall have no
claim against the insurance proceeds and/or condemnation proceeds, or
be entitled to any portion thereof, and all rights to insurance and/or
condemnation proceeds are hereby assigned to the Bank to the extent of
the Liabilities as remain unpaid. The Bank shall have the option, in
its sole discretion, of paying or applying all or any part of the
insurance proceeds and/or condemnation proceeds payable to the Bank
hereunder to (i) reduction of the Liabilities; (ii) restoration,
replacement and rebuilding of the Mortgaged Property; or (iii) payment
to the Mortgagor.
10. Required Notices. The Mortgagor shall immediately notify the Bank of
(i) the receipt of notice from any Governmental Authority relating to
the Mortgaged Property or alleging a violation of Legal Requirements;
(ii) a substantial change in the occupancy or use of all or any part of
the Mortgaged Property; (iii) the receipt of any notice from the holder
of any Permitted Encumbrance; (iv) the commencement of any litigation
affecting or potentially affecting in a material and adverse way the
financial condition of the Mortgagor or the value of the Mortgaged
Property; or (v) the discovery, discharge or release for which the
Mortgagor is or may be responsible under Applicable Environmental Laws
(hereinafter defined).
11. Financial Statements. The Mortgagor shall keep and maintain complete
and accurate books and records and shall permit representatives and/or
agents of the Bank to examine and audit the Mortgagor's (and its
parent's and subsidiaries', if applicable) books, records and financial
information and to inspect the Mortgagor's facilities and properties.
The Mortgagor shall provide to the Bank not later than ninety (90) days
after the end of each fiscal year of the Mortgagor, financial
information, in form and substance acceptable to the Bank, for the
immediately preceding fiscal year and such other information respecting
the operations, financial or otherwise, of the Mortgagor, as the Bank
may from time to time reasonably request. The Mortgagor shall prepare
and timely file all federal, state and local tax returns required to be
filed by the Mortgagor and shall submit to the Bank a copy of its
federal tax return immediately after filing same with the Internal
Revenue Service. The Mortgagor shall furnish to the Bank, at its
request, certified rent rolls and leases, as applicable, with respect
to the Mortgaged Property within ninety (90) days after the end of each
fiscal year.
H. Environmental Representations and Covenants.
1. Applicable Environmental Laws.
a. The term "Applicable Environmental Laws" means (i) all Legal
Requirements of any Governmental Authority pertaining to the
preservation or enhancement of the quality of the environment or
regulating or restricting the use, transfer, storage, disposal,
release, discharge, production or remediation of any substance or
material deemed by such Governmental Authority to be hazardous to
the environment; (ii) any and all laws, regulations, and executive
orders, whether federal, state or local, pertaining to
environmental matters, as the same may now exist or hereafter
exist or be amended or supplemented from time to time. Any terms
mentioned in this Mortgage which are defined in any Applicable
Environmental Law shall have the meanings ascribed to such terms
in said laws; provided, however, that if any of such laws are
amended so as to broaden any term defined therein, such broader
meaning shall apply subsequent to the effective date of such
amendment.
b. The Mortgagor represents and warrants that (i) neither the
Mortgagor nor the Mortgaged Property are in violation of any
Applicable Environmental Law, or subject to any existing, pending,
or threatened investigation or inquiry by any Governmental
Authority pertaining to an alleged violation of any Applicable
Environmental Law; and (ii) the Mortgaged Property is not subject
to the provisions of Title 22a "Environmental Protection" of the
Connecticut General Statutes, including, particularly, Sections
22a-448 through 22a-457 of the Connecticut General Statutes, or
any rules, regulations or executive orders issued thereunder, or
any amendments or successor statutes thereto (collectively,
"EPS"), except as disclosed in writing to the Bank.
2. Covenants. The Mortgagor shall not cause or permit the Mortgaged
Property to be in violation of, or do anything which would subject the
Mortgagor or the Mortgaged Property to any remedial obligations under
any Applicable Environmental Law, and shall promptly notify the Bank in
writing of any existing, pending, or threatened investigation or
inquiry by any Governmental Authority in connection with any Applicable
Environmental Law:
a. The Mortgagor shall immediately take all steps necessary to
determine whether hazardous materials have been disposed of or
otherwise released or discharged on, from or affecting the
Mortgaged Property;
b. The Mortgagor will not install, or permit in the Mortgaged
Property any substance deemed hazardous by federal or state
regulations. If any such materials are found to be present in the
Mortgaged Property, the Mortgagor agrees to remove the same
promptly upon discovery at its sole cost and expense;
c. The Mortgagor shall duly file or cause to be duly filed with all
Governmental Authorities having jurisdiction such reports and/or
information returns as may be required or appropriate under all
Applicable Environmental Laws;
d. If any lien or judgment shall be filed with respect to the
Mortgaged Property arising from a violation of Applicable
Environmental Laws, then the Mortgagor shall, within thirty (30)
days from the date that the Mortgagor is given notice of such lien
or judgment (or within such shorter period of time if any
Governmental Authority has commenced steps to have the Mortgaged
Property sold), pay the claim and remove the lien from the
Mortgaged Property;
e. If there shall occur any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, or dumping of hazardous materials on,
from or affecting the Mortgaged Property, or otherwise caused or
permitted by the Mortgagor in violation of Applicable
Environmental Laws, the Mortgagor shall promptly clean it up in
accordance with the provisions of all Applicable Environmental
Laws and to the satisfaction of the Bank;
f. If required by the Bank, the Mortgagor shall obtain a policy of
environmental liability insurance insuring the Mortgaged Property
in such amounts and with a carrier reasonably satisfactory to the
Bank, such policy to conform with the requirements of Paragraph
G.3; and
g. The Mortgagor shall not, without the Bank's prior written consent,
enter into a Lease where the lessee would be subject to EPS.
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3. Right to Inspect and Cure. The Bank shall have the right to conduct or
have conducted by its agents contractors such environmental
inspections, audits, and testing as the Bank shall deem necessary or
advisable from time to time at the sole cost and expense of the
Mortgagor. The cost of such tests shall be added to the Liabilities and
shall be secured by this Mortgage. If the Mortgagor fails to comply
with any Applicable Environmental Law, then the Bank may, at its sole
discretion, in addition to any of its other remedies under this
Mortgage, cause the Mortgaged Property to be in compliance with such
laws and the cost of such compliance shall be added to the sums secured
by this Mortgage and shall bear interest at the Default Rate (hereafter
defined).
I. Indemnification. The Mortgagor hereby agrees to and does hereby indemnify,
protect, defend, and hold harmless the Bank, and any entity which "controls"
the Bank, within the meaning of Section 15 of the Securities Act of 1933, as
amended, any member, officer, director, official, agent, employee, or
attorney of the Bank, and their respective heirs, successors, and assigns
(collectively, the "Indemnified Parties"), from and against any and all
losses, damages, expenses, or liabilities of any kind or nature, and from
any suits, claims, or demands, including counsel fees incurred in
investigating or defending such claim, suffered by any of them and caused
by, relating to, arising out of, resulting from, or in any way connected
with the Loan Documents or the transactions contemplated therein (unless
determined by a final judgment of a court of competent jurisdiction to have
been caused solely by the gross negligence or willful misconduct of the
Indemnified Parties). In case any action shall be brought against the Bank
or any other Indemnified Party in respect to which indemnity may be sought
against the Mortgagor, the Bank or such other Indemnified Party shall
promptly notify the Mortgagor; provided however, that the failure to so
notify the Mortgagor shall not relieve the Mortgagor of any liability it may
have under these indemnification provisions or from any liability which it
may otherwise have to the Bank or such other Indemnified Party. Promptly
following such notification, the Mortgagor shall assume the defense thereof,
including the employment of counsel selected by the Mortgagor and
satisfactory to the Bank or such other Indemnified Party, and the payment of
all costs and expenses relating thereto. The Bank shall have the right, at
its sole option, but at the Mortgagor's sole cost and expense, to employ
separate counsel in any such action and to participate in the defense
thereof. The Mortgagor shall not be liable for any settlement of any such
action unless the Mortgagor consents, which consent shall be reasonably
given, but if settled with the Mortgagor's consent, or if there be a final
judgment for the claimant in any such action, the Mortgagor agrees to
indemnify and hold harmless the Bank from and against any loss or liability
by reason of such settlement or judgment. The provisions of this Section
shall survive the repayment of the Liabilities.
J. No Release; No Waiver. Any extension of the time for payment, or any
modification of the amortization of the sums secured by this Mortgage or any
release of any Obligor or all or any part of the Mortgaged Property, granted
by the Bank to the Mortgagor or any other Obligor shall not operate to
release the liability of the Mortgagor, any other Obligor under the terms of
the Loan Documents or this Mortgage or any other collateral for the
Liabilities. Any forbearance by the Bank in exercising any right or remedy
hereunder or otherwise afforded by applicable law shall not be a waiver of,
or preclude the exercise of, any right or remedy.
K. Events of Default. The occurrence of any one of the following shall
constitute an event of default ("Event of Default") under this Mortgage:
1. Breach. A breach by the Mortgagor or any other Obligor of any term,
obligation, provision, covenant, representation or warranty, arising
under (i) this Mortgage or any other Loan Document, including, without
limitation, failure to make any payment when due; (ii) any present or
future agreement with or in favor of the Bank and/or any Affiliate,
including the failure to make any payment when due; or (iii) any
present or future agreement or instrument for borrowed money or other
financial accommodations with any person or entity;
2. Bankruptcy; Insolvency. (i) The Mortgagor or any other Obligor
commences any bankruptcy, reorganization, debt arrangement, or other
case or proceeding under the United States Bankruptcy Code or under any
similar foreign, federal, state, or local statute, or any dissolution
or liquidation proceeding, or makes a general assignment for the
benefit of creditors, or takes any action for the purpose of effecting
any of the foregoing; (ii) any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under the United States
Bankruptcy Code or under any similar foreign, federal, state or local
statute, or any dissolution or liquidation proceeding, is involuntarily
commenced against or in respect of the Mortgagor or any other Obligor
or an order for relief is entered in any such proceeding; (iii) the
appointment, or the filing of a petition seeking the appointment, of a
custodian, receiver, trustee, or liquidator for the Mortgagor or any
other Obligor or any of its property, or the taking of possession of
any part of the property of the Mortgagor or any other Obligor at the
instance of any governmental authority; or (iv) the Mortgagor or any
other Obligor becomes insolvent (however defined), is generally not
paying its debts as they become due, or has suspended transaction of
its usual business;
3. Death; Reorganization. The death, dissolution, merger, consolidation,
or reorganization of the Mortgagor or any other Obligor;
4. Material Misstatement. Any statement, representation or warranty made
in or pursuant to this Mortgage or any other Loan Document or to induce
the Bank to accept this Mortgage or to enter into or accept any other
Loan Document shall prove to be untrue or misleading in any material
respect;
5. Additional Debt; Granting of Security Interest. The Mortgagor or any
other Obligor (i) incurs or assumes additional debt other than debt
incurred for normal consumer purposes, debt to the Bank and/or an
Affiliate and/or trade debt in the ordinary course of its business; or
(ii) creates, permits or grants any lien or security interest in any of
its property on which the Bank has a lien and/or security interest;
6. Entry of Judgment. The filing, entry, or issuance of any judgment,
execution, garnishment, attachment, distraint, or lien against the
Mortgagor or any other Obligor or its property; the entry of any order
enjoining or restraining the Mortgagor or any other Obligor and/or
restraining or seizing any property of the Mortgagor or any other
Obligor; or
7. Transfer of Assets. The Mortgagor transfers all or any part of the
Mortgaged Property or the Mortgagor or any other Obligor transfers or
sells all or substantially all of its assets, without the prior written
consent of the Bank.
L. Remedies. Upon and following the occurrence of an Event of Default:
1. Advances. The Bank shall have the right, at its election, but not the
obligation, to make any payment or expenditure and to take any action
which the Mortgagor should have made or taken or which the Bank deems
advisable to protect the security of this Mortgage or the Mortgaged
Property. Such action shall be without prejudice to any of the Bank's
rights or remedies available under this Mortgage or the other Loan
Documents or otherwise at law or in equity. All such sums, as well as
costs and expenses, advanced by the Bank shall be immediately due from
the Mortgagor to the Bank, shall become part of the Liabilities secured
by this Mortgage and the other Loan Documents, and shall bear interest
(including after any judgment obtained on account of any of the
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Liabilities) at the applicable rate provided the Loan Documents in
effect after maturity or default the "Default Rate") until repayment in
full to the Bank. The Mortgagor agrees that all of the Liabilities and
other obligations of the Mortgagor to the Bank under the Loan
Documents, including, without limitation, obligations to reimburse the
Bank for advances, shall survive the entry of any judgment lien on
account of the Liabilities or any judgment in mortgage foreclosure,
whether such obligations arise before or after the entry of judgment;
2. Other Remedies. The Bank shall have the right, at its election, to take
any one or more of the following actions: (i) to declare all the
Liabilities secured by this Mortgage to be immediately due and payable
(except that upon the occurrence of any Event of Default described in
Paragraph K.2., such Liabilities shall automatically be due and payable
without notice or demand); (ii) to obtain judgment for the Liabilities
together with interest after such judgment at the Default Rate until
payment in full is received by the Bank and to obtain execution upon
the Mortgaged Property or other property of the Mortgagor on account of
such judgment; (iii) to obtain possession of the Mortgaged Property and
(with or without obtaining possession) to enforce the Leases, collect
the Income and rent the Mortgaged Property, either in its name or in
the name of the owner, and apply the income and rents, at the Bank's
option, to the payment of any charges and expenses of the Mortgaged
Property in such order and amounts as the Bank in its sole discretion
may determine, being accountable only for such rents and profits
collected by it while in possession; (iv) to foreclose this Mortgage;
(v) to obtain appointment of a receiver of the Mortgaged Property
without the necessity of proving either inadequacy of the security or
insolvency of the Mortgagor or any other Obligor, and the Mortgagor and
each such person waive such proof and consent to the appointment of
such receiver; (vi) to apply on account of the Liabilities, in any
order and amounts as the Bank may determine and whether or not a
deficiency action shall have been instituted, any unexpended money
still retained by the Bank that was paid by the Mortgagor to the Bank
for the payment of, or as security for the payment of, taxes,
assessments, municipal or governmental rates, charges, impositions,
liens, water or sewer rents, or insurance premiums, if any, or in order
to secure the performance of some act by the Mortgagor; (vii) to
collect from the Mortgagor monthly, in advance, so long as the
Mortgagor remains in possession of all or any part of the Mortgaged
Property, the fair and reasonable market value for the Mortgagor's use
and occupation of the Mortgaged Property; and/or (viii) to exercise all
rights of a secured party under the Uniform Commercial Code;
3. Uniform Commercial Code Disposition. With respect to that portion of
the Mortgaged Property governed by the Uniform Commercial Code, the
Bank shall have the right, upon five (5) calendar days' prior written
notice to the Mortgagor (or one (1) day notice by telephone with
respect to Mortgaged Property that is perishable or threatens to
decline rapidly in value), which the Mortgagor hereby acknowledges to
be sufficient, commercially reasonable and proper, to sell, lease or
otherwise dispose of any or all of the Mortgaged Property at any time
and from time to time at public or private sale, with or without
advertisement thereof, and apply the proceeds of any such sale first to
the Bank's expenses in preparing the Mortgaged Property for sale
(including reasonable attorneys' fees) and second to the complete
satisfaction of the Liabilities. The Mortgagor waives the benefit of
any marshaling doctrine with respect to the Bank's exercise of its
rights hereunder. The Mortgagor grants a royalty-free license to the
Bank for all patents, service marks, trademarks, tradenames,
copyrights, computer programs and other intellectual property and
proprietary rights to permit the Bank to exercise all rights granted to
the Bank under this Section. The Bank or anyone else may be the
purchaser of any or all of the Mortgaged Property so sold and
thereafter hold such Mortgaged Property absolutely, free from any claim
or right of whatsoever kind, including any equity of redemption of the
Mortgagor, any such notice, right and/or equity of redemption being
hereby expressly waived and released;
4. No Marshalling. In the event of a foreclosure or other judicial sale of
the Mortgaged Property, the Mortgaged Property may be sold in one or
several parcels in any order the Bank, in its sole discretion, may
determine and without regard to principles of marshalling;
5. Remedies Cumulative; No Waiver. The rights, powers and remedies
hereunder and under the other Loan Documents are cumulative and
concurrent, and are not exclusive of any other rights, powers or
remedies available to the Bank. No failure or delay on the part of the
Bank in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise of any right,
power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy; and
6. Continuing Enforcement of the Loan Documents. If, after receipt of any
payment of all or any part of the Liabilities, the Bank is compelled or
agrees, for settlement purposes, to surrender such payment to any
person or entity for any reason, then this Mortgage and the other Loan
Documents shall continue in full force and effect or be reinstated, as
the case may be. The provisions of this Paragraph shall survive the
termination of this Mortgage and the other Loan Documents and shall be
and remain effective notwithstanding the payment of the Liabilities,
the release of any security interest, lien or encumbrance securing the
Liabilities or any other action which the Bank may have taken in
reliance upon its receipt of such payment.
M. Miscellaneous.
1. Notices. Notices and communications under this Mortgage shall be in
writing and shall be given by (i) hand-delivery, (ii) first class mail
(postage prepaid), or (iii) reliable overnight commercial courier
(charges prepaid) to the addresses listed in this Mortgage. Notice by
overnight courier shall be deemed to have been given and received on
the date scheduled for delivery. Notice by mail shall be deemed to have
been given and received three (3) calendar days after the date first
deposited in the United States Mail. Notice by hand-delivery shall be
deemed to have been given and received upon delivery. A party may
change its address by giving written notice to the other party as
specified herein.
2. Costs, Expenses and Professional Fees. Whether or not the transactions
contemplated by this Mortgage or any of the other Loan Documents are
fully consummated, the Mortgagor shall promptly pay (or reimburse, as
the Bank may elect) all costs and expenses which the Bank has incurred
or may hereafter incur in connection with the negotiation, preparation,
reproduction, interpretation, perfection, protection of the Mortgaged
Property, administration and enforcement of this Mortgage or any of the
other Loan Documents, including, without limitation, the commencement
and prosecution of a foreclosure action, the collection of all amounts
due under the Loan Documents, and all amendments, modifications,
consents or waivers, if any, to the Loan Documents. Such costs and
expenses shall include, without limitation, the fees and disbursements
of counsel to the Bank (including the Bank's in-house counsel), the
costs of appraisals, searches of public records, costs of filing and
recording documents with public offices, internal and/or external audit
and/or examination fees and costs, stamp, excise and other taxes, the
fees of the Bank's accountants, consultants or other professionals,
costs and expenses from any actual or attempted sale of all or any part
of the Mortgaged Property, and for the care and preparation for sale of
the Mortgaged Property (including insurance costs) and defending and
asserting the rights and claims of the Bank in respect thereof, by
litigation or otherwise. The Mortgagor's reimbursement obligations
under this Paragraph shall survive any termination of the Loan
Documents.
3. Governing Law. This Mortgage shall be construed in accordance with and
governed by the substantive laws of the State of Connecticut without
reference to conflict of laws principles.
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4. Integration; Amendment. This Mortgage and the other Loan Documents
constitute the sole agreement of the parties with respect to the
subject matter hereof and thereof and supersede all xxx negotiations
and prior writings with respect to the subject matter hereof and
thereof. No amendment of this Mortgage, and no waiver of any one or
more of the provisions hereof shall be effective unless set forth in
writing and signed by the parties hereto.
5. Successors and Assigns. This Mortgage (i) shall be binding upon the
Mortgagor and the Bank and, where applicable, their respective heirs,
executors, administrators, successors and assigns; and (ii) shall inure
to the benefit of the Mortgage and the Bank and, where applicable,
their respective heirs, executors, administrators, successors and
permitted assigns; provided, however, that the Mortgagor may not assign
its rights or obligations hereunder or any interest herein without the
prior written consent of the Bank, and any such assignment or attempted
assignment by the Mortgagor shall be void and of no effect with respect
to the Bank. The Bank may from time to time sell or assign, in whole or
in part, or grant participations in some or all of the Loan Documents
and/or the obligations evidenced thereby. The Mortgagor authorizes the
Bank to provide information concerning the Mortgagor to any prospective
purchaser, assignee or participant.
6. Severability and Consistency. The illegality, unenforceability or
inconsistency of any provision of this Mortgage or any instrument or
agreement required hereunder shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of
this Mortgage or any instrument or agreement required hereunder. The
Loan Documents are intended to be consistent. However, in the event of
any inconsistencies among any of the Loan Documents, such inconsistency
shall not affect the validity or enforceability of any Loan Document.
The Mortgagor agrees that in the event of any inconsistency or
ambiguity in any of the Loan Documents, the Loan Documents shall not be
construed against any one party but shall be interpreted consistent
with the Bank's policies and procedures.
7. Consent to Jurisdiction and Service of Process. The Mortgagor
irrevocably appoints each and every owner, partner and/or officer of
the Mortgagor as its attorneys upon whom may be served any notice,
process or pleading in any action or proceeding against it arising out
of or in connection with this Mortgage or any of the other Loan
Documents. If service of process cannot be delivered to the Mortgagor
as specified by statute, the Mortgagor agrees that, with court
approval, it may be served by regular or certified mail at the address
set forth herein. The Mortgagor hereby consents and agrees that (i) any
action or proceeding against it may be commenced and maintained in any
court within the State of Connecticut or in the United States District
Court for the District of Connecticut by service of process on any such
owner, partner and/or officer; and (ii) the courts of the State of
Connecticut and the United States District Court for the District of
Connecticut shall have jurisdiction with respect to the subject matter
hereof and the person of the Mortgagor and all collateral for the
Liabilities. The Mortgagor agrees that any action brought by the
Mortgagor shall be commenced and maintained only in a court in the
federal judicial district or county in which the Bank has its principal
place of business in Connecticut.
8. Joint and Several Liability. In the event that the Mortgagor consists
of more than one person or entity, the Liabilities of each such person
or entity shall be joint and several and the word "Mortgagor" means
each of them, any of them and/or all of them.
9. Judicial Proceedings; Waivers.
THE MORTGAGOR AND THE BANK ACKNOWLEDGE AND AGREE THAT (i) ANY SUIT,
ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY THE BANK OR THE MORTGAGOR OR ANY SUCCESSOR OR ASSIGN OF
THE BANK OR THE MORTGAGOR, ON OR WITH RESPECT TO THIS MORTGAGE, ANY
OTHER LOAN DOCUMENT, THE MORTGAGED PROPERTY OR THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO, OR THERETO, SHALL BE TRIED ONLY BY A COURT
AND NOT BY A JURY AND EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY;
(ii) EACH WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES; AND (iii) THIS SECTION IS A SPECIFIC AND MATERIAL
ASPECT OF THIS MORTGAGE AND THE BANK WOULD NOT EXTEND CREDIT TO THE
MORTGAGOR IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF
THIS MORTGAGE.
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10. Prejudgment Remedies.
THE MORTGAGOR AND ANY ENDORSER, SURETY AND GUARANTOR HEREBY
ACKNOWLEDGES THAT THIS MORTGAGE CONSTITUTES A COMMERCIAL TRANSACTION.
PURSUANT TO SECTION 52-278F OF THE CONNECTICUT GENERAL STATUES, THE
MORTGAGOR HEREBY WAIVES AND RELINQUISHES ALL RIGHTS TO NOTICE AND
HEARING AS PROVIDED IN SECTIONS 52-278A THROUGH 52-278G OF SAID
CONNECTICUT GENERAL STATUTES PRIOR TO THE SECURING OF ANY PREJUDGMENT
REMEDY AGAINST THE MORTGAGOR IN CONNECTION WITH THE LIABILITIES OR ANY
OF THE INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
IN WITNESS WHEREOF, the Mortgagor, intending to be legally bound hereby, has
executed and sealed this Mortgage, on the day and year first above written.
WITNESSES:
_____________________________________ _____________________________________
Name: Name:
Address: ____________________________ Address: ____________________________
____________________________ ____________________________
_____________________________________
Name:
Address: ____________________________
____________________________
WITNESSES:
_____________________________________ _____________________________________
Name: Name:
Address: ____________________________ Address: ____________________________
____________________________ ____________________________
_____________________________________
WITNESSES: STAR STRUCK, INC.
Corporation or Partnership Name
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxx
_____________________________________ _____________________________________
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxxxx, President
Address: ____________________________ Address: ____________________________
____________________________ ____________________________
/s/ Xxxxxxxxx Xxxxxxx
_____________________________________ (Corporate Seal)
Name: Xxxxxxxxx Xxxxxxx
Address: ____________________________
____________________________
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INDIVIDUAL ACKNOWLEDGEMENT
STATE OF CONNECTICUT )
) SS.:
COUNTY OF )
I CERTIFY that on _____________, 19____, ________________________ personally
appeared before me, who I am satisfied to be the person(s) who signed the
foregoing instrument, and acknowledged that he/she/they executed the same as
his/her/their own act.
_____________________________________
Name: _______________________________
Title: ______________________________
PARTNERSHIP ACKNOWLEDGEMENT (Non-Corporate General Partner)
STATE OF CONNECTICUT )
) SS.:
COUNTY OF )
I CERTIFY that on ________________, 19____, _______________________________, the
general partner of ______________________________, a __________________________
general/limited partnership, personally appeared before me, who I am satisfied
to be the person who signed the foregoing instrument, and acknowledged that
he/she was authorized to execute the same as the act of said partnership.
_____________________________________
Name: _______________________________
Title: ______________________________
PARTNERSHIP ACKNOWLEDGEMENT (Corporate General Partner)
STATE OF CONNECTICUT )
) SS.:
COUNTY OF )
I CERTIFY that on ________________, 19____, __________________________, the
___________________________ of ___________________________, a _________________
corporation, the general partner of ________________, a general/limited
partnership, personally appeared before me, who I am satisfied to be the person
who signed the foregoing instrument, and acknowledged that he/she was authorized
to execute the same as the act of said partnership.
_____________________________________
Name: _______________________________
Title: ______________________________
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CORPORATE ACKNOWLEDGEMENT
STATE OF CONNECTICUT )
) SS: STAMFORD
COUNTY OF FAIRFIELD )
I CERTIFY that on July 6, 1995, Xxxxxxx Xxxxxx, the President of STAR STRUCK,
------- -- -------------- --------- ------------
INC., a Connection corporation, personally appeared before me, who I am
---- ----------
satisfied to be the person who signed the foregoing instrument, and acknowledged
that he/she was authorized to execute the same as the act of said corporation.
/s/ Xxxxxxxxx Xxxxxxx
________________________________________
Xxxxxxxxx Xxxxxxx
Name: __________________________________
Commissioner of the Superior Court
Title: _________________________________
10 of 12
Schedule A
to Mortgage, Assignment of Leases, and Security Agreement - Commercial
dated July 6, 1995,
------ --
by the Mortgagor in favor of the Bank
(Attach legal description or mortgaged property)
11 of 12
SCHEDULE A
(Description)
All that certain piece or parcel of land, located in the Town of Bethel, County
of Fairfield and State of Connecticut, shown and designated as Lot No. 28 on a
certain map entitled, "Town of Bethel, Connecticut, Xxxxxxx X. Xxxxxx Industrial
Park, Subdivision Plan, Prepared for Bethel Economic Development Commission by
Lord-Wood, Xxxxxx Assoc., Inc., Engineers & Planners, Xxxxxx Assoc., Surveyors
and Engineers, Dated July 9, 1984, Revised October 9, 1984, Scale 1" = 100',"
which map is certified by Xxxx X. Xxxxx, X.X. Xx. 00000 and which map was filed
in the Land Records of the Town of Bethel on October 24, 1984, in Map File Xx.
00, Xxx Xxx. 000, 000 and 174.
Together with the right to pass and xxxxxx for all purposes over the roads as
shown on the above map to and from Route 53.
Said premises are further described as follows:
All that piece or parcel of land as shown on a map entitled, "PLOT PLAN, XXX XX.
00, XXXXXXX X. XXXXXX CIRCLE, BETHEL, CONNECTICUT, SCALE 1" = 40', DATED 5/27/87
BY XXXXXX ASSOCIATES, XXXXX X. XXXXX XXXX. L.S. LIC. #7027."
Commencing at a point said point being the northeasterly corner of the parcel
herein described said point being the northwesterly corner of other lands of the
Town of Bethel said point also being on the southerly street-line of Xxxxxxx X.
Xxxxxx Circle;
Thence South 30 deg. 19 min. 56 sec. West bounded southeasterly by other land of
the Town of Bethel a distance of 332.98 feet to a point;
Thence North 89 deg. 42 min. 04 sec. West bounded southwesterly by Xxx Xx. 00 a
distance of 199.93 feet to a point;
Thence North 09 deg. 49 min. 51 sec. East bounded northwesterly by Xxx Xx. 00 a
distance of 455.63 feet to a point;
Thence by a curve to the right along the southerly streetline of Xxxxxxx X.
Xxxxxx Circle having a radius of 270.00 feet and an arc length of 125.13 feet to
a point of tangency;
Thence South 53 deg. 36 min. 56 sec. East along the southerly streetline of
Xxxxxxx X. Xxxxxx Circle a distance of 124.12 feet to a point of curvature;
Thence by a curve to the left along the southerly streetline of Xxxxxxx X.
Xxxxxx Circle having a radius of 290.00 feet and an arc length of 86.60 feet to
the point and place of commencement.
Said above parcel contains 2.344 acres, more or less.
Exhibit A
Promissory Note
12 of 12
EXHIBIT A
---------
Term Note with Agreement - Commercial
(Connecticut)
Obligor #__________________________
Obligation #_______________________
BORROWER: STAR STRUCK, INC. Stamford, Connecticut
$800,000.00 July 6, 1995
FOR VALUE RECEIVED, and intending to be legally bound hereby, the Borrower,
jointly and severally and unconditionally promises(s) to pay to the order of
FIRST FIDELITY BANK (the "Bank") the principal sum of EIGHT HUNDRED THOUSAND AND
XX/100 DOLLARS ($800,000.00) (the "Loan"), together with interest thereon in
accordance with the payment provisions hereinafter set forth.
A. Terms of Note.
1. Payment of Principal. The principal balance hereunder shall be paid in
ninety-six (96) consecutive monthly installments in the amount of THREE THOUSAND
THREE HUNDRED THIRTY-THREE AND 33/100 Dollars ($3,333.33) each, commencing on
August 1, 1995 and continuing on the same day of each consecutive period
thereafter, with a final installment in the amount of the remaining unpaid
principal balance outstanding hereunder due and payable on July 6, 2003 (the
"Maturity Date"). The Borrower acknowledges that if all 96 regular monthly
payments of principal and interest are timely made, a balloon payment of
principal in the amount of $480,000.32 would be due on the Maturity Date as the
final installment.
2. Interest Payments. The Borrower agrees to pay to the Bank, together
with each principal payment as set forth in the preceding paragraph, interest,
in arrears, on the outstanding principal balance hereunder until the entire
principal balance hereunder, together with accrued, unpaid interest thereon is
paid in full. Interest on the outstanding principal balance hereunder shall
accrue at (i) the Bank's Base Rate plus three-quarters percent (3/4%) per annum.
The applicable interest rate will change automatically and immediately as of the
date of any change in the Bank's Base Rate, without notice to Borrower or any
guarantor.
3. Computation of Interest. Interest charged hereunder shall be computed
daily on the basis of a 360 day year for the actual number of days elapsed.
4. Payment Terms. All payments made hereunder shall be made on the due
date thereof, in immediately available funds and in lawful currency of the
United States of America. All payments made hereunder shall be made to the Bank
at its offices set forth in this Note or at such other address as the Bank shall
notify Borrower of in writing.
5. Incorporation by Reference. This Note is the note referred to in that
certain Loan Agreement dated July 6, 1995, between the Bank and the Borrower
(together with any exhibits, amendments and modifications thereto in effect from
time to time, the "Loan Agreement") and is subject to the terms and conditions
thereof, which terms and conditions are incorporated herein including, without
limitation, terms pertaining to payment, definitions, representations,
warranties, covenants, events of default, remedies and miscellaneous terms. Any
capitalized term used herein without definition shall have the meaning set forth
in the Loan Agreement.
6. Debiting of Account. The Borrower agrees to maintain an account (the
"Account") at the Bank continuously until the Liabilities due hereunder are paid
in full. The Bank may, and the Borrower authorizes the Bank to debit the Account
for the amount of any payment as and when such payment becomes due hereunder.
The foregoing rights of the Bank to debit the Borrower's accounts shall be in
addition to, and not in limitation of, any rights of set-off which the Bank may
have hereunder or under any Loan Document nor shall the rights hereunder limit
the Bank's recourse to any particular source of funds or monies.
7. Late Charge. If any payment is not paid in full when the same is due,
the Borrower shall pay the Bank a fee on such unpaid amount equal to five
percent (5%) of such amount.
8. Default Rate. At the Bank's option, interest will be assessed on any
principal which remains unpaid at the maturity of this Note, whether by
acceleration or otherwise, or upon the occurrence of an Event of Default, at a
rate which is four percent (4%) higher than the rate otherwise charged hereunder
(the "Default Rate") provided that at no time shall the Default Rate exceed the
highest rate of interest allowed by law. Such Default Rate of interest shall
also be charged during any period of time after the entry of a judgment with
respect to this Note.
9. Prepayment. If interest hereunder accrues at a floating rate,
prepayment of principal may be made at any time without prepayment penalty or
premium. If interest hereunder accrues at a fixed rate, the Loan may be prepaid,
in whole or in part, at any time, provided, that any prepayment (whether in
whole or in part and whether made
-2-
voluntarily or because of acceleration) will also be accompanied by (i) all
accrued and unpaid interest on the Loan and all other fees, expenses, and other
sums due and owing hereunder, and (ii) an amount equal to the amount described
in Exhibit B to the Loan Agreement (the "Make Whole Premium"), or, if no amount
is listed in Exhibit B thereto, then the Make Whole Premium shall be determined
by the Bank, in its sole discretion in accordance with normal banking practices.
The Bank's determination of the Make Whole Premium shall be conclusive and
binding, absent manifest error. All payments received on this Note may be
applied in such order as the Bank in its sole discretion shall determine.
10. Prejudgment Remedies. The Borrower and any endorser, surety and
guarantor hereby acknowledges that this Loan constitutes a commercial
transaction. Pursuant to Section 52-278f of the Connecticut General Statutes,
the Borrower hereby waives and relinquishes all rights to notice and hearing as
provided in Sections 52-278a through 52-278g of said Connecticut General
Statutes prior to the securing of any prejudgment remedy against the Borrower in
connection with the Liabilities or any of the instruments or documents executed
in connection herewith.
IN WITNESS WHEREOF, the Borrower has duly executed and delivered to the Bank
this Note, as of the day and year first above written.
STAR STRUCK, INC.
By: __________________________________
Name:
Title:
Address: _____________________________
_____________________________
FIRST FIDELITY BANK
Address: 000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
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